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2008 DIGILAW 649 (PNJ)

Vinod v. State Of Haryana

2008-03-05

A.N.JINDAL, UMA NATH SINGH

body2008
Judgment Uma Nath Singh, J. 1. This judgment shall also dispose of Crl. Appeal No. 470-DB of 2007 (Manoj v. State of Haryana) and Murder Reference No. 5 of 2007 (State of Haryana v. Manoj and another), as these matters, namely, Crl. Appeals by the accused-appellants and murder reference by the State, arise out of a judgment dated 16.4.2007 passed by learned Additional Sessions Judge (I), Bhiwani, in Sessions Trial No. 48 of 27.3.2004. The learned Additional Sessions Judge has passed the judgment of conviction and sentence as under : Name of the Accused Convicted under Section Sentence Imposed, Manoj 307 IPC RI for ten years with a fine of Rs. 5000/-; in default of payment of fine, to further undergo RI for two years and six months. -do- 302/34 IPC Sentence of death. -do- 353 IPC RI for two years with a fine of Rs. 2000/-; in default of payment of fine, to further undergo RI for six months. -do- 25 of Arms Act RI for two years with a fine of Rs. 2000/-; in default of payment of fine, to further undergo RI for six months. Vinod 302 IPC Sentence of death. -do- 397 IPC RI for seven years with a fine of Rs. 5000/-; in default of payment of fine, to further undergo RI for one year and six months. -do- 353 IPC RI for two years with a fine of Rs. 2000/-; in default of payment of fine, to further undergo RI for six months. -do- 25 of Arms Act RI for three years with a fine of Rs. 3000/-; in default of payment of fine, to further undergo RI for nine months. 2. Though, accused Vinod and Anoop @ Kirori (declared to be a proclaimed offender) have also been held guilty of the offence under Section 307 IPC read with Section 34 IPC by the learned trial Judge but he has not awarded any sentence in respect of accused Vinod on that count. Moreover, it appears that, by mistake, the learned trial Judge has held the absconding accused Anoop @ Kirori guilty under Sections 307/34 IPC even though the said accused has not been tried jointly in this sessions case. 3. Moreover, it appears that, by mistake, the learned trial Judge has held the absconding accused Anoop @ Kirori guilty under Sections 307/34 IPC even though the said accused has not been tried jointly in this sessions case. 3. However, learned trial Judge has acquitted accused appellant Manoj of the charge under Section 332/34 IPC and three other co-accused persons, namely, Rajesh, Ravi Kumar Jain and Gulshan, of the charge under Section 216-A IPC. 4. As per prosecution case, it appears from the ruqa (Ex.PE-PE/1) and FIR (Ex.PF/1) that MHC, PS Siwani, received a V.T. message from Hissar that three youths had snatched a motorcycle from Hrita Bridge and run away towards Sharva Miran. Pursuant thereto, author of the FIR, SI/SHO Bhagwan Dass, PS Siwani, set out with HC Dhruv No. 887 and HC Kailash Chand No. 452, in a Government Jeep No. HR-16-0935, driven by Constable Subhash No. 407, to Dhoolkot Chowk, Rupana, for nakabandi (laying blockade). The nakabandi started at about 5.30 PM. At that time, Constable Sushil Kumar (No. 977), who was posted as Naib Court, JMIC, Siwani, met the SHO. While the SHO was talking to him, a motorcycle of black colour was noticed coming from Siwani side with three youths riding it. Having seen the police party, they turned back the motorcycle and fled away. The SHO with other police officials and Constable Sushil Kumar, followed them in the Government jeep. However, the motorcyclists turned the vehicle towards the middle street of Rupana but the vehicle was caught into mud in the street. Hence, they abandoned the motorcycle there and fled away. Seeing that, the SI/SHO along with HC Dhruv, HC Kailash and Constable Sushil Kumar also left the jeep and ran behind them to apprehend. The miscreants crossed the village and entered into a field. The SHO surrounded the field from Dhoolkot side along with other police personnel, therefore, the miscreants turned towards the Talwandi road. In the meantime, Driver of the Government vehicle, Constable Subhash, brought the jeep from Dhoolkot Road to Talwandi Road and surrounded the miscreants. He caught hold of one of them. In the meantime, other two accused fired 2 to 3 rounds at Constable Subhash. The accused, who was caught hold of by Constable Subhash, also fired from his pistol not at Subhash but at Constable Sushil, which, however, did not hit him. He caught hold of one of them. In the meantime, other two accused fired 2 to 3 rounds at Constable Subhash. The accused, who was caught hold of by Constable Subhash, also fired from his pistol not at Subhash but at Constable Sushil, which, however, did not hit him. The SHO also fired two rounds from his service pistol, and then he along with other police officials managed to apprehend the accused, who had been caught by Subhash and who had fired at Constable Sushil Kumar. Having received bullet injuries, the driver of the jeep, Constable Subhash, became unconscious and collapsed on the ground. The other two accused managed to flee away, in the Government jeep, along with a police SLR and a magazine of 15 rounds lying therein, towards village Talwandi while indulging in firing. The accused, who was apprehended on the spot, also tried to free himself. During the course of occurrence, the accused and Constable Sushil, received injuries. On enquiry, the accused revealed his name as Manoj son of Narender and the names of his two associates as Vinod son of Lachhi and Anoop son of Rattan Singh, Jat. From the search of accused Manoj, a country made pistol along with magazine and 4 live cartridges of 9 mm were recovered. The SHO flashed the message throughout the district informing the police to hold nakabandi. ASI Madan Lal reached the spot on his motorcycle on receiving the message and accused Manoj along with his country made pistol was handed over to him. The SHO arranged a private jeep and carried Constable Subhash to Hissar for treatment. By the time he could reach the CMC, Hissar, Constable Subhash succumbed to the fire arm injuries. 