Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 33 (PNJ)

Ishwar Singh v. State Of Haryana

2008-01-09

A.N.JINDAL, UMA NATH SINGH

body2008
Judgment Uma Nath Singh, J. 1. This criminal appeal arises out of a judgment dated 30.9.1997 passed by the learned Additional Sessions Judge. Sirsa, in Sessions Case No. 106 of 1995 recording conviction of the accused under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life with a fine of in default of payment of fine, to undergo further rigorous imprisonment for six months. 2. It appears from the FIR (Ex.PG, Ex.PG/1) recorded on 20.7.1995 at about 1.45 PM at Police Station Nathusari Chopta, Sirsa, lodged by Ram Singh (PW4), younger son of the deceased Mani Ram, that Mani Ram (deceased) had three sons namely Parhlad Singh, the eldest among three and a tailor by profession; Ram Sarup, employed in police department, Haryana, and the complainant. On the intervening night of 16/17.7.1995, at about 12.00 PM, the complainant with his deceased father and son Bansi had gone to the field to irrigate. At that place, Ishwar Singh, Krishan Kumar sons of accused Girdhari Lal and Girdhari Lal himself were present in the field. Girdhari Lal and deceased Mani Ram happened to be the real brothers. The accused prevented the complainant side to use their turn of water and rather they started irrigating their own field at that time. Not only that, they also threatened them with dire consequences, asking them to leave the spot or they would be killed. On the next day, a Panchayat was held and the matter was resolved. However, the accused side namely accused-appellant Ishwar Singh, Krishan Kumar and their father Girdhari Lal were nursing grudge. On the date of incident, at about 1.00 PM, when Mani Ram deceased was standing in the courtyard of his house, accused Ishwar Singh armed with single barrel gun, Krishan Kumar armed with a brick and Girdhari Lal armed with a gandasi climbed on the roof of the complainants house from the backside, since their house was situated in the rear side of the house of the complainant. Accused Girdhari Lal exhorted accused-appellant Ishwar Singh saying that the deceased was standing at a right place and he be shot. Ishwar Singh fired a shot from his single barrel gun towards the deceased which hit in his chest towards right side, as a result of which the deceased fell down on the cot which was lying on the spot and succumbed to the said injuries there itself. Ishwar Singh fired a shot from his single barrel gun towards the deceased which hit in his chest towards right side, as a result of which the deceased fell down on the cot which was lying on the spot and succumbed to the said injuries there itself. The complainant Ram Singh and his son Bansi were present there. On seeing them, the accused appellant Ishwar Singh etc. fled away after getting down from the roof. Leaving his son Bansi near the dead body, the complainant along with Hari Singh Lamberdar of the village, went to the police station for lodging a report. 3. Accordingly a case under Section 302/34 IPC and 27 of Arms Act was registered against the accused persons. The matter was investigated. The police arrived at the scene of occurrence and prepared the inquest report in presence of Bhagwan Singh and Parhlad Singh (not examined). During the course of investigation, recovery of pallets was effected vide Ex.PJ as also the weapon of offence i.e. licensed gun of Girdhari Lal from the accused- appellant vide Ex.PN. 4. After investigation, police filed a challan under Section 302/34 IPC and Section 27 of Arms Act and accordingly charges were drawn against accused Krishan Kumar and accused-appellant Ishwar Singh. However, their father namely co-accused Girdhari Lal accused died during the pendency of the trial. 5. On conclusion of the trial, accused Krishan Kumar also found not guilty and, therefore, was acquitted, whereas, accused-appellant Ishwar Singh was held guilty under Section 302 IPC. 6. Mr. S.K. Jain, learned counsel for the accused-appellant has submitted that there was a motive for false implication of the accused-appellant inasmuch as he had lent some money vide promote Ex.DR and Ex.DF to Parhlad Singh. His father had also given some loan to him. The father of the accused- appellant, co-accused Girdhari Lal who was returning from the field with his licensed gun was called inside the house of Mani Ram and Ram Singh to settle the account. He was attacked and chased. Finding no other option he fired from his licensed gun causing the death of deceased Mani Ram. The father of the accused- appellant, co-accused Girdhari Lal who was returning from the field with his licensed gun was called inside the house of Mani Ram and Ram Singh to settle the account. He was attacked and chased. Finding no other option he fired from his licensed gun causing the death of deceased Mani Ram. This is also a submission of the learned counsel for the appellant that during examination under Section 313 Cr.P.C. the accused-appellant has denied any enmity or grudge over watering of field and taken a plea that he has been falsely implicated only due to dispute over loan amount. This is a further submission of the learned counsel for the appellant that Ram Singh and his son Bansi Lal were not present at the scene of occurrence, therefore, they were not eye the witnesses of the case. Learned counsel has referred to the statement (Ex.DA) given by Parhlad Singh (not examined), brother of the complainant, which goes to suggest that the complainant could not have been present at the spot and he was residing separately from his father Mani Ram. This is also a submission of the learned counsel that one of the sons of the deceased namely Ram Sarup being witness to the disclosure statement and recovery of gun