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2009 DIGILAW 1605 (PNJ)

Sabbir son of Nasru v. State of Haryana

2009-09-09

JITENDRA CHAUHAN, MEHTAB S.GILL

body2009
JUDGMENT Jitendra Chauhan, J. - This judgment shall dispose of Criminal Appeal No. 167 DB of 2000 and Criminal Appeal No. 163-DB of 2000. Criminal Appeal No. 167-DB of 2000 has arisen out of an impugned judgment and order dated 10.1.2000/ 21.1.2000 rendered by the learned Sessions Judge, Gurgaon, whereby the appellant was convicted and sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code. The appellant was also convicted and sentenced to undergo rigorous imprisonment for a period of one year under Section 25 of the Arms Act vide separate judgment and dated 10.1.2000/21.1.2000. This judgment and order has been challenged in Criminal Appeal No. 163-DB of 2000. However, the facts are being taken from Criminal Appeal No. 167 DB of 2000. 2. Briefly stated, the facts of the case are that Harun, the deceased, was employed with Balkar Singh. On 8.5.1998, the Mining Officer intercepted the vehicle driven by accused/appellant Sabbir, carrying illegally mined stones. In the meantime, Harun reached there in his vehicle. On the asking of Mining Officer, Harun towed the vehicle left by accused Sabbir and took it to Police Station, Tauru. This act of Harun earned displeasure and enmity of the accused. This incident was stated to be the motive for committing the murder of Harun. 3. In the night intervening 19/20.5.1998, Harun, the deceased, was sleeping outside in his house along with his brother Din Mohd. The other family members were sleeping in the courtyard. He was shot at 2.00 a.m. in the night by accused/appellant Sabbir. This incident was witnessed by Din Mohd., PW10, the brother of the deceased and complainant in the present case and Jangi, PW 11. 4. After the occurrence, the injured was removed to Primary Health Centre, Tauru by Din Mohd, PW10, where he was declared dead by Dr. P.K. Sharma, Medical Officer, PW1. Ruqa was sent to Police Station, Tauru by Dr. P.K. Sharma. The statement of Din Mohd. was recorded by SI Kaptan Singh, PW13, on the basis of which, formal FIR was registered. The special report was received by JMIC Ist Class at 9.30 a.m. on 20.5.1998. 5. The dead body was brought to the hospital on a cot. The bamboo piece, part of the cot, having pallets marks, blood stained pieces of wad were taken into possession. 6. The special report was received by JMIC Ist Class at 9.30 a.m. on 20.5.1998. 5. The dead body was brought to the hospital on a cot. The bamboo piece, part of the cot, having pallets marks, blood stained pieces of wad were taken into possession. 6. Thereafter, SI Kaptan Singh, the investigating officer, PW13, visited the spot of occurrence. Rough site plan was prepared. Blood stained earth and lead, slug part of the bullet, were also lifted from the spot. All the sealed articles were sent to Forensic Science Laboratory. Karnal for chemical examination. 7. The inquest report Exhibit PH was prepared by SI Kaptan Singh. 8. Dr. Krishan Kant, Medical Officer, CHC, Nuh, PW8, conducted the post mortem examination on the dead body of Harun and found the following injuries on his person : i) A lacerated wound 2 x 2cms on right side of front of chest in lower third part 9cms apart from right nipple and 12cms. from umbilicus. Wounds margin were abraded and inverted, bright red sort tissue present at the floor of wound. Surrounding tissue of wound dark black discoloured. Size 8 x 9 cms with burning blackening and singeing of the hairs and skin. On further dissection underlying tissue was found lacerated and congested with underline seventh rib fracture. A part of skin and tissue over and round the injury No. l collected and preserved for FSL examination; (ii) A lacerated wound on size 3 x 3cms placed one cm. below the right inferior angle of scapula with everted margins. Liquid red blood was coming out of the wound and was soiling the surrounding area of the skin. On further dissection surrounding and underlying soft tissue found achymosed and badly lacerated with surrounding ribs healthy. Plura on right side; Plura and lung parenchyma was found lacerated size 3 x 2cms. along the lower margin of lower lob with haemothoras. Right lung; Lower lob of right lung lacerated size 2 x 3cms. Peritoniam; Heamothorax. In liver: right lob of liver found badly lacerated into pieces size 8 x 7 cms. with massive haemoperitonium. 