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2014 DIGILAW 1758 (PNJ)

Vinod v. State of Haryana

2014-12-17

JITENDRA CHAUHAN

body2014
Jitendra Chauhan, J. 1. Appellant, namely, Vinod @ Raje, has filed this appeal against the judgment dated 05.03.2013, passed by the learned Additional Sessions Judge, Jhajjar, vide which the appellant was convicted under Section 304 (Part-I), 307 of Indian Penal Code and Section 25 of Arms Act and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 1,00,000/- and in default of payment of fine to further undergo simple imprisonment for a period of six months under Section 304 (Part-I) IPC, sentenced to further undergo rigorous imprisonment for a period of seven years and fine of ` 1,00,000/- and in default of payment of fine to further undergo simple imprisonment for a period of six months under Section 307 IPC and to further sentenced to undergo rigorous imprisonment for a period of three years and fine of ` 5,000/- and in default of payment of fine to further undergo simple imprisonment for a period of two months under Section 25 of the Arms Act. The brief facts of the case in hand, as noticed by the learned trial Court are that, on 20.08.2009 at about 04.30 p.m., the complainant, namely, Govind (PW-3), aged about 26 years, Salesman in Vodafone Company, Jhajjar, was collecting payments of Vodafone coupons from shopkeepers at Rewari Road, Silani Gate, Jhajjar. After collecting the amount from M/s. Yadav Communication when he reached near Babloo Wali Piaoo on his motorcycle, all of sudden two young boys came on a motorcycle and got stopped his motorcycle. Karambir kept sitting on the motorcycle, whereas, accused-Vinod asked the complainant on gun-point, to hand over the bag containing ` 40,000/- in cash and a few coupons of Vodafone. Complainant tried to resist them. Accused Vinod then fired a gun shot in the air and second on the floor, pellets of which struck on the left knee of the complainant. Third gun-shot struck against right wrist of the complainant whereas forth gun-shot struck against the belt of the bag as a result of which it broke down. Accused Vinod snatched the bag and both the assailants then ran away on their bike, but the bike slipped after covering a distance of about two acres. Accused Vinod then gave a gun-blow to his own companion Karambir and ran away from the spot carrying the snatched bag. Accused Vinod snatched the bag and both the assailants then ran away on their bike, but the bike slipped after covering a distance of about two acres. Accused Vinod then gave a gun-blow to his own companion Karambir and ran away from the spot carrying the snatched bag. Public gathered at the spot and shifted the complainant Govind as well as assailant Karambir to General Hospital, Jhajjar, from where they were referred to PGIMS, Rohtak. Karambir succumbed to his injuries. 2. After completion of investigation, the challan against the accused-appellant was presented before the Chief Judicial Magistrate, Jhajjar. Since, the offence was triable by the Court of Sessions, therefore, the case was committed by learned Chief Judicial Magistrate, Jhajjar, to the Court of learned Sessions Judge for trial vide order dated 04.03.2010. The charge was framed against the accused-appellant vide order dated 28.04.2010, to which he pleaded not guilty and claimed trial. 3. In order to prove its case, the prosecution examined the following witnesses:-- "PW1, Dharmender is the cousin of deceased Karambir and had identified the dead body at the time of postmortem examination. He deposed accordingly, but failed to support his previous statement (Ex. P-1) made to the police, wherein he had disclosed the fact that he had seen all the three accused with Karambir on the date of occurrence and that Karambir was having friendly relations with accused Satpal of his village and with accused Vinod of Gurgaon who used to visit Karambir and Satpal in the past. PW-2, Jai Karan, is another cousin of Karambir. This witness also turned hostile and made an identical deposition that of PW-1. PW-3, Govind, is the complainant and injured eyewitness. He proved his statement to the police (Ex. PW-3/A) on the basis of which FIR in the present case was registered. He also identified accused-Vinod as the assailant who caused two gun-shot injuries to him and subsequently murdered his own companion Karambir. PW-3, however, has taken a twisted stand in cross-examination by asserting that accused present in Court was not amongst the assailants. PW-4, Parveen Kumar is the distributor of Vodafone and the employer of the complainant, Govind and has duly proved the said relationship. PW-5, Sukhbir Singh, had brought the medical record regarding