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2012 DIGILAW 1116 (PNJ)

Nar Singh v. State of Haryana

2012-08-30

JASBIR SINGH, RAKESH KUMAR JAIN

body2012
JUDGMENT Mr. Rakesh Kumar Jain, J.: - The appellant has been convicted on 09.11.2006 for the offences punishable under Section 302 of the Indian Penal Code, 1860 [for short “IPC”] and Section 25(1-B) of the Arms Act, 1953 [for short “the Act”], and sentenced to undergo rigorous imprisonment for life with fine of Rs.20,000/- under Section 302 IPC with a default clause that in case of non-payment of fine, the appellant shall further undergo rigorous imprisonment for one year and 3 years rigorous imprisonment with fine of Rs.10,000/- under Section 25 (1-B) of the Arms Act with default clause of payment of fine, to undergo further rigorous imprisonment for six months. Both the aforesaid sentences were ordered to run concurrently. 2. Complaint (Ex.P7) was lodged by Daya Nand (PW7) on 07.03.2005 on the basis of which formal FIR (Ex.PX) was registered, according to which the complainant PW7 and Rajbir (deceased) were brothers residing separately. Their parents used to live with the deceased who was employed as a Driver on vehicle TATA-407 of his real uncle Sukhbir Singh. On 06.03.2005, at about 7.30 PM, Rajbir was sleeping on his cot in front of the house of Jai Singh S/o Pale Ram in gali sare aam. PW7 also went to sleep at about 9.00 PM, but at about 11.00 PM, he heard noise of vomiting by the deceased. He alone came out in the street and saw the deceased crying. He called upon his father Chander Bhan from the house of the deceased and he and his father found injury on the forehead of the deceased which was bleeding. He went away to call the doctor from the village but Dr. Partap Singh did not come. On his return, he found that his brother had already expired. He alleged that the deceased has been murdered by some unknown person with some unknown weapon who died because of the injury suffered by him. He alleged that he had no enmity in the village with anyone and had no suspicion against anyone till today. 3. After registration of the FIR, inquest proceedings were carried out vide Ex.P9. Site plan of the place of occurrence (Ex.P10) was prepared. The dead body was sent to the dead house of PGI, Rohtak and vide application (Ex.P11), request was made for post mortem, conducted by Dr. J.K.Bhalla (PW10) who proved his Post Mortem Report (Ex.13). 3. After registration of the FIR, inquest proceedings were carried out vide Ex.P9. Site plan of the place of occurrence (Ex.P10) was prepared. The dead body was sent to the dead house of PGI, Rohtak and vide application (Ex.P11), request was made for post mortem, conducted by Dr. J.K.Bhalla (PW10) who proved his Post Mortem Report (Ex.13). Injury suffered by the deceased was “lacerated wound on left side of forehead 3cm x 1cm, 1cm above the medial side of superior margin of left orbit. Bleeding was present. On further dissection, fracture of the frontal bone leading to fracture of parietal bones of both side of scalp was found. Whole brain was lacerated upto occipital area. Sub dural and extra dural hematoma was present. A bullet was recovered from occipital area of the brain”. After the post mortem, he handed over the bullet recovered from the brain of the deceased in a sealed packet (Ex.P16), pent (Ex.P17), shirt (Ex.P18), banian (Ex.P19) of the deceased to the police, recovered vide memo Ex.P6. Blood stained earth was also lifted from the place of occurrence vide memo Ex.P8. 4. After arrest of the appellant on 13.03.2005, his disclosure statement (Ex.PW13/A) was recorded and weapon used in the crime was recovered vide memo (Ex.PW13/C). The site plan (Ex.PW14/A) of the place of recovery of weapon of offence was prepared. The bullet and the country made pistol, sketch of which was drawn vide (Ex.PW13/B), were deposited by ASI Dalel Singh (PW9) in the Malkhana of Police Station, Sampla through MMHC ASI Ram Parkash (PW5) on 07.03.2005 and 14.03.2005, which were further delivered by HC Ajit Singh (PW4) to the FSL, Madhuban. The FSL prepared its report on 29.06.2005 (Ex.P12). After collecting all the evidence, charge sheet was presented. 