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Himachal Pradesh High Court · body

2015 DIGILAW 1222 (HP)

Sumit Kumar Sharma v. State of H. P.

2015-09-02

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment, rendered on 30.06.2014 by the learned Sessions Judge, Chamba in Sessions Trial No. 30/2012 (43 of 2013), whereby the appellant has been convicted and sentenced to suffer imprisonment for life for his having committed an offence punishable under Section 302 IPC besides sentence of fine of Rs.1,00,000/- has been imposed upon him and in default of payment of fine he has been ordered to be sentenced to undergo further imprisonment for two years. The appellant has been further convicted to undergo five years rigorous imprisonment for offences punishable under Sections 25 and 27 of the Arms Act and a fine of Rs.10,000/-. In default of payment of fine, the appellant has been ordered to be sentenced to undergo further imprisonment for one year. All the sentences have been ordered to run concurrently. 2. The brief facts of the case are that on 8.5.2012 at about 3.05 p.m. Trilok Thakur, Superintendent of CHC Killar, telephonically informed at Police Station, Pangi that his niece Sapna daughter of Shri Ram Singh, resident of village Mahaliyat had gone to graze her cattle below her village and she had been shot by accused Sumit Kumar around 2.30 p.m with intention to kill her and she had been brought to the hospital in an injured condition. It was further reported that the accused was seen fleeing away after firing by Sangita D/o Chain Singh of the same village. This information was recorded in the DDR of the police station on the basis of which F.I.R was registered against the accused. 3. ASI/SHO Naseeb Singh, alongwith other police officials, reached CHC Killar. He moved an application to the Medical Officer as to whether injured was fit to make a statement or not. However, the Medical Officer disclosed that the victim was not in a condition to make statement and seeing her critical condition, the injured was referred to Kishatwar hospital. ASI Naseeb Singh proceeded to the place of occurrence where a number of people had already assembled including two girls, namely, Sangita and Neetu. The Pradhan of the Panchayat was also present there. The driving licence, two ATM Cards, one broken watch, one broken mobile alongwith SIMs, some pieces of papers, cash memos, photographs, cap, one umbrella, etc. were found lying at the spot, which were taken into possession by the police. The Pradhan of the Panchayat was also present there. The driving licence, two ATM Cards, one broken watch, one broken mobile alongwith SIMs, some pieces of papers, cash memos, photographs, cap, one umbrella, etc. were found lying at the spot, which were taken into possession by the police. The police also got clicked photographs of these articles. Five empty rounds were found scattered near the place of occurrence which were also packed in a parcel in the presence of witnesses. The police also collected blood stained cotton swab from the spot. 4. Thereafter, investigating officer recorded the statements of the witnesses Sangita, Neetu, Satish Sharma and Chetan. The police had already deputed two teams to look for the accused in the area. The team headed by ASI Surjeet Singh was detailed to proceed Dharwas side whereas ASI Naseeb Singh alongwith other police officials proceeded towards Bheem Peir side which place leads towards Manali side and reached there at about 9.30 p.m. The police party headed by ASI Naseeb Singh had concealed itself behind a stone boulder. At about 2.00 a.m. in the night, accused reached at Bheem Peir and he was nabbed by the police and he was disarmed of his country made pistol which he was carrying in his hand. On his checking two live rounds were found in the pocket of his trouser which were taken into possession by the police. On inquiry, the accused disclosed his name and address. The accused was arrested and his jamatalashi was also carried out. He was brought to the police station. Injured Sapna died while being taken to Kishatwar hospital. Her post mortem was got conducted at CHC Killar on 9.5.2012. During custody, accused made a disclosure statement and in pursuance thereto he identified the spot. 5. During investigation, witnesses Sangita and Neetu informed the police that on the date of occurrence, injured was grazing her cattle at a distance of about 50 meters from them and at about 2.25 or 2.30 p.m. both of them heard sound of firing from the place where Sapna was sitting and they rushed towards her. When both these girls reached at the spot, accused was found firing at the deceased with a pistol in his hands. On this, both these girls raised noise for help and