complainant Govind from PGIMS, Rohtak, and tendered the same in evidence. As such, he was simply a witness of record and was, therefore, examined without oath. PW-4, Parveen Kumar is the distributor of Vodafone and the employer of the complainant, Govind and has duly proved the said relationship. PW-5, Sukhbir Singh, had brought the medical record regarding complainant Govind from PGIMS, Rohtak, and tendered the same in evidence. As such, he was simply a witness of record and was, therefore, examined without oath. PW-6, HC Jai Chand, Draftsman, working in the office of Superintendent of Police, Jhajjar. He prepared scaled site plan (Ex. PW-6/A) of the spot. PW-7, ASI Surender is the official photographer who had taken four photographs of the place of occurrence which he tendered in evidence as Ex. PW-7/A to Ex. PW-7/D alongwith their negative Ex. PW-7/E to Ex. PW-7/H. PW-8, Dr. Neera Ahuja, Medical Officer, PGIMS, Rohtak. He had conducted the postmortem examination on the dead body of Karambir and tendered his affidavit (Ex. PW-8/A) regarding his observations given in the MLR. PW-9, ASI Aas Mohammad had joined the investigation on 21.08.2009, with the Investigating Officer and entire spot investigation was carried out in his presence, which he duly proved in the Court. PW-10, SI Krishan Kumar, had recorded FIR (Ex. PW-10/B) of the case on receiving the police rukka (Ex. PW-10/A). He put his endorsement (Ex. PW-10/C) over the rukka and sent the same back to the Investigating Officer. PW-11, SI Braham Parkash, had arrested accused Satpal on 25.08.2009, when accused-Satpal was found carrying country-made pistol and two cartridges without licence. A separate case under Section 25 of the Arms Act was registered against the accused-Satpal vide FIR No. 452 dated 25.08.2009 and he recorded the disclosure statement (Ex. PW-11/A) of the accused in the said case wherein accused also disclosed his involvement in the present case. PW-12, Satbir Singh is Clerk in the office of District Magistrate, Jhajjar. He proved sanction order (Ex. PW-12/A) passed by the then, District Magistrate, who signatures, he identified before the Court. PW-13, ASI Dalbir Singh, joined the investigation on 20.08.2009 and after postmortem parcels were handed over to him by the doctor, which he handed over to the Investigating Officer through recovery memo Ex. PW-13/A. PW-14, HC Ram Kishan, was with the Investigating Officer when accused Vinod suffered disclosure statement on 18.10.2009 and in furtherance thereof demarcated the place of occurrence upon which Investigating Officer prepared demarcation over the same as an attesting witness. He also carried sealed parcels to FSL on 31.08.2009. PW-13/A. PW-14, HC Ram Kishan, was with the Investigating Officer when accused Vinod suffered disclosure statement on 18.10.2009 and in furtherance thereof demarcated the place of occurrence upon which Investigating Officer prepared demarcation over the same as an attesting witness. He also carried sealed parcels to FSL on 31.08.2009. PW-15, Dr. Hemant Jain, treating doctor of complainant Govind proved MLR (Ex. PW-15/A) and medical rukka (Ex. PW-15/B). PW-16, HC Ramesh Chander, carried sealed parcel to FSL, Madhuban on 16.11.2009 and tendered in evidence his affidavit (Ex. P-16) regarding safe and sound custody of the parcels. He was inadvertently again examined as PW-19 of the same fact. PW-17, ASI Kuldeep Singh was the MHC on duty on 20.08.2009 and case property remained in his safe and sound custody at police malkhana. PW-18, EHC Narender, carried special report/FIR to Illaqa Magistrate and other senior police officers. PW-19, HC Ramesh Chander was inadvertently again summoned and recorded whereas his deposition was already recorded as PW-16. PW-20, SI Krishan (Retd.) was the Investigating Officer of the case from 03.10.2009 to 26.10.2009 and he proved the investigation carried out by him. PW-21, SI Dharmender was the first Investigating Officer and carried out the investigation from 20.08.2009 to 26.08.2009 and proved the same. PW-22, SI Rajinder Singh (Retd.) remained as Investigating Officer at CIA Staff, Sukhrali, Gurgaon. He arrested the accused-Vinod on 19.09.2009 and recorded the disclosure statement (Mark-C) wherein accused Vinod admitted his involvement in the present case as well as few other crimes." 4. After the conclusion of evidence of prosecution, the statement of appellant-accused was recorded under Section 313 Cr.P.C. and the entire incriminating evidence which the prosecution produced against him was put to him to tender explanation for the same. The appellant-accused pleaded his innocence and he also stated that he has been falsely implicated in the present case. The appellant-accused alongwith his co-accused shown the desire to lead evidence in defence, however no oral evidence was led by them. The entire documentary evidence of the defence is as follows: "1. Ex. DA : Affidavit of PW-3, Govind attested on 08.08.2011. 