5. In order to substantiate its case, the prosecution examined Ram Bhagat, Reader to the District Magistrate, Rohtak as PW1 who proved order (Ex.P1) granting sanction to prosecute the appellant under Section 25 of the Act. 6. Const. Sumit Kumar (PW2) proved the scaled site plan (Ex.P2) of the place of occurrence. 7. Const. Siri Bhagwan (PW3) tendered his affidavit (Ex.P3) in respect of handing over of three envelopes by ASI Samunder Singh containing special report of the case for further delivery to the higher officers. 8. 6. Const. Sumit Kumar (PW2) proved the scaled site plan (Ex.P2) of the place of occurrence. 7. Const. Siri Bhagwan (PW3) tendered his affidavit (Ex.P3) in respect of handing over of three envelopes by ASI Samunder Singh containing special report of the case for further delivery to the higher officers. 8. HC Ajit Singh (PW4) stated that on 22.03.2005, while posted as Constable in Police Station, Sampla, HC Ram Parkash, Moharirr (PW5) handed over to him four parcels containing a match box having a bullet sealed with the seal of doctor, clothes along with post mortem report sealed with the seal of doctor along with sample seal, blood stained earth sealed with the seal of doctor along with the sample seal and a pistol of .315 bore sealed with the seal of J.S. along with sample seal. He further stated that he deposited the said parcels in the office of the Forensic Science Laboratory, Madhuban and all the sealed parcels remained intact through out with him. 9. Ram Parkash (PW5), Incharge, Malkhana, Police Station, Sampla stated that on 07.03.2005, ASI Dalel Singh (PW9) deposited with him three sealed parcels containing a bullet in a match box, clothes of the deceased and blood stained earth. On 14.03.2005, SI Satpal deposited with him a pistol of .315 bore sealed with seal S.S. along with a sample seal and on 22.03.2005, he handed over all the articles to Const. Ajit Singh (PW4) to deliver it to the FSL, Madhuban. According to him, all the sealed parcels remained intact throughout with him and he tendered his affidavit (Ex.P5). 10. Const. Ram Parkash (PW6) stated that on 07.03.2005, post mortem of the deceased was got conducted by him at PGIMS, Rohtak. After the post mortem, a sealed parcel containing a bullet along with the sample seal and another sealed parcel containing the clothes of the deceased along with the sample seal were handed over by the Medical Officer to ASI Dalel Singh (PW9) who took them into his possession vide recovery memo Ex.P6. 11. Daya Nand (PW7), brother of the deceased, repeated the statement made by him in the FIR. 12. Hoshiyari Devi, mother of the deceased, appeared as PW8, whereas ASI Dalel Singh appeared as PW9. Dr. J.K.Bhalla, who conducted the post mortem, appeared as PW10 and proved the post mortem report (EX.P13). 13. 11. Daya Nand (PW7), brother of the deceased, repeated the statement made by him in the FIR. 12. Hoshiyari Devi, mother of the deceased, appeared as PW8, whereas ASI Dalel Singh appeared as PW9. Dr. J.K.Bhalla, who conducted the post mortem, appeared as PW10 and proved the post mortem report (EX.P13). 13. Ranbir Singh S/o Zile Singh appeared as PW11 who alleged to have seen the appellant running in the street at the relevant time after he heard the noise of a gun shot. 14. Pardeep Kumar (PW12) took the photographs (Ex.P21 to Ex.P23) on 07.03.2005, whereas Jit Ram (PW13) is the witness of the disclosure statement and recovery. Inspector Satpal Singh (PW14) is the witness of recovery. 15. After the evidence of the prosecution, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] in which all the incriminating evidence was put to him, but he denied his involvement and desired to lead the evidence in his defence. He examined Shri Bhagwan as DW1. 16. Learned counsel for the appellant has submitted that the fact that the bullet recovered from the brain of the deceased during post mortem on 07.03.2005 and was handed over by the doctor duly sealed was not sent immediately to the Forensic Science Laboratory, Madhuban which was sent on 22.03.2005 after the recovery of the country made pistol, for examination to the FSL creates a serious doubt in the story of the prosecution for which benefit should be given to the appellant. In this regard, he has relied upon a decision of the Supreme Court in the case Surender @ Babli v. State (NCT) of Delhi, [2012(5) Law Herald (SC) 4063] : 2012 Crl. Law Journal 2177. 