9. The prosecution in order to establish its case examined Dr. along the lower margin of lower lob with haemothoras. Right lung; Lower lob of right lung lacerated size 2 x 3cms. Peritoniam; Heamothorax. In liver: right lob of liver found badly lacerated into pieces size 8 x 7 cms. with massive haemoperitonium. 9. The prosecution in order to establish its case examined Dr. P.K. Sharma as PW1; I.K. Khurana as PW2; ASI Daya Ram as PW3; C. Mukh Ram as PW4; C. Hari Om as PW5; H.C. Suresh Kumar as PW6; Chhote Khan as PW7; Dr.Krishan Kant as PW8; C.Sarwan Kumar as PW9; Din Mohammad as PW 10; Jangi as PW 11; ASI Basant Pal as PW12 and SI Kaptan Singh as PW13. 10. Dr. P.K. Sharma, Medical Officer, P.H.C. Tauru, PW 1, stated that he examined Harun at 2.45 a.m. in the night intervening 19/20.5.1998. He was declared brought dead. The dead body was brought by Din Mohd. son of Rasula, resident of village Pachgaon. He admitted having sent ruqa Exhibit PA, to the Police Station. 11. Sh. I.K. Khurana, Assistant Mining Engineer, Department of Mines and Geology, Gurgaon, PW2, made a statement that report Exhibit PB addressed to SHO Tauru Din Mohd. bears his signatures and the contents of the same were correct. 12. Sh. Din Mohd., PW 10, supported the prosecution version. He is eyewitness to the occurrence. He categorically stated that he along with Harun, the deceased, was sleeping in front of their house. The other members of the family were sleeping in the courtyard. Jangi, PW11, was also sleeping in front of his baithak, which was 30-35 feet away from the place of occurrence. In the night intervening 19/20.5.1998 at about 2.00 a.m., he heard the noise of gun shot. He was sleeping at a distance of 3 paces away from the cot of Harun and saw the accused/appellant Sabbir was standing there and carrying a 12 bore country made pistol (Katta). Sabbir ran away from the spot. He took the injured Harun to Civil Hospital, Tauru, immediately. 13. Jangi, PW11, fully corroborated the statement of Din Mohd., PW 10. He stated that he was sleeping at a little distance from the cot of Harun. After hearing the gun shot noise, he saw that accused Sabbir was running away from the spot. 14. SI Kaptan Singh, PW13, stated that he carried out the investigation. 13. Jangi, PW11, fully corroborated the statement of Din Mohd., PW 10. He stated that he was sleeping at a little distance from the cot of Harun. After hearing the gun shot noise, he saw that accused Sabbir was running away from the spot. 14. SI Kaptan Singh, PW13, stated that he carried out the investigation. He lifted the blood stained earth, wooden piece of cot having pallet marks, lead and wad (gudri) from the hospital as well as place of the occurrence and the same were taken into possession. 15. ASI Basant Pal, PW12, arrested accused Sabbir on 27.5.1998. The accused made disclosure statement before him. In pursuance thereof, one 12 bore country made pistol (Katta) and two live cartridges of 12 bore were recovered. The said articles were sent to Forensic Science Laboratory, Madhuban, Karnal for chemical examination. 16. After conclusion of the prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure. The accused pleaded not guilty and claimed trial. The accused in his defence examined Sat Narain Sharma, LDC, RTO Office, Alwar (Rajasthan) as DW1. 17. Sat Narain Sharma, DW1, produced the summoned record pertaining to the Registration of Vehicle No. RJ-02-G-2393. As per entry at Sr. No. 4 dated 23.8.1997, the said vehicle stands in the name of Bhey Ram son of Jas Ram r/o District Alwar. In the cross-examination, he stated that earlier registration number of this Vehicle was HR-A-3695, registered with Registration Authority, Ambala. 