was working in the police department and, therefore, under his influence the S.H.O. has falsely implicated the accused-appellant. This is his further submission that Parhlad, though an important witness to the circumstances leading to the commission of offence being the son of the deceased has not been produced in the witness box for the reasons better known to the prosecution. Had he been produced in the witness box, perhaps he would have revealed the truth. It is contended that if the gun was recovered from the accused-appellant, the prosecution could have done well by sending it to the Finger Print Expert for a report as to whether finger prints of the accused were noticed on the weapon. Moreover, though the incident took place inside the courtyard of the house of the deceased, no independent witness from the locality, who were present, has been associated. Learned counsel has also submitted that in view of the statement of Dr. R.P. Dahiya (PW3), the prosecution case as regards the position of the body of the deceased and the direction of firing were not possible. 7. Learned counsel has also submitted that in view of the statement of Dr. R.P. Dahiya (PW3), the prosecution case as regards the position of the body of the deceased and the direction of firing were not possible. 7. On the other hand, Ms. Ritu Punj, learned Deputy Advocate General, Haryana, has submitted that though the witnesses to the disclosure and seizure have not been produced in the witness box but that may not affect the prosecution case inasmuch as the Investigating Officer, who is the author of the memos, has appeared before the court and given a complete statement fully supporting the prosecution case. This is also a submission of the learned Deputy Advocate General, Haryana, that only because some independent witness from the locality was not associated, the presence of the witnesses does not become doubtful. Moreover, the statement of Parhlad given during inquiry into the circumstances of the death of the co-accused Girdhari Lal, later on, are not at all relevant for appreciation of evidence on record of this case nor is that is admissible in evidence. Learned Deputy Advocate General, Haryana, also submitted that the recovery of the incriminating articles have also been fully proved. 8. We have carefully considered the rival submissions and perused the record. 9. The offence was committed during the broad day light at 1.00 PM and the FIR (Ex.PG, Ex.PG/1) was immediately lodged within 45 minnutes. The police reached the spot and the inquest was prepared soon thereafter. The statement given in the inquest report, is identical to the FIR lodged by the complainant. The accused-appellant has admitted the incidents but has raised his contention that the gun shot was not fired by him but by his father Girdhari Lal in his self defence. It does not stand to the reason as to how accused Girdhari Lal used to carry a gun, though licensed one, even to his fields when there was no threat perception because of enmity with any person of the locality or of the family. This also does not seem probable as to why Parhlad Singh brought accused Girdhari Lal to his fathers house when he himself was living away separately and he had borrowed the money. This is also improbable that when accused Girdhari Lal was carrying a gun he could have been assaulted or chased by the complainant. This also does not seem probable as to why Parhlad Singh brought accused Girdhari Lal to his fathers house when he himself was living away separately and he had borrowed the money. This is also improbable that when accused Girdhari Lal was carrying a gun he could have been assaulted or chased by the complainant. Had he been chased he would have come out of the house and not that he was forced to fire a gun shot inside the courtyard. Simply because the witnesses to the inquest, disclosure statement and recovery memos have not come in the witness box, it does not mean that the evidence of Investigating Officer SI Sher Singh (PW6) was incredible. He has fully supported the disclosure statement made by the accused-appellant and also the recovery of .12 bore gun with two live cartridges. This is also not disputed that the accused died at the spot having received a gun shot injury which was fired from the licensed gun of Girdhari Lal (since deceased). Thus, the intention to commit murder was writ large as is evident from the records of the case. Besides the FIR was lodged immediately after the incident within 45 minutes after covering a distance of 11 kms and the name of the accused- appellant has been prominently mentioned attributing a specific role of causing death of the deceased at the spot. In no manner it leaves any ambiguity as regards the presence and participation of the accused in the commission of the offence, although he has tried to explain that he was falsely implicated only because of the dispute over loan amount. 