17. As against this, learned counsel for the State has argued that no tempering has been found with the parcels sent to the FSL as it has been mentioned in the report (Ex.P12) that seals on the parcels were found intact with the specimen seals as per forwarding authority. He has also drawn attention of this Court to the affidavits (Ex.P4 & Ex.P5) and statements of the PW4 and PW5 according to which the seals on the parcels containing the bullet and the pistol were found intact and not tempered with. 18. We have heard counsel for the parties in this regard. 19. He has also drawn attention of this Court to the affidavits (Ex.P4 & Ex.P5) and statements of the PW4 and PW5 according to which the seals on the parcels containing the bullet and the pistol were found intact and not tempered with. 18. We have heard counsel for the parties in this regard. 19. It has come in the evidence of PW10 that he put the bullet, recovered from the brain of the deceased during post mortem, in a sealed packet (Ex.P16) which, according to PW6, was taken into possession by PW9 vide recovery memo Ex.P6. PW4 has tendered his affidavit (Ex.P4) in which he has averred as under:- “1. That on 22.03.2005, I was posted in P.S.Sampla on my general duty. 2. That on 22.03.2005, MMHC Ram Parkash, P.S.Sampla handed over to me one Parcel pilot match box duly sealed of doctor and one parcel of clothes, PMR No.2415 dt. 7.3.05 sealed of doctor alongwith Sample seal and one parcel of box which is lying blood stained earth. Sealed with the seal of D.S. along with Sample seal and one parcel of pistol .315 bore. Seal with the sealed of J.S. along with sample seal and form C.F.S.L. through R.C.No.25 dt. 20.3.05 deposited in F.S.L. Madhuban intact condition. 3. That all the parcels duly sealed. I deposited in FSL Madhuban on the same day and its receipt was handed over to Ram Parkash MMHC on my return. 4. That so long as the above said parcels of the case remained in my possession. Neither I nor any body was allowed to tempered with the same.” 20. Similarly, PW5 has tendered his affidavit (Ex.P5) in which he made the following averments:- “(1) That on 7.3.05 I was posted in P.S.Sampla as MMHC and till today. The key of Malkhana remained in my possession. (2) That on 7.3.05 A.S.I. Dalel Singh ASI I/C P.P. Kharawar deposited one parcel of bullet duly sealed by doctor. One parcel of clothes of deceased Rajbir s/o Chander Bhan Jat r/o Chulana and PMR No.2405 dt. 7.3.05 duly sealed by doctor alongwith sample seal and one parcel of box which is containing cotton stains with blood. Sealed with the seal of D.S. along with sample seal of the case deposited in Malkhana. That on 14.3.05 SI/SHO Sampla Satpal deposited to me. One parcel of .315 bore pistol. 7.3.05 duly sealed by doctor alongwith sample seal and one parcel of box which is containing cotton stains with blood. Sealed with the seal of D.S. along with sample seal of the case deposited in Malkhana. That on 14.3.05 SI/SHO Sampla Satpal deposited to me. One parcel of .315 bore pistol. Sealed with the seal of J.S. along with sample seal in Malkhana. (3) That on 22.3.05 the above said parcel duly sealed along with sample seal and FSL Form. I took out from the Malkhana and handed over to C. Ajit Singh No.1043 vide R.C.No.25 dt. 22.3.05 for deposit in FSL Madhuban intact condition. (4) That the above said case property of the case remained in my possession. Neither I nor any body was allowed to tempered with it.” 21. As per the report of the FSL (Ex.P12), seals have been found intact and were tallied with the specimen seals. The result of the report of the FSL says that “the country made fired bullet marked BC/1 (chambered for .315” & .303" calibre firearms) has been fired from country made pistol W/1 and not from any other firearm even of the same make and bore/calibre, because every firearm has got its own individual characteristic marks”. Meaning thereby the bullet recovered from the brain of the deceased has duly matched with the pistol recovered on discloser statement made by the appellant. 