5. On the basis of aforesaid information, a case under Sections 332, 353, 302, 307, 392 and 397 read with Section 34 IPC and Sections 25/27/54 of the Arms, was registered. During the course of investigation, as per Ex.PF, the inquest of dead body of the deceased was conducted by SHO Bhagwan Dass on 3.12.2003. During inspection of dead body, he noticed a bullet mark on the left cheek and another bullet injury on the right side limbs. The dead body was bleeding from the nose. The special report under Section 157 Cr.P.C. was sent to learned Illaqa Magistrate on 4.12.2003 at 2.45 AM after covering a distance of 50 kms. 6. During inspection of dead body, he noticed a bullet mark on the left cheek and another bullet injury on the right side limbs. The dead body was bleeding from the nose. The special report under Section 157 Cr.P.C. was sent to learned Illaqa Magistrate on 4.12.2003 at 2.45 AM after covering a distance of 50 kms. 6. On 4.12.2003, Dr. Anil Sharma, MO, (PW9), conducted the postmortem examination on the dead body of deceased Subhash and noticed the following injuries :- "1. There was a contusion 4" X .5" with pinkish discoloration on the scalp in the middle. On opening there was clotted blood present in the subcutaneous tissues, the wound was anti-mortem in nature. 2. There was a lacerated wound .5 cm X .5 cm on the left side of face and was skin deep. 3. There was a lacerated wound with inverted margins 1 cm in diameter, on the right side chest 6 cm below the nipple, piercing chest muscles then going onto the omentum injuring right side pleura and lung injuring then and going deep and entering into D-2 vertebra. On exploration, a metallic part of the bullet was found. The same was sealed in glass vial bearing one seal. The vertebra was badly crushed and the whole abdominal cavity was full of blood. The injury was antimortem in nature. Scalp, skull, walls, ribs and cartilages, larynx and trachea, left lung, heart, pericardium and large vessels, abdominal wall, mouth, pharynx and oesophagus, stomach and its contents, small intestine and large intestine, liver, spleen, kidney both bladder, organs of generation were healthy and rest of the organs as described in the injuries parts." 7. According to the Doctor, the cause of death was due to haemorrhage and shock as a result of injuries, as described above. The injuries were anti mortem in nature and were sufficient to cause death in the ordinary course of nature. The time between injuries and death was few minutes and the time between death and postmortem was within 24 hours. 8. Dr. Kirti Raj, MO, (PW3), on 3.12.2003 examined accused Manoj and found the following injuries : "1. Tenderness was present on right leg. 2. Bruise of the size of 3x10 cm linear oblique, reddish in colour on right arm laterally. Tenderness was present. 3. 8. Dr. Kirti Raj, MO, (PW3), on 3.12.2003 examined accused Manoj and found the following injuries : "1. Tenderness was present on right leg. 2. Bruise of the size of 3x10 cm linear oblique, reddish in colour on right arm laterally. Tenderness was present. 3. Lacerated wound of the size of 3.5 cm x 1 cm was present over the occipital region of head. Slight amount of bleeding was present. 4. Tenderness was present over left buttuck region. There was no external injury. 5. Tenderness was present over left flank posteriorly. All the injuries were declared as simple and found to be caused with blunt weapon within a duration of 12 hours. Ex.PC/1 is the correct carbon copy of the MLR, which bears my signature." 9. The same day, the same doctor also examined police Constable Sushil Kumar and found the following injuries : 1. Abrasion of the size .5 x 1 cm over dorsal side of right thumb. 2. Tenderness was present over right buttock region. 3. Bruise of the size of 3 x 4 cm over anterior side of the chest. 4. Bruise of the size of 2x 3 cm over right elbow dorsal region. All the injuries were declared as simple and found to be caused by a blunt weapon within the probable duration of 12 hours. ...." 10. During the course of investigation, vide recovery memo (Ex.PA), Bhagwan Dass, SI/SHO, seized one country made pistol of 9 mm size along with 4 live cartridges from accused Manoj and also his own service pistol of 9 mm size along with magazine. From his service pistol of 9 mm with No. 15174717, he had fired two rounds of cartridges. Vide the recovery memo (Ex.PB), the Government Jeep No. HR-16A/0935 of blue colour, was taken into possession from the spot, near village Lalhana, on approach road to Hetampura. The jeep belonged to PS Siwani. Vide Ex.PC, one Yammaha motorcycle with No. HR-35-3713 was recovered in front of the house of one Rajbir son of Maru Ram, Jat, which had been abandoned there, by the accused. Vide Ex.PU, SLR 762 with magazine and cartridges, was recovered after the disclosure statement of accused Vinod, given in police custody on 13.8.2005. It was recovered from a locked room, where the SLR with magazine and 15 cartridges, was lying on a cot. Vide Ex.PU, SLR 762 with magazine and cartridges, was recovered after the disclosure statement of accused Vinod, given in police custody on 13.8.2005. It was recovered from a locked room, where the SLR with magazine and 15 cartridges, was lying on a cot. On pointing out by accused Vinod, an identification memo (Ex.PV) in respect of the scene of occurrence was prepared on 15.8.2005. 11. After completion of investigation, the police laid a challan under Sections 332, 353, 397, 307, 302 read with Section 34 IPC against the accused persons, namely, Manoj and Vinod, whereas three other accused, namely, Ravi Kumar, Rajesh and Gulshan were challaned only under Section 216-A IPC. Accused appellants Manoj and Vinod were also charged under Section 25 of the Arms Act. Thus, all the five accused appellants were tried upon in terms of the charges framed agaisnt them but only accused Vinod and Manoj were found guilty and sentenced on various counts as aforesaid and the rest three accused namely Ravi Kumar, Rajesh and Gulshan were acquitted of the charge under Section 216-A IPC. 12. Heard learned counsel for the parties and perused the records. 