10. As regards not sending the weapon to the Finger Print Expert, we have perused the recovery memo Ex.PN. It does not disclose that the gun was handed over by the accused to the Investigating Officer. Moreover, taking shelter under an inquiry, where Parhlad, a son of the deceased, had made some statement would not help in this case inasmuch as the said statement is not admissible in evidence for this case, and that is altogether a different cause of action, if at all, against the complainant side. The investigating Officer so also the eye witnesses have fully supported the prosecution case. In cross examination, Ram Singh (PW4) has categorically denied all the defence suggestions as canvassed by the learned counsel for the appellant during the course of submissions. The investigating Officer so also the eye witnesses have fully supported the prosecution case. In cross examination, Ram Singh (PW4) has categorically denied all the defence suggestions as canvassed by the learned counsel for the appellant during the course of submissions. In cross examination he has reiterated that the accused-appellant Ishwar Singh and his deceased father Girdhari Lal were also present in the Panchayat called on 17.7.1995. lie has also reiterated that the complainant side has no grudge against the accused. regarding dispute over water after the matter was settled by the Panchayat. He further reiterated that he does not know if his brother Parhlad had told the police during the inquiry into death of Girdhari Lal that at the time of the present occurrence, Girdhari Lal was armed with Gandasi and Krishan Kumar accused was having a brick in his hand. He has further stated that is a fact that the gun used in this case was the licensed gun of accused Girdhari Lal (since deceased). He denied to have stated and verified the aforesaid facts as stated by Parhlad to the police at the time of inquiry into the circumstances of death of Girdhari Lal accused. The land of the parties were situated at a distance of 8/10 killas from their house. Whenever, Girdhari Lal (now deceased) used to go to fields, he would pass through the front of their house. He denied that he and his son were not present at the time of occurrence or that he was summoned afterwards and thereafter he lodged the FIR. He further denied that Hari Lamberdar and one Ram Karan, their relatives took Girdhari Lal inside their house when he was coming from his fields with gun. He admitted that his father was present in the house. However, he denied that there was a dispute over payment of money between his father Mani Ram and his uncle Girdhari Lal accused. He further denied that there was no dispute over use of water to irrigate their between the parties. He also denied that his lather being armed with a Gandasi had chased accused Girdhari Lal while attempting to cause him injuries and that Girdhari Lal had run for his safety. He has also denied that Girdhari Lal fired at his father in self-defence when his father continued to chase him for assaulting. He also denied that his lather being armed with a Gandasi had chased accused Girdhari Lal while attempting to cause him injuries and that Girdhari Lal had run for his safety. He has also denied that Girdhari Lal fired at his father in self-defence when his father continued to chase him for assaulting. He also denied that no firing took place from the roof of the kotha. He further denied that Ishwar Singh accused and Krishan Kumar accused were not present at that time. He admitted that Girdhari Lal has got two sons namely Ishwar Singh and Krishan who are accused in this case. His father Mani Ram was standing near the wall of the room with his back towards that wall. He denied that he has made false statement or that the accused have been falsely implicated in the case. 11. The testimony of Ram Singh (PW4) is supported by his son Bansi Lal (PW5) in material particulars. As regards the evidence of Investigating Officer SI Sher Singh (PW6), he has owned the recording of disclosure statement and all the memos prepared in his handwriting during investigation. From his lengthy cross examinations nothing has emerged to impeach the credibility of the prosecution evidence. Dr. R.P. Dahiya (PW3) who conducted the postmortem examination of the dead body of deceased Mani Ram has proved the postmortem report and noticed the following injuries : "1.3 cms x 1 cm lacerated wound was present on lateral aspect of right side of chest in anterior axmillary line at the level of nipple right, 13 cms from it. The wound was surrounded by multiple lacerated wounds of size 0.6 cm x 0.4 cm extending over lateral aspect of right side of chest, front of right side of chest, front of left side of chest, medial to left nipple, lateral aspect of right side of upper abdomen. Margins of all the wounds were inverted, colour of abrasion was present. These wounds were in an area of 46 cms x 39 cros. Corresponding holes were present in worn shirt. On dissection :- Right horacic cavity was full of blood. There were multiple punctured wounds in right and left chest wall, black plastic cork was found lodged in the chest corresponding to the big wound. There were multiple punctured wounds present in right lung, few of them were through and through. Pericardial cavity was full of blood. On dissection :- Right horacic cavity was full of blood. There were multiple punctured wounds in right and left chest wall, black plastic cork was found lodged in the chest corresponding to the big wound. There were multiple punctured wounds present in right lung, few of them were through and through. Pericardial cavity was full of blood. A punctured wound was present on lateral aspect of right ventricle through and through. Multiple punctured wounds were present in the right lobe of liver, stomach, large intestines and omentom. Pericardial cavity was full of blood. 17 (seventeen) metallic pallets were removed from the body from right side of chest wall, right lung, one from right heart chamber, right lobe of liver, stomach and large intestines. All were sealed and handed over to police. Rest of the organs were healthy." 12 He has pointed out that the cause of death in his opinion was hemorrhage and shock due to fire arm injuries as described above. 13. Thus, in view of the preponderance of incriminating evidence against the accused-appellant, it is difficult for us to accede to the submissions of the learned, counsel for the accused-appellant. We do not find any reason to take a different view from what the trial court has taken. 14. Consequently, the instant appeal stands dismissed and the impugned judgment is affirmed.