22. Insofar as the question of the sending of the bullet to the FSL along with recovered weapon is concerned, in Surender @ Babli’s case (supra), the occurrence took place on 08.02.2001 and the post mortem was conducted on the same day and the spent bullet was recovered from the dead body of the deceased. The said bullet was deposited in the police Malkhana soon after its removal from the dead body and the weapon of offence was recovered at the instance of the accused on 28.02.2001. The bullet and the weapon were dispatched to the FSL on 03.04.2001. The said bullet was deposited in the police Malkhana soon after its removal from the dead body and the weapon of offence was recovered at the instance of the accused on 28.02.2001. The bullet and the weapon were dispatched to the FSL on 03.04.2001. However, in the present case, the bullet was recovered on 07.03.2005 and was deposited in the Malkhana and soon, after the arrest and disclosure of weapon of offence by the appellant, on 14.03.2005, the pistol was also deposited in the Malkhana and both were sent immediately on 22.03.2005 to the FSL unlike in Surender @ Babli’s case (supra) where the articles were sent to the FSL after a gap of 2 months. Even otherwise, when PW4 and PW5 appeared in the witness box, not a single question was put to them in cross-examination about tempering of the seals either in the Malkhana by PW5 or in transit while depositing the same by PW4 with the FSL. As a matter of fact, no question was put to both the witnesses at the time of cross-examination. 23. In these circumstances, we have no hesitation to hold that in the absence of any evidence of tempering with the seal which had been tallied with the specimen seals, it cannot be said that the appellant has been falsely implicated. Hence, the aforesaid argument raised by counsel for the appellant is rejected. 24. It is further argued by counsel for the appellant that PW11 got his statement recorded on 08.03.2005 though he attended the cremation of the deceased on 07.03.2005 but did not disclose that he had seen the appellant running from the place of occurrence. 25. Counsel for the State has submitted that PW11 had stated that on 06.03.2005, at about 11.00 PM, he came out from his house for going to his fields and noticed Nar Singh (appellant) running in the street. He heard the noise of a gun shot. He did not see the appellant firing at the deceased, but when he came from the fields in the morning of 07.03.2005, he learnt about the murder of the deceased. Many persons had collected at the spot. He heard the noise of a gun shot. He did not see the appellant firing at the deceased, but when he came from the fields in the morning of 07.03.2005, he learnt about the murder of the deceased. Many persons had collected at the spot. He informed them that he had noticed the appellant running away in the street in the night at about 11.00 p.m. Thereafter, he went for his job on 07.03.2005, returned in the village on 08.03.2005 and at that time, his statement was recorded by the police. 26. We have perused the statement of PW11 and have found that he had categorically stated that in the morning of 07.03.2005, when he learnt about the murder of the deceased and went to the place of occurrence, many people had collected there to whom he had informed that he had seen the appellant running in the street in the night at about 11.00 p.m. but his statement was recorded by the police on 08.03.2005 as he had gone for his job outside the village and returned on 08.03.2005 itself. Hence, this argument of counsel for the appellant is also rejected. 27. It is further argued by counsel for the appellant that disclosure statement in the form of confession before the police is inadmissible. However, counsel for the State has argued that on the disclosure statement of the appellant, the alleged pistol used in the crime has been recovered which has matched with the bullet recovered from the body of the deceased. 28. We have considered all the arguments of learned counsel for the parties and are convinced that there is no error committed by the learned Trial Court in appreciating the evidence on record while convicting and sentencing the appellant for the murder of Rajbir (deceased). The appeal is, thus, dismissed and conviction and sentence of the appellant is hereby upheld.