13. Learned senior counsel Shri R.S. Cheema, appeared for accused- appellant Vinod, and learned counsel Shri Atul Lakhanpal, for accused appellant Manoj. Shri R.S. Cheema, learned senior counsel, contended that the police had a motive to falsely implicate the accused, as after the instant incident dated 3.12.2003, the police have implicated the accused in a number of cases. According to learned senior counsel, though there was a delay in the arrest, but the accused were not put to identification parade. Learned trial Judge who had earlier conducted the Sessions Trial No. 30 of 23.2.2005 in respect of later occurrence dated 12.10.2004 under Sections 395 and 397 IPC, and had convicted and awarded sentence of life imprisonment to the accused has also conducted the instant sessions trial for an earlier occurrence dated 3.12.2003 and has held the accused persons guilty of various charges including the one of murder and has awarded them the extreme penalty of death sentence. Thus the learned Judge was influenced by alleged criminal antecedents of the accused appellants including the said offences under Sections 395 and 397 IPC which was committed after the present offence. Thus the learned Judge was influenced by alleged criminal antecedents of the accused appellants including the said offences under Sections 395 and 397 IPC which was committed after the present offence. In order to maintain the high tradition of judicial impartiality, the learned Additional Sessions Judge should have transferred the case to some other Court, as his earlier order in respect of a later occurrence has acted as a bias. This is also a submission of learned senior counsel that it is not clear as to who had fired the gun shot which hit the deceased, as the bullet taken out from the dead body showed that the gun shot was fired from a regular service revolver of .38 bore. From the postmortem report, only one injury appears to be clear, although it has been alleged that all the three accused had fired. This is also not clear as to which types of weapons were used in the commission of offence and by whom. This is not a case where other pending criminal cases and the antecedents of the accused appellants should have been taken to brand them as die-hard criminals. Though the deceased was shifted from the spot of incident to the hospital at Hissar in a private jeep, but the owner or the driver of the jeep has not been examined. The place of incident was not very far from the abadi area, but no independent witness has been examined. Even the time of incident is not clear, as from the statements of SI/SHO Bhagwan Dass, and ASI Madan Lal, it appears that the process of shifting the deceased had started at 5.30 PM, but in the FIR, a different time of occurrence has been recorded. There was a delay of 4 hours in lodging the FIR and the only explanation which has been given for delay is that the police was more worried and concerned about shifting of the deceased to a hospital in injured condition for immediate treatment than the lodging of an FIR. According to learned senior counsel, this is a case where the police party which had carried the operation consisted of 5 police officials and only the driver of police vehicle had suffered the gun-shot injuries. Thus, one of the police personnel could have informed the police station timely. According to learned senior counsel, this is a case where the police party which had carried the operation consisted of 5 police officials and only the driver of police vehicle had suffered the gun-shot injuries. Thus, one of the police personnel could have informed the police station timely. There is an inordinate delay in sending the special report to learned Illaqa Magistrate, which was delivered on 4.12.2003 at 2.45 AM. When accused Manoj had been caught hold of by the deceased, this is inconceivable that the other two co-accused persons would have thought of firing at the deceased without hitting accused Manoj. The exact location of places, where nakabandi was held, where accused were chased and where the occurrence took place, are not clear. At one place, Head Constable Dhruv (PW13) has stated that the desperadoes had entered into some house but no investigation was carried out in that regard. As this is not clear as to who had fired the fatal gun shot and as one of the accused persons, namely, Anoop @ Kirori is a proclaimed offender, the accused could not have been held guilty of offence of murder and sentenced to death. Constable Sushil Kumar (PW3), SI Bhagwan Dass (PW4), HC Kailash (PW5) and HC Dhruv (PW13) have not given clear description about identity of accused Vinod and Anoop, therefore, accused Vinod should have been put to test identification parade. This is also a submission of learned senior counsel that though ASI Madan Lal (PW1) received a V.T. message at 1.45 AM on 4.12.2003 that the police jeep of PS Siwani was lying abandoned in the area of village Lehlana but the documents relating to recovery of jeep have not been produced. Thus the accused cannot be connected with the recovery of jeep. This is also a submission of learned senior counsel that the SLR was recovered from Churu in Rajasthan, therefore, the Churu Court had jurisdiction over the offence under the Arms Act and only the official witnesses, namely, ASI Jagdish Chander (PW16) and SI Nihal Singh (PW17) are the witnesses of recovery proceedings and no local person was associated with that proceedings. Thus the recovery was effected in violation of Section 100(4) Cr.P.C. Even the disclosure statement, being Mark `A, dated 17.7.2005 is also not clear. Thus the recovery was effected in violation of Section 100(4) Cr.P.C. Even the disclosure statement, being Mark `A, dated 17.7.2005 is also not clear. If the police jeep was driven away in order to escape arrest, then that would not constitute an offence under the Arms Act for it was not within the knowledge of the accused that an SLR and magazine were lying in side the vehicle. This is a further submission of learned senior counsel that even Section 34 IPC would not apply, as to make it a case of common intention, all the three accused persons should have been attributed some overt acts, like firing simultaneously at the police party during the course of occurrence. 14. Learned counsel Shri Atul Lakhanpal, appearing for accused appellant Manoj, submitted that Honble the Apex Court in the case of Kashmira Singh v. State of Punjab (AIR 1994 SC 1651) has discussed the applicability of Section 34 IPC in para 3 of the judgment as under : "3. Common intention is to be inferred from the circumstances particularly the part played by the accused and the surrounding circumstances namely nature of the weapon used and the injury inflicted as well as the meeting of the minds among the accused who are being held constructively liable. The facts stated above would reveal that the appellant tried to pick the pocket of PW5 who called the deceased and the deceased tried to catch hold of the appellant and it was a sudden act on the part of the William who picked out a knife from his pocket and inflicted a single injury on the deceased. Under those circumstances it cannot be held that the appellant and Sukhchain Singh had prior knowledge that William was armed with a knife and the part played by William cannot be said to be a conjoint act so as to attract the element of common intention on the part of the appellant as well as Sukhchain Singh ........" 