accused fled away from the spot towards river Chanderbhaga. When both these girls reached at the spot, accused was found firing at the deceased with a pistol in his hands. On this, both these girls raised noise for help and accused fled away from the spot towards river Chanderbhaga. Deceased Sapna had sustained gun shot at her nose, cheek, etc. and blood was oozing out from the injuries and Sapna became unconscious. Sangita and Neetu made a phone call to the sister of deceased namely Risha, who was studying at Shimla at that time, who in turn telephonically informed her brother Neeraj Kumar who was studying in College at Killar. Neeraj Kumar alongwith Rakesh and Rohit rushed to the spot and deceased was brought to CHC Killar from where Trilok Thakur, telephonically informed the police about the incident. 6. The investigating officer also procured MLC of deceased Sapna and the medical officer opined that the injuries sustained by her were possible with firearm/pistol recovered from the accused. On post mortem examination, the medical officer had noticed one bullet embedded in the middle left lung which was extracted. Another bullet was found just below the skin near upper margins of left breast which was found entered from the back side i.e. scapula about 6 cms lateral to the first vertebra of the deceased. The Medical Officer also noticed fracture of the thoracic first vertebrae and penetrating wound over left third intercoestal space with other multiple injuries as mentioned in the post mortem report. In the opinion of the Medical Officer, the deceased had died due to haemorrhage shock because of the gun shot injuries. The medical officer preserved the articles and clothes of the deceased and handed over to the police for chemical examination. The police also collected the call details of the phone number of the accused and the deceased. Prosecution sanction to prosecute the accused was also obtained from the District Magistrate, Chamba. During investigation, it was found that accused was working in a factory at Baddi, where one Naresh Kumar was also working in UNISON Pharma Company who is resident of Tehsil Pangi, from whom accused had procured phone number of the deceased and he started talking with her on her mobile phone. It has also come in the investigation that accused had visited Chamba in the month of March, 2011 as deceased was studying at Chamba. It has also come in the investigation that accused had visited Chamba in the month of March, 2011 as deceased was studying at Chamba. Accused again met Sapna in the month of April, 2011 at Chamba and he has given her some money and phone etc. Accused was also found to have visited Killar Pangi via Sach in October, 2011 on 25.12.2011 and again on 30.1.2012 via J & K. In December, 2011 and January, 2012, accused was found to have stayed in the house of one Vijay Kumar in village Mahaliyat as his friend. Earlier, accused had also visited the quarter of Risha, sister of deceased, at Shimla. Accused wanted to marry deceased Sapna and had talked about it with Risha and father of deceased on their mobile phones. 7. On interrogation, the accused disclosed to the police that he had purchased the country made pistol and rounds in the years 2004-2005 at Hydrabad without any licence. During investigation, it was further revealed that when deceased Sapna and her parents refused the proposal of accused for marriage with Sapna, he visited Pangi on 5.5.2012 and met the deceased and when she refused to solemnize marriage with him, accused fired five gun shots at her arm, nose, right cheek and two rounds on the backside of neck, as a result of which Sapna died. 8. On completion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court. 9. The accused was charged for his having committed offences punishable under Sections 302 of the IPC and Sections 25 and 27(3) of the Indian Arms Act by the learned trial Court to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 22 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded, in which he pleaded innocence and claimed false implication. 10. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 11. The appellant/accused is aggrieved by the judgment of conviction, recorded by the learned trial Court. 10. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 11. The appellant/accused is aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel appearing for the appellant/accused has concertedly and vigorously contended that the findings of conviction recorded by the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of conviction be reversed by this Court, in exercise of its appellate jurisdiction and be replaced by findings of acquittal. 