2. Ex. D1 : Statement under Section 161 Cr.P.C. of PW-4 Parveen Kumar. 3. Ex. D2 : Certified copy of judgment dated 04.10.2010 passed in case FIR No. 428 dated 19.09.2009 of Police Station Civil Lines, Gurgaon." 5. The entire documentary evidence of the defence is as follows: "1. Ex. DA : Affidavit of PW-3, Govind attested on 08.08.2011. 2. Ex. D1 : Statement under Section 161 Cr.P.C. of PW-4 Parveen Kumar. 3. Ex. D2 : Certified copy of judgment dated 04.10.2010 passed in case FIR No. 428 dated 19.09.2009 of Police Station Civil Lines, Gurgaon." 5. The learned trial Court, after hearing learned counsel for the parties and after appreciating the evidence on record, convicted and sentenced the appellant-accused as under:-- Under Section 304 (Part-I) of IPC Rigorous imprisonment for a period for seven years and fine or Rs. 1,00,000/- and in default of payment of fine to further undergo simple imprisonment for a perid of six months. Under Section 307 of IPC Rigorous imprisonment for a period for seven years and fine or Rs. 1,00,000/- and in default of payment of fine to further undergo simple imprisonment for a perid of six months. Under Section 25 of Arms Acr Rigorous imprisonment for a period for three years and fine or Rs.5,000/- and in default of payment of fine to further undergo simple imprisonment for a perid of two months. 6. Feeling dissatisfied with the judgment of conviction and order of sentence dated 05.03.2013, the accused/appellant has preferred the present appeal, which was admitted on 24.05.2013. 7. It is contended on behalf of appellant that the sole injured witness of the occurrence PW-3, namely, Govind has not supported the case of the prosecution. He failed to identify the appellant and has specifically stated that he had not actually seen the faces of the assailants, who allegedly snatched his bag and committed robbery could not identify the person, fired at him or the deceased-Karambir. PW-1-Dharmender and PW-2-Jai Karan, got recorded their statements that the appellant and the deceased- Karambir were seen together in the morning but did not support the case of the prosecution and both these PWs were declared hostile. He further submits that there is not even a circumstantial evidence against the appellant. No test identification parade was carried out, in the circumstances, the identification of the appellant-accused in the Court is of no consequence. It is further contended that there is unexplained delay of 5 days in lodging the FIR. He further submits that there is not even a circumstantial evidence against the appellant. No test identification parade was carried out, in the circumstances, the identification of the appellant-accused in the Court is of no consequence. It is further contended that there is unexplained delay of 5 days in lodging the FIR. The recovery of the weapon was effected from the appellant in FIR No. 452 dated 25.08.2009, registered under Section 25 of the Arms Act, wherein, the appellant stands acquitted, therefore, the recovery from the appellant is of no consequence. Lastly, it is submitted that in the eventuality of this Court not accepting the aforesaid arguments. Keeping in view that the appellant is the sole bread earned and saddled with responsibility of two young children, a lenient view may be taken in the matter of sentence. 8. On the other hand, the learned State Counsel submits that the appellant was duly identified by PW-3 (Govind) the complainant. The appellant is involved in large number of cases. There is a specific recital by the complainant-PW-3 (Govind) that the appellant snatched the bag carrying currency notes and fired at him causing injuries on his knee and hand. While the appellant was in the process of fleeing from the spot along with deceased Karambir, the motorcycle slipped and fell down and in order to wipe-out any evidence of his involvement, the appellant fired at his companion-Karambir who succumbed to his injuries. 9. I have heard the learned counsel for the parties and have gone through the record with their able assistance. 