15. According to learned counsel, the accused appellants were not declared as proclaimed offenders, therefore, they were not required to be chased and arrested on the basis of suspicion. Though accused appellant Manoj was in the grip of police Constable, deceased Subhash, but he had not exhorted other two accused persons to fire and the allegation of firing at Sushil Kumar (PW3) also does not seem to be probable. Though accused appellant Manoj was in the grip of police Constable, deceased Subhash, but he had not exhorted other two accused persons to fire and the allegation of firing at Sushil Kumar (PW3) also does not seem to be probable. This is also a submission of learned counsel that there is a contradiction between ocular evidence and medical evidence, as the nature and number of injuries noticed in the medical report do not suggest that accused Manoj had fired the fatal gun shot sustained by the deceased. 16. On the other hand, Shri B.S. Randhawa, learned Additional Advocate General, Haryana, submitted that though the accused appellants were not required in connection with any offence but having received a V.T. message that three youths had snatched a motorcycle and fled away, the police had held a nakabandi. The very fact that the accused turned their motorcycle and retreated fast, a suspicion was caused in the mind of the police party and it started chasing them. There are enough ocular and circumstantial evidences to support the prosecution case. He also cited two judgments of Honble the Apex Court in support of his arguments. They are reported in (i) 2005(2) RCR (Crl.) 708 (Saibana v. State of Karnataka) and (ii) 2002 (2) RCR (Crl.) 567 (Krishna Mochi and others v. State of Bihar etc.). 17. Heard learned counsel for the parties and perused the record. 18. He also cited two judgments of Honble the Apex Court in support of his arguments. They are reported in (i) 2005(2) RCR (Crl.) 708 (Saibana v. State of Karnataka) and (ii) 2002 (2) RCR (Crl.) 567 (Krishna Mochi and others v. State of Bihar etc.). 17. Heard learned counsel for the parties and perused the record. 18. The prosecution examined as many as 26 witnesses, namely, (1) ASI Madan Lal (PW1), (2) HC Satbir Singh (PW2), (3) Constable Sushil Kumar, eye witness, (PW3) and Dr.Kirti Raj, who is also numbered as PW3, (4) SI Bhagwan Dass, complainant (PW4), ( 5) HC Kailash Chander (PW5), (6) ASI Satyawan (PW6), (7) Inspector Ram Avtar (PW7), (8) MHC Shyam Sunder (PW8), (9) Dr.Anil Sharma (PW9), (10) Constable Surinder Singh (PW10), (11) Santosh Kumar, Patwari (PW11), (12) Bhisham Chander, Reader to District Magistrate, Bhiwani (PW12), (13) HC Dhruv, eye witness, (PW13), (14) Constable Suresh Kumar No.945 (PW14), (15) Rajpati (PW15), (16) ASI Jagdish Chander (PW16), (17) SI Nihal Singh (PW17), (18) SI Shree Krishan (PW18), (19) HC Jai Bhagwan No. 571 (PW19), (20) Constable Satish Kumar No. 668 (PW20), (21) ASI Satbir Singh (PW21), (22) Inspector Randhir Singh (PW22), (23) HC Chhattar Singh (PW23), (24) SI Ram Kumar (PW24), (25) EHC Satish Kumar 494 (PW25), and (26) Shree Bhagwan, Sarpanch (PW26) and the defence has produced one namely Virat Jain as DW1. Out of 26 prosecution witnesses, testimonies of Constable Sushil Kumar (PW3), SI Bhagwan Dass (PW4), HC Kailash Chander (PW5) and HC Dhruv (PW13) seem to be clinching in nature. 19. On a re-appreciation of rival evidence, it appears that a VT message (Ex.PK) was received by SI/SHO Bhagwan Dass (PW4), Police Station Siwani, on 3.12.2003 at 3.55 PM from the SP,Hissar, that three youths having snatched a Hero Honda motorcycle from Harit Bridge had run away towards Sarva Miran. Though the motorcycle was not a Hero Honda as vide recovery memo (Ex.PC and Ex.PC/1), it was a Yamaha motorcycle with number HR-35-3713 of black colour, but when the SHO with police party laid a nakabandi, three youths in the said motorcycle were noticed coming and having seen the police party holding nakabandi, abruptly turned the motorcycle and retreated. Constable Sushil Kumar (PW3) and ASI Satyawan (PW6) are the witnesses of recovery, who have fully supported the prosecution case. Constable Sushil Kumar (PW3) and ASI Satyawan (PW6) are the witnesses of recovery, who have fully supported the prosecution case. Thus, the credibility of VT message that three youths had snatched a motorcycle and were going towards Sarva Miran stood established from the aforesaid materials on record. Constable Sushil Kumar (PW3) and ASI Satyawan (PW6) are the witnesses of recovery, who have fully supported the prosecution case. Thus, the credibility of VT message that three youths had snatched a motorcycle and were going towards Sarva Miran stood established from the aforesaid materials on record. In their testimonies, Constable Sushil Kumar (PW3), SI/SHO Bhagwan Dass (PW4), HC Kailash Chander (PW5) and HC Dhruv (PW13) have reiterated the following facts of the prosecution case, namely : (i) that SI/SHO Bhagwan Dass (PW4) along with HC Dhruv Kumar (PW3), HC Kailash Chander (PW5), deceased Constable Subhash reached Dhoolkot Chowk, Rupana, for nakabandi; (ii) that the nakabandi started at about 5.30 PM; (iii) that, at that time, injured Constable Sushil Kumar No. 977 posted as Naib Court, JMIC, Siwani, reached and the SHO was talking to him; (iv) that in the meantime, a motorcycle of black colour came from Siwani side with three youths/accused sitting on that; (v) that the youths turned the motorcycle and retreated fast seeing the police party; (vi) that police officials with Constable Sushil Kumar in Government jeep followed them and in the middle street of Rupana, as there was mud in the street, the motorcycle was abandoned and the youths fled away; (vii) that SI/SHO Bhagwan Dass (PW4) along with HC Dhruv Kumar (PW3), HC Kailash Chander (PW5) and Constable Sushil Kumar left the jeep and ran behind them; (viii) that three youths/accused crossed the village and entered the fields; (ix) that SI/SHO Bhagwan Dass (PW4) surrounded the fields from Dhoolkot side along with other police officials and the miscreants turned towards the road of Talwandi; (x) that, in the meantime, driver of the police jeep Constable Subhash brought the jeep from Dhoolkot road to Talwandi road and surrounded the youths/accused; (xi) that deceased Constable Subhash