18. It was argued before the trial Court that the statements of Din Mohd., PW10, and Jangi, PW11, could not be relied upon because they were closely related to the deceased and, therefore, were interested witnesses. There was no mention of any electric light or moon light at the time of incident and in the absence thereof, it was difficult for these witnesses to identify the accused. It was further argued that Din Mohd. and Jangi had improved their statements. The version given by Din Mohd. and Jangi was highly improbable on the ground that no normal thinking person would go to the place where Harun was sleeping and fire upon him as there was high possibility of his being easily noticed by the relatives of the deceased. and Jangi had improved their statements. The version given by Din Mohd. and Jangi was highly improbable on the ground that no normal thinking person would go to the place where Harun was sleeping and fire upon him as there was high possibility of his being easily noticed by the relatives of the deceased. It was also argued that the prosecution has not been able to collect any evidence of conspiracy on the part of Sahun and Mubin to fasten the criminal liability on them. 19. However, the learned trial Court observed that there was no eye witness in the present case and the case rests on circumstantial evidence. Therefore, on the basis of evidence, the learned Trial Court acquitted accused Sahun and Mubin and convicted the present appellant Sabbir. 20. The instant appeal was admitted on 6.9.2000. 21. Learned counsel for the appellant has argued that motive in the present case is not proved. There was no dispute between the accused and the deceased. Though, Mining Officer had impounded the vehicle of Sabbir but that does not connect the accused with the crime in any manner. It has been further submitted that neither the deceased nor Din Mohd., PW 10, moved any complainant before any authority expressing apprehension at the hands of the accused. The accused has been shown running from the spot by Din Mohd. PW 10 and Jangi, PW 11. The occurrence took place at 2.00 a.m. in the night. In the absence of any evidence that there was electric light or moon light, it is difficult to accept that the complainant was able to see and identify the accused. Moreover, Jangi, PW11, stated that Din Mohd.,PW10 told him that accused Sabbir had fired the shot. 22. It has been further argued that as per the FSL report, Exhibit PS there is no mention of the fact that cartridge recovered from the spot was fired from 12 bore country made pistol (Katta) recovered in pursuance of the disclosure statement. 23. On behalf of the State, it has been argued that case of the prosecution stands established on the basis of statements made by Din Mohd, PW10 and Jangi, PW11. From the statement of SI Kaptan Singh, PW13, it is proved that the place of occurrence is not disputed in the present case. The wad (gudri) along with lead was taken into possession from the spot. From the statement of SI Kaptan Singh, PW13, it is proved that the place of occurrence is not disputed in the present case. The wad (gudri) along with lead was taken into possession from the spot. As per FSL report, lead piece was slug part of the 12 bore cartridge. The weapon of offence i.e. Katta was found to be functional. As per the post-mortem report, the contact wound establishes the credibility of the prosecution version that, the shot was fired from a close distance. There is no reason to shield the real culprit and falsely implicate the accused with complaint. From the site plan Exhibit PK, it is established that the house of Jangi, PW11, was located at a short distance. This is also proved on record that Din Mohd. and Harun were living in a joint family. Jangi, PW 11, is their neighbourer. In the circumstances, the presence of complainant Din Mohd., PW 10 and Jangi, PW 11 is natural. 24. We have heard the learned counsel for the parties and perused the record. 25. It is admitted that Harun, the deceased, was driver of the vehicle owned by one Balkar Singh. On 8.5.1998, Mining Officer, PW2, had impounded the vehicle driven by the appellant, while he was on run after committing theft of illegally mined stones. The accused ran away from the spot. Meanwhile, Harun deceased came there in his vehicle. At the asking of Mining Officer, Harun towed the vehicle left by the appellant and took it to Police Station, Tauru. This version was supported by Sh. I.K. Khurana, PW2. This act of Harun earned him enmity of the appellant. Prior to the occurrence, the deceased was warned on 10.5.1998 by the appellant, when he was present at the crusher. of Balkar Singh in the area of Tauru. 