10. The complainant, PW-3, Govind in his cross-examination has specifically stated that his motorcycle was stopped by two motorcyclists and one of them had fired at him and snatched the bag containing the currency notes and ran away from the spot. The motorcyclist met with an accident as the motorcycle slipped, and the appellant shot at his associate, namely, Karambir who died at the spot. The appellant escaped from the spot. This witness identified the appellant-accused and stated him to be the person who had snatched the bag containing currency notes from him. The motorcyclist met with an accident as the motorcycle slipped, and the appellant shot at his associate, namely, Karambir who died at the spot. The appellant escaped from the spot. This witness identified the appellant-accused and stated him to be the person who had snatched the bag containing currency notes from him. After the appellant was duly identified in the Court by him (the complainant), a Criminal Revision No. 2823 of 2011, was preferred by the appellant and in view of the order passed by this Court on 03.04.2012, PW-3-Govind, was recalled for further cross-examination, wherein he did not support the case of the prosecution. The other witnesses i.e. PW-1-Dharmender and PW-2 Jai Karan, the cousins of the deceased-Karambir also did not support the case of the prosecution. It is not in dispute that the appellant was not known to the complainant prior to the date of lodging of the FIR. In the complaint, complete narration of the event i.e. of the robbery and the death has been vividly narrated. The complainant has in a very unambiguous manner made a statement that the accused was the person who snatched the bag containing currency notes from him. The statement made by PW-3-Govind, on oath in chief is reproduced as under:-- "Stated that on 20.08.2009, I was employed as Salesman in Vodafone Company, Jhajjar. At about 4.30 pm I was going to our counter on Rewari Road to collect the money. On the way my bike was got stopped by two bike riders and one of them fired at me and snatched bag from me and they run away on their bike. Thereafter those persons met with an accident, and one of them expired in that accident and that accident took place about 2 acre away and I had seen that accident with eyes. Those persons fell down from the bike. At this stage witness identify one accused out of three accused and pointed towards accused Vinod and stated that the person standing in the Court snatched cash from me. The bike of those person slipped about 2 acres away and I had seen the entire occurrence. And a tall boy fired at the other person who was involved in snatching cash from me and then the person who fired at me and other tall boy run away from the spot. The person who was wearing helmet fired at me. The bike of those person slipped about 2 acres away and I had seen the entire occurrence. And a tall boy fired at the other person who was involved in snatching cash from me and then the person who fired at me and other tall boy run away from the spot. The person who was wearing helmet fired at me. I received two fires on my person one at my left thigh and other on my right wrist and the string of my bag was broken by firing. I had got recorded my statement Ex. PW3/A which bears my left thumb impression at point A." 11. On the intervention of the Gram Panchayat, a compromise was reached between the complainant and the appellant-accused, and in pursuance thereof, an affidavit Ex. DA, was brought on record. It has also come from the Custody Certificate that the appellant-accused is a convict and is involved in as many as fifteen more FIRs. It is a common knowledge that the prosecution witnesses do not stand and depose against the persons like the appellant, who are involved in large number of criminal cases on various considerations. This aspect of the matter in the present context cannot be ignored. The FIR and the statement made by PW- 3-Govind is fully credible to the extent that the accused-appellant was the person, who snatched the bag containing currency notes from him and caused injuries to him. The examination-in-chief of this witness alone is sufficient for discarding cross-examination of a hostile witness. The examination-in-chief depicts the minute details of the incident of snatching, causing injuries to the complainant and death to his associate-Karambir. The cross-examination of PW-3- Govind, designed to suppress truth deserved to be discarded on the ground that in his statement to the police (Ex. PW-3/A) and in the examination-in-chief, this witness has not whispered a word that the assailants were with muffled faces. On the contrary, Ex. PW-3/A his assertion is that he could identify the assailants, if they are brought before him go to prove that the appellant was not with muffled faces. His assertion in the cross-examination is influenced by the compromise Ex. DA dated 08.08.2011, reached at the instance of the Gram Panchayat, which reads as under:-- "(Indian Non-Judicial Stamp Paper worth ` 10/-)" "I, Govind aged about 25 years S/o Sh. Ishwar Singh, R/o VPO. Silani, Teh. & Distt. His assertion in the cross-examination is influenced by the compromise Ex. DA dated 08.08.2011, reached at the instance of the Gram Panchayat, which reads as under:-- "(Indian Non-Judicial Stamp Paper worth ` 10/-)" "I, Govind aged about 25 years S/o Sh. Ishwar Singh, R/o VPO. Silani, Teh. & Distt. Jhajjar (Haryana) do hereby solemnly affirm and declare as under:-- 1. That a few unknown persons had looted money from the deponent on20.08.2009 and one of the assailants fired on the other in statement of deponent, case bearing FIR No. 442, dated 20.8.2009 under sections 394/302/34 I.P.C. & 25/54/59 Arms Act was registered in Police Station Jhajjar (Haryana). 