caught hold of one of the accused and then two other accused fired on Subhash 2-3 rounds; (xii) that at that time the SHO with other police officials reached there; (xiii) that, at that time, the miscreant, who had been taken in grip by deceased Subhash, fired from his pistol at Constable Sushil Kumar, which did not hit him; (xiv) that, at that time, the SHO fired 2 rounds from his service pistol at the miscreants; (xv) that, in the meantime, accused Manoj, who was in the grip of deceased Constable Subhash, was overpowered by the police party; (xvi) that Constable Subhash, who had caught hold of accused Manoj, collapsed on the ground having received the gun shot injury; (xvii) that other two accused Vinod and Anoop @ Kirori fled away in Government jeep, which was standing in started position, with one SLR and magazine having 15 cartridges lying in it, towards Talwandi Badshahpur while firing from their weapons; (xviii) that the accused who had been apprehended on the spot also tried to free himself and during the course of occurrence accused Manoj and Constable Sushil Kumar, both, received injuries; (xix) that on interrogation by SI/SHO Bhagwan Dass (PW4), the accused disclosed his identity and also the names and details of other two accused Vinod and Anoop @ Kirori; (xx) that from the possession of accused Manoj, a 9 MM country made pistol, a magazine and 4 live cartridges were recovered; (xxi) that the SHO flashed a VT message about the incident all over in the district to hold nakabandi; (xxii) that, in the meantime, ASI Madan Lal having received information reached the spot in his motorcycle and the SHO handed over accused Manoj and country made pistol with magazine and live cartridges recovered from him to him (ASI Madan Lal), and (xxiii) that the SHO arranged a private jeep and carried along Constable Subhash for treatment towards Hissar but the Constable succumbed to the injuries near CMC Hissar. 20. We have carefully considered the evidence of the aforesaid eye witnesses and find that their testimonies consistently support the prosecution case on the circumstances as detailed above. As regards the testimonies of other witnesses, ASI Satyawan (PW6) had received a ruqa (Ex.PE) through HC Dhruv Kumar (PW13) and recorded FIR (Ex.PE/1). He had sent special report to the Illaqa Magistrate through Constable Suresh Kumar (PW14). On the direction of the SHO, he had reached the spot to inspect the scene of occurrence. On 4.12.2003, SI Bhagwan Dass (PW4) had taken into possession one motorcycle which was lying on the spot as abandoned by the assailants, vide memo (Ex.PC), which was also attested by this witness (PW6). He identified the motorcycle in the Court premises. In his presence, accused Manoj had made disclosure statement (Ex.PD). He has denied the defence suggestion that the FIR was ante time and all other defence suggestions contrary to the prosecution case. Inspector Ram Avtar (PW7) has stated that on 4.12.2003, accused Manoj had been handed over to him by SI Bhagwan Dass, SHO, PS Siwani. He had interrogated accused Manoj and also recorded the statements of ASI Rampal (not examined) and HC Satbir Singh (PW2) under Section 161 Cr.P.C. He has also denied all the defence suggestions contrary to the prosecution case. MHC Shyam Sunder (PW8) proved the DDR (Ex.PK), the record showing that SI/SHO Bhagwan Dass (PW4) with HC Dhruv (PW13), HC Kailash Chander (PW5) and Constable Subhash (deceased) were on duty. He has withstood the cross-examination. Constable Surinder Singh (PW10) is an attesting witness to recovery memo (Ex.PB) in respect of recovery of police jeep No. HR- 16A-0935 allotted to PS Siwani. He has proved his signatures on the said memo. Santosh Kumar, Patwari (PW11) prepared a scaled site plan (Ex.PN) with correct marginal notes on the demarcation shown by HC Kailash Chander (PW5). He has proved his signatures. Bhisham Chander (PW12) was posted as Reader to the District Magistrate, Bhiwani. He has proved the sanction orders (Ex.PQ and Ex.PR) for prosecution of accused Manoj and Vinod under the Arms Act. SI Shree Krishan (PW18) has stated that when accused Vinod was present in the Court on police remand in case FIR No. 48 dated 14.7.2005, he had suffered a disclosure statement, which was recorded by Inspector Randhir Singh, CIA Rewari. He has proved the sanction orders (Ex.PQ and Ex.PR) for prosecution of accused Manoj and Vinod under the Arms Act. SI Shree Krishan (PW18) has stated that when accused Vinod was present in the Court on police remand in case FIR No. 48 dated 14.7.2005, he had suffered a disclosure statement, which was recorded by Inspector Randhir Singh, CIA Rewari. This witness has signed the disclosure statement and has proved his signatures. HC Jai Bhagwan (PW19) is a formal witness and he has been produced in respect of case FIR No. 48 of 2005 registered at PS Jatusana wherein accused Vinod when present in the Court had suffered a disclosure statement. Constable Satish Kumar (PW20) is a formal witness, who has given evidence in regard to some sealed parcels connected with case FIR No. 48 of 2005. Statement of witness ASI Satbir Singh (PW21) relates to some disclosure statement made by accused Manoj in regard to some other recovery. Inspector Randhir Singh (PW22) had arrested accused Vinod, who had made disclosure statement (mark A) in case FIR No.48 dated 14.7.2005 under Sections 307, 332, 353 and 186 IPC and Section 25 of the Arms Act relating to some other case. HC Chattar Singh (PW23) is a formal witness who tendered his evidence on affidavit (Ex.PZ). SI Ram Kumar (PW24) had of 2007 18 arrested accused Gulshan on 2.5.2004 and had prepared a supplementary challan in respect of that accused, who had been sent up for trial under Section 216 IPC, which finally ended in acquittal of the accused. EHC Satish Kumar (PW25) also tendered his evidence on affidavit (Ex.PAA). He has denied the defence suggestion that during the custody of case property with him, it was tampered with. Shree Bhagwan (PW26), a resident of Village Berli, District Rewari, has stated that on 14.7.2005 accused Vinod was arrested by the police in his presence. He is a witness of recovery memos of weapons connected with some other FIR relating to PS Jatusana. As regards the submission of learned senior counsel that the police had a motive to falsely implicate the accused persons for they were implicated in a number of cases after this incident, we would like to mention that the police had laid a nakabandi on