26. The deceased along with his brother Din Mohd., PW 10, was sleeping outside his house. Jangi, PW11 who lives in the neighbourhood was also sleeping outside his house. Din Mohd. heard the noise of gun fire shot at around 2.00 a.m. in the night intervening 19/20.5.1998 and he immediately woke up and saw that accused Sabbir was carrying a 12 bore Katta in his hand. The accused ran away from the spot. After the occurrence, the injured was shifted to the Primary Health Centre, Tauru, by Din Mohd., where he was declared dead. The accused ran away from the spot. After the occurrence, the injured was shifted to the Primary Health Centre, Tauru, by Din Mohd., where he was declared dead. This is amply proved from the hospital record and the statement of Dr. P.K. Sharma, PW1, who declared Harun dead and sent ruqa to the police station. 27. As per the post mortem report, contact wound on the body and blackening of the wound corroborate the version rendered by Din Mohd, PW 10, that the shot was fired from a close range. During the investigation, SI Kaptan Singh, PW13, lifted the blood stained earth and lead. As per FSL report, lead was found to be the slug part of 12 bore cartridge. 28. The presence of Din Mohd., PW10, being brother of the deceased is natural. Learned counsel for the appellant has failed to point out any circumstance which gives any indication of false implication of the accused. Moreover, there is no reason with Din Mohd., PW 10, to shield the real culprit. There is no dispute as regards the place of occurrence. Both the parties come from the same village, therefore, the identity of the accused stands proved. 29. As regards the argument raised that there is no report confirming that the cartridge recovered from the spot did not match the weapon of offence. Certainly as per the result of FSL report, Exhibit PS, there is no finding or remarks in this regard. However, this argument does not help the appellant. The weapon of offence is a country made pistol (Katta). Such a weapon, as per Forensic Science in Criminal Investigation and Trials (Fourth Edition) by Shri B.R. Sharma, would fall in the category of defective firearms. 30. In case of defective firearm, it is not possible to reach on any precise conclusion whether the shot was fired by a particular weapon, if the weapon falls in the category of defective firearms. 31. There is no dispute that firearm evidence helps to: decide whether the given incidence is a case of murder, accident, killing in self defence or suicide; determine the sequence of events; verify versions; establish the number of directions, directions, ranges and the number of firearms; distinguish between real and fake incidence and ascertain whether the injury is fatal or non-vital. 3lA. Dr. 3lA. Dr. B.R. Sharma, while dealing with the topic of Firearms under Chapter 9 Item No. 9.6.1 on page No. 430 and Item No. 9.6.3.3. on page No. 432 has recorded as under :- "9.61 xx xx xx xx xx xx xx xx xx xx xx Some criminals use previously fired bullets in cartridges of higher caliber. For example, 32 fired bullet is placed in a 12 bore cartridge and fired. This misleads the investigating officer. He searches for a rifled firearm rather than a shotgun. It complicates the investigations. 9.6.3.3 Defective firearms In defective firearms, it is not always possible to fire a fully loaded cartridge for test purposes. Some of the charge is, therefore, removed. If the questioned exhibit is a cartridge case, the projectile charge of the round is removed. If a bullet is the questioned exhibit, the powder charge is reduced to about one-half to one-third." 32. In the instant case, the argument raised by learned counsel for the appellant as regards the weapon of offence not matching with cartridge recovered from the spot is not valid for the reason that the weapon used in the crime is covered by the definition of category of defective firearms. 33. We disagree with the observation of the learned trial Court that the cases of the prosecution rests on circumstantial evidence. The case is fully proved on the basis of the eye witnesses account Din Mohd., PW10 and Jangi, PW11. 34. There is no delay in lodging the FIR. The occurrence took place in the night intervening 19/20.5.1998 at 2.00 a.m. The injured Harun reached the hospital, which is at a distance of 3-4 kms. from the place of occurrence; at 2.45 a.m. Din Mohd., the eye witness of the occurrence, took the injured to hospital which is established from the medical report and the statement of Dr. P.K. Sharma, PW1. 