2. That on 3.3.2011, the deponent was summoned in the Court of law to depose his testimony in this regard. On that day, outside the Court, a few police officers met the deponent and asked the deponent to identify the accused persons in the Court else they would registered a false case against the deponent. The deponent in their pressure and threats, unwillingly pointed towards a persons on the court as on the assailants whose named was found to be Vinod. The deponent is sure and confirmed with the fact the said person (Vinod) was not involved in the loot/robbery or any murder took place on 20.08.2009. 3. That, the deponent does not want one innocent to be punished or harassed because of his helplessness. The deponent wants to withdraw his statement to the fact that the accused Vinod was involved in the occurrence on that day. However, the deponent has given the description of the assailants in his testimony before the court of law. 4. That, the deponent has issued this affidavit under not threat, pressure, influence or coercion. The deponent has made this declaration with his free consent and willingness. Deponent (Sd/-) Verification:-- Verified that all the contents of my above-said affidavit are true and correct and I have signed the affidavit in the presence of the respectable of the Society after carefully going through the contest of the same. (Seal of Notary) Attested Dated: 08.08.2011 Deponent (Sd/-)" Virender Chaudhary, Advocate, Notary for Distt. Jhajjar." 12. The witness was recalled for further cross-examination in view of the order passed by this Court on 03.04.2012, wherein he back-tracked from the statement earlier made by him. (Seal of Notary) Attested Dated: 08.08.2011 Deponent (Sd/-)" Virender Chaudhary, Advocate, Notary for Distt. Jhajjar." 12. The witness was recalled for further cross-examination in view of the order passed by this Court on 03.04.2012, wherein he back-tracked from the statement earlier made by him. Section 154 of the Evidence Act reads as under:-- "The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness." In the circumstances, PW-3, Govind is considered as partially reliable witness. His testimony to the extent that he has supported the case, is sufficient to prove the case of the prosecution. The accused-appellant deserves no leniency as he first snatched the bag of the complainant, thereafter shot dead his own companion to conceal his identity and escape the process of justice delivery system. The appellant is involved in more than ten other similar cases. The evidence of hostile witnesses can be safely relied upon so far as it supports the prosecution version. There is no legal bar to base the conviction of the accused upon such testimony, if it is corroborated by other credible and cogent evidence on material points. Section 154 of the Evidence Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The evidence of a hostile witness cannot be discarded so far as it supports the prosecution case on material particulars. Mere for the reason that the witnesses have turned hostile in their cross-examination, the testimony in examination-in-chief cannot be outrightly discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record. Even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution. 13. In these circumstances, this Court is of the considered view that the judgment and order dated 05.03.2013, passed by the learned Additional Sessions Judge, Jhajjar, does not suffer from any perversity or illegality, which are, hereby maintained. However, such evidence is required to be examined with great caution. 13. In these circumstances, this Court is of the considered view that the judgment and order dated 05.03.2013, passed by the learned Additional Sessions Judge, Jhajjar, does not suffer from any perversity or illegality, which are, hereby maintained. Accordingly, the judgment and order dated 05.03.2013, passed by the learned Additional Sessions Judge, Jhajjar, is maintained and the present appeal is hereby dismissed.