receipt of a VT message, which was duly recorded and exhibited before the Court. As regards the submission of learned senior counsel that the police had a motive to falsely implicate the accused persons for they were implicated in a number of cases after this incident, we would like to mention that the police had laid a nakabandi on receipt of a VT message, which was duly recorded and exhibited before the Court. In the VT message, names of the accused were not mentioned, and their names and identity came to the notice of the police only when accused Manoj was apprehended on the spot and put to interrogation. Thus, it cannot be said that the police has falsely involved the accused persons in this case. This is not a case of mistaken identity of the accused, inasmuch as, one of the accused was apprehended on the spot, the two other had participated in exchange of firing with the police. As regards the argument as to how the deceased was carried from the spot of incident to the hospital in the absence of production of the driver and owner of the private jeep in the witness box as mentioned in the statement of SI/SHO Bhagwan Dass (PW4), this may not cause any prejudice to the prosecution case as the fact that the deceased suffered gunshot injury and died as result thereof and further that one of the witnesses Constable Sushil Kumar (PW3) also suffered some injuries in the scuffle established that the incident did take place. Regarding delay in lodging the FIR and sending special report to the Illaqa Magistrate, SI/SHO Bhagwan Dass (PW4) has given reasonable explanation that he was under anxiety to carry the injured police driver to hospital for treatment and in that process, there was a delay in lodging the FIR and sending the special report to Illaqa Magistrate. As regards the jurisdiction of Churu Court in respect of recovery of police SLR, magazine and live cartridges from within that area, the fact of taking away of this weapon with ammunitions was already mentioned in the FIR registered at Police Station Siwani and during the course of investigation and interrogation, on a disclosure statement made by accused Vinod while being produced in Bhiwani Court, recovery of the weapon and ammunitions was effected from Rajasthan. Therefore, there is no infirmity as regards the jurisdiction of the trial Court under the Arms Act. Therefore, there is no infirmity as regards the jurisdiction of the trial Court under the Arms Act. Chasing of accused persons was also justified for the fact that the police had received a VT message and laid a nakabandi in search of 3 miscreants, who had snatched away a motorcycle. Since the accused appellants were noticed to be coming in a motorcycle and they retreated fast and abruptly by turning the motorcycle on seeing the police naka, it created a reasonable suspicion in the minds of the police and, thus, chasing of the accused-appellants by police was well within their rights, even though the identity of the accused persons was not established. The defence produced one Virat Jain (DW1) in the Court in connection with the offence of giving shelter to accused Manoj, Vinod and Anoop @ Kirori. His father was made an accused under Section 216 IPC and was finally acquitted. Thus, from the aforesaid analysis of incriminating materials on record, we find enough acceptable evidence against the accused appellants. Evidence of eye witnesses who are the police officers is amply supported by the recoveries, medical evidence and other materials like FSL report and V.T. Message etc. 21. Now the question would arise as to whether the aforesaid circumstances being established would lead to an inference that the accused persons have committed the offence of murder as has been held by learned trial Court. The fact that accused Manoj was apprehended on the spot having been overpowered by deceased Constable Subhash and from his possession a country made 9 mm pistol with 4 live cartridges was recovered and that from the evidence of Dr.Kirti Raj, Medical Officer (PW3), it is established that accused Manoj had suffered 5 injuries in scuffle with police, his presence and participation in the offence are fully established. Similarly, on a disclosure statement (Ex.PS) made by accused Vinod, one SLR No. 762, a magazine, and 15 live cartridges were recovered and taken into possession vide recovery memo (Ex.PU) after a gap of 1 year 8 months and the sketch of that SLR was prepared as Ex.PT. The police jeep, which accused Vinod and Anoop @ Kirori had driven away, was recovered abandoned from a spot near village Lalhana on approach road to Hitampura by ASI Madan Lal. The police jeep, which accused Vinod and Anoop @ Kirori had driven away, was recovered abandoned from a spot near village Lalhana on approach road to Hitampura by ASI Madan Lal. Though the weapon, which was used by accused Vinod, could not be recovered due to passage of time and one of the accused Anoop @ Kirori is still absconding, but from the eye witnesse accounts, it is established that they had fired at police party in order to rescue accused Manoj from the grip of deceased Police driver Subhash as also in exchange of firings and further at the time of fleeing away in police jeep with arms and ammunition. We have carefully examined the medical evidence and the FSL report to find out as to whether bullet recovered from the dead body of the deceased could be fired from the service pistol of the SHO with description 9 mm, No. 15174717. As the FSL report disclosed that the said bullet was fired from a regular fire arm of .380 calibre, we are satisfied that the bullet so recovered was not fired from the weapon recovered from accused Manoj and the 9 mm pistol of the SHO. The FSL has amply clarified that the bullet so recovered was of 380 calibre weapon whereas both the fire arms which were examined by the Ballistic division of the laboratory were only of 9 mm calibre. Accused Manoj was in the company of co-accused Vinod and Anoop @ Kirori right from the time when they all were noticed riding a Yamaha motorcycle near the police nakabandi till he was taken in grip by Constable Subhash who was shot dead. He was seen in the company of two other co-accused who succeeded in fleeing away in the police jeep while firing gun shots and they also tried to rescue him by firing gun-shot at the deceased Police Constable and other members of the police party. Further, this accused actively participated in the exchange of firing and also fired a gun shot at Constable Sushil