35. There is direct, cogent and reliable version rendered by Din Mohd., PW10, which is corroborated by the statement of Jangi, PW11. There is total consistency in ocular version and medical evidence. 36. In view of the fact that there are two eye witnesses of the occurrence, the question of motive pales into insignificance. 37. The Honble Supreme Court of India, while dealing with the question of direct evidence, in Bikau Pandey and others v. State of Bihar, (2003)12 SCC 616 has held as under :- "13. 36. In view of the fact that there are two eye witnesses of the occurrence, the question of motive pales into insignificance. 37. The Honble Supreme Court of India, while dealing with the question of direct evidence, in Bikau Pandey and others v. State of Bihar, (2003)12 SCC 616 has held as under :- "13. Therefore, Section 149 has been rightly applied when the factual position as highlighted by the eyewitnesses is considered. Even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. The first information report was lodged almost immediately and whatever elaboration has been done is really very minor in nature. Mere seemingly inconsistencies which are not contradictions or omissions or are of trivial nature do not affect substratum of the prosecution version. That is the situation in the case at hand. The number of injuries even if not co-related to the number of assailants is not material. 18. We are not inclined to re-examine the whole of the prosecution case for finding out as to whether occurrence had taken place in the manner alleged by the prosecution. We find no reason to disbelieve any of the eyewitnesses. The trial Court as well as the High Court have after critical examination of their statements, rightly concluded that they were the truthful witnesses and that all the appellants in these appeals were present at the time of occurrence. Merely because the witnesses happened to be the relations of the deceased is not a ground to reject their testimony. Under the circumstances of the case, the aforesaid witnesses appear to be natural witnesses who were supposed to be at the place of occurrence. Time and again, it has been held by this Court that no interference would be made with the concurrent findings of fact based on pure appreciation of evidence, even if this Court was to take a different view on the evidence. The Court will normally not enter into reappraisal or the review of evidence unless the trial Court or the High Court is shown to have committed an error of law or procedure and the conclusions arrived at are perverse. This Court cannot enter into the credibility of the evidence with a view to substitute its opinion for that of the trial Court or the High Court. This Court cannot enter into the credibility of the evidence with a view to substitute its opinion for that of the trial Court or the High Court. This Court may interfere where on proved facts, wrong inferences of law are shown to have been drawn. It needs to be emphasized that this Court is not a regular court of appeal to which every judgment of the High Court in criminal case may be brought up for scrutinising its correctness. It is only in rare or exceptional case where there is some manifest illegality or grave or serious irregularity resulting in miscarriage of justice that the Court would interfere with such findings of fact. In this regard, reference may be made to the judgments of this Court reported in Duli Chand v. Delhi Administration, 1975(4) SCC 469, Ramnik Lal Gokaldas and Ors. v. The State of Gujarat, 1976(1) SCC 6, Mst. Dalbir Kaur and Ors. v. State of Punjab, 1976(4) SCC 158, Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, 2000(1) SCC 358 and Chandra Bihari Gautam and Ors. v. State of Bihar, JT 2002(4) SC 62. This does not appear to be a case where interference is called for. Looked at from any angle, the appeals are without merit and deserve dismissal which we direct." 38. For the reasons mentioned above, both the appeals are dismissed. The judgments and orders of the learned trial Court dated 10.1.2000/21.1.2000 passed under Section 302 Indian Penal Code and under Section 25 of the Arms Act are hereby maintained. It has not been informed whether the appellant is on bail or in custody. If the appellant is on bail, his bail bonds shall stand cancelled and he shall be taken into custody forthwith to serve remaining part of his sentence. Appeal dismissed.