Kumar (PW3), who was approaching him to apprehend while he was in the grip of deceased Constable Subhash. Further, this accused actively participated in the exchange of firing and also fired a gun shot at Constable Sushil Kumar (PW3), who was approaching him to apprehend while he was in the grip of deceased Constable Subhash. As the common intention is to be inferred from the act or conduct or other relevant circumstances of the case and since all the three accused were carrying fire arms and indulged in firing and since two accused managed to flee away and only accused appellant Manoj was apprehended on the spot, we can safely hold that there was a common intention on the part of accused appellant Manoj to commit the offence of murder of Police Constable Subhash. Thus, the offence of murder under Section 302 IPC against accused Vinod and under Section 302 read with Section 34 IPC against accused Manoj is fully established. As regards offence under Section 307 IPC against accused Manoj for firing a gun shot at Police Constable Sushil Kumar (PW3), this is established by a consistent evidence of the eye witnesses as discussed herein above. For the same evidence, offence under Section 25 of the Arms Act against accused Manoj is also proved. 22. Moreover, there was a recovery of a 9 mm pistol with 4 live cartridges, and the witnesses to the recovery have supported the prosecution case. ASI Madan Lal (PW1) has also supported the prosecution case in that regard. Co-accused appellant Vinod has also been held guilty of offence under Section 25 of the Arms Act and rightly so, for having been found in conscious possession of one police SLR with a magazine and 15 live cartridges, which was recovered pursuant to his disclosure statement made after a gap of 1 year and 8 months from a village in District Churu vide recovery memo (Ex.PU), which has been proved by Recovery Officer SI Nihal Singh (PW17) and the attesting witness ASI Jagdish Chander (PW16). 23. As regards the charge under Section 397 against accused Vinod, it has come in the evidence of eye witnesses that he along with absconding accused Anoop @ Kirori had driven away the standing police jeep with one police SLR, a magazine and 15 live cartridges, and while taking away the jeep with arms and ammunition, both of them had fired at the police party. The subsequent recovery of police jeep vide recovery memo (Ex.PB) and the arms and ammunition from Churu vide recovery memo (Ex.PU) also fully substantiated the prosecution case. As at the time of taking away police jeep with arms and ammunitions, the accused had attempted to cause death or grievous hurt by using fire arm therefore the charge under Section 397 IPC is found proved against accused Vinod and thus he has been convicted and sentenced thereunder by learned trial Court. A charge under Section 353 IPC separately against accused Manoj and accused Vinod that they caused assaults on the police party, which was trying to apprehend them during the course of performance of their duties, is also found established in view of the discussions about the eye witnesses accounts and other prosecution evidence. Thus, the impugned judgment of recording conviction of both the accused appellants on different counts as noticed above is hereby affirmed. Moreover, the entire events of the incident occurred in quick succession and continuation which make it a case of single transaction. Firing of gun shot by accused Manoj, while he was in the grip of deceased Constable Subhash, at Constable Sushil Kumar (PW3) also facilitated the co- accused to run away in the police jeep while firing at the police party from the spot. Had he succeeded in shooting Constable Sushil Kumar (PW3) down, perhaps he would also have managed to free himself from the grip of deceased Constable Subhash who had received a bullet injury by that time, by putting the police party in a state of fear. The prosecution case is, thus, amply established by the ocular evidence of eye witnesses who are the police officials and who had no axe to grind against the accused persons, and the ocular evidence is corroborated by the circumstantial evidence in the nature of medical and postmortem reports, recovery memos and the FSL report. Thus, the impugned judgment recording conviction of both the accused appellants namely Manoj and Vinod is, hereby, affirmed. As regards the sentence, Shri R.S. Cheema, learned senior counsel, submitted that this is not a case, which falls in the category of rarest of the rare cases, warranting the extreme penalty of death sentence. The incident took place without a pre-planning and further there was no motive to commit the offence. Moreover, this case involves only one death. As regards the sentence, Shri R.S. Cheema, learned senior counsel, submitted that this is not a case, which falls in the category of rarest of the rare cases, warranting the extreme penalty of death sentence. The incident took place without a pre-planning and further there was no motive to commit the offence. Moreover, this case involves only one death. That apart, learned Additional Sessions Judge carried a bias in his mind, inasmuch as, he has made an earlier Sessions Trial No. 30 of 23.2.2005 in respect of an occurrence dated 12.12.2004 under Sections 395 and 397 IPC, wherein he had awarded life sentence to the accused, basis for awarding death sentence in this case in respect of an occurrence which was prior to the said occurrence creating bias. Rather in order to maintain the high tradition of judicial proprietary, the learned Additional Sessions Judge should have transferred the case to some other Court. Further, the postmortem report indicated only one injury and this is also not clear as to which of the three accused had fired that gun shot. Thus, in view of the antecedents of the accused showing some pending criminal cases and the judgment recording conviction by the same Judge in one of the cases as referred to herein above, the accused persons should not have been branded as a die-hard criminals. On the other hand, learned Additional Advocate General, Haryana, submitted that accused Vinod absconded after the commission of offence with co-accused Anoop @ Kirari, who has not yet been arrested; a Police Constable being the driver of Government jeep was shot dead, and vide an earlier judgment in another sessions trial under Sections 395 and 397 IPC, though in respect of a latter occurrence, both the accused were convicted and sentenced to life imprisonment. Thus, according to him, this case falls in the category of rarest of rare cases. Learned Additional Advocate General also submitted that in a judgment of Honble the Apex Court reported in 2005(2) RCR (Crl.) 708 (Saibana v. State of Karnataka) when the accused killed his daughter and second wife suspecting her fidelity while on parole in a case where life imprisonment had been awarded, the Honble Court upheld the death sentence holding that there could be no imprisonment of second life term on the accused. In the second judgment reported in 2002(2) RCR (Crl.) 567 (Krishna Mochi and others v. State of Bihar etc.), a three Judge Bench of Honble the Apex Court in a case of massacre of 35 persons of a particular community under Section 302 IPC read with Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, affirmed the death sentence holding that the crime was not only ghastly but also enormous in proportion. In this judgment, the Honble Court has summed up the guidelines laid down in the cases of Bachan Singh v. State of Punjab (AIR 1980 SC 898) and Ram Deo Chauhan v. State of Assam (AIR SCW 2784). 24. On a careful consideration of the attending circumstances and the guidelines laid down by Honble the Apex Court from time to time in various judgments, we are of the opinion that this case does not fall in the category of rarest of the rare cases. Honble the Apex Court in the case of Machhi Singh and others v. State of Punjab (AIR 1983 SC 957), has laid the guidelines for awarding death sentence as under : "32. The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence in no case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by `killing a member of the community which protects the murderer himself form being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance : I Manner of commission of murder When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance. (i) When the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) When the victim is subjected to inhuman acts of torture of cruelty in order to bring about his or her death. (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II Motive for commission of murder When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward; (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust; (c) a murder is committed in the course for betrayal of the motherland. III Anti-social or socially abhorrent nature of the crime. (a) When murder of a member of a scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of `bride burning and what are known as `dowrydeaths or when murder is committed in order to remarry for the sake of extracting dowry once again or is marry another woman on account of infatuation. IV Magnitude of crime When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V Personality of victim of murder When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder, (b) a helpless woman or a person rendered helpless by old age on infirmity, (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust, (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons. 33. In this background the guide-lines indicated in Bachan Singhs case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singhs case : (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the `offender also require to be taken into consideration along with the circumstances of the `crime; (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances; (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." 25. The facts and circumstances of the instant case do not bring it in the category of rarest of rare cases. The accused appellants were not required to be arrested in any case. Even in two other cases said to have been registered earlier, it appears that their names were involved therein after their arrest in this case. The police has, thus, been carrying prejudice against the accused and that is why they have been shown to be involved in a series of criminal cases. In one of such cases, which occurred later but was decided prior to the impugned judgment, the same learned Additional Sessions Judge awarded life imprisonment. Learned Additional Sessions Judge in order to keep the best tradition of judicial proprietary should have Court, but instead, he made his earlier judgment recording conviction and sentence against the accused a ground for awarding death sentence giving the impression that the accused appellants were incorrigible and, therefore, the extreme penalty of death sentence was justified. As noticed in foregoing paragraphs, the accused appellants were chased on the basis of suspicion and in the process, one of the accused appellant Manoj was apprehended and taken in grip by deceased Constable Subhash. Though, it is found established from the prosecution evidence that all the three accused had fired from their weapons at the police party and one of the gun-shots fired by the two accused other than accused appellant Manoj in order to rescue him caused a fatal injury to deceased Subhash, but no empty was recovered. Thus, looking to the manner of commission of murder and the number of gun-shot injury being one, we can not say that it was committed in an extremely brutal manner. Thus, looking to the manner of commission of murder and the number of gun-shot injury being one, we can not say that it was committed in an extremely brutal manner. Except the attempt to rescue their companion from the grip of the deceased, there could be no other motive attributable to accused for commission of offence. Moreover, this is not a crime against a member of the Scheduled Caste or minority group and the magnitude of the crime is also not enormous in proportion as the deceased has been found to have succumbed to solitary bullet injury. The personality of the deceased and the circumstances of the case are not such that for his killing, only the retributive punishment of death sentence would be justified. 26. In view of the aforesaid, Murder Reference No. 5 of 2007 of the State is declined and is thus rejected, and the death sentence awarded against accused appellants Vinod and Manoj is, hereby, set aside and instead they are each sentenced to imprisonment for life with a fine of Rs. 10,000/-; in default of payment of fine, to further undergo RI for two years. As regards the conviction and sentences recorded by learned trial Court on other counts, the same are to remain intact. 27. Thus, with the aforesaid modification in sentence, Crl. Appeal Nos. 524-DB of 2007 and 470-DB of 2007 are, hereby, dismissed.