12. On the other hand, the learned Assistant Advocate General appearing for the respondent-State, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 13. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 14. The deceased Sapna after hers having been fired at by the accused with country made pistol Ext.P-1 was brought before PW-1 for hers being subjected to medical examination by the former. PW-1 has proved MLC Ext.PW-1/B prepared by him after his having conducted medical examination on the body of the deceased. Therein he has recorded his having observed on the body of Sapna Kumari the hereinafter extracted injuries: 1) Laceration of about 6 cms x 1 cms over the nose extending to the middle of the nose on right side to tip of the nose on left side. Completely separating the nose into two half. Margins were sharp. Fresh bleed was present there which was bright red in colour. 2) Slit like entering wound about 2 cms 1 cms over right side of the face about 5 cms lateral to nose. The margins were inverted. Fresh bleeding from the wound was there. It was penetrating wound. 3) Loss of incisor teeth, upper jaw was fractured and missed. Fresh blood was present. 4) Entering wound about 3 cms in diameters at the level of thoracic vertebrae. The margins were inverted. Fresh bleed was there. Blacking of tissue was there and the directions anterior inferior. Fresh bleeding from the wound was there. It was penetrating wound. 3) Loss of incisor teeth, upper jaw was fractured and missed. Fresh blood was present. 4) Entering wound about 3 cms in diameters at the level of thoracic vertebrae. The margins were inverted. Fresh bleed was there. Blacking of tissue was there and the directions anterior inferior. 5) Entering wound about 3 cms just 6 cms lateral to the above mentioned fourth wound on left side. The margins were inverted. Blacking of tissue was there with fresh bleed. The direction was interio inferior. 6) Entering wound about 1.5 cms x 5 m over lateral aspect of right arm near elbow. It was slit like. The margins were inverted and fresh bleed was there. 7) Exist would about 2 cms x half mm over medical aspect of right arm near elbow. It was slit light and margins were ever ted. Fresh bleed was present. 8) Multiple stellate shape abrasions over the forehead, face, chin and upper chest was there. Furthermore, he has in his examination-in-chief deposed that the injuries observed by him to be occurring on the body of Sapna are possible with user of fire arm Ext.P-1. Furthermore, he has also proved Ext.PW-1/E , the post mortem report prepared by him in sequel to his having conducted post mortem on the body of deceased Sapna. During his examination-in-chief he has deposed, that while his having conducted post mortem on the body of deceased Sapna he had noticed one bullet embedded in the middle left lung, which was extracted by him and handed over to the police for its being further handed over to the F.S.L. concerned. He further deposes that another bullet was found embedded below the skin near the upper margins of left breast, which had gained entry therein from the back side, inasmuch as from the scapula 6 cms lateral to the first vertebra. In addition he deposes that he had observed existence of a fracture of the thoracic first vertebrae besides detected a penetrating wound over the left third interoestal space. Furthermore, the pleura was found lacerated in two places. The upper and middle lobe of the left lung was also found lacerated and fracture of the maxillary bone was found existing on the right side and there was loss of incisor upper teeth. Furthermore, the pleura was found lacerated in two places. The upper and middle lobe of the left lung was also found lacerated and fracture of the maxillary bone was found existing on the right side and there was loss of incisor upper teeth. He has unequivocally deposed that the demise of the deceased is attributable to hemorrhage shock arising from the gun shot injury. In his examination-in-chief he has proved his opinion qua the cause of demise of deceased Sapna recorded in PMR Ext.PW-1/E. The enunciation by PW-1 of the cause of demise of deceased Sapna being sequelled by hemorrhage shock arising from gun shot injury is lent fortification by portrayals, in the reports of the FSL concerned comprised in Ext.PA and Ext.PB, of the mechanism of the country made pistol as sent to it for examination being in order, besides of firearm discharge residues having been detected in the barrel of the “Desi Katta” and of bullets sent to it for examination for formation of an opinion qua firing thereof from Ext.P-1 unraveling the factum of theirs having come to be fired from the “Desi Katta”. The unequivocal pronunciation in Ext.PW1/E of the deceased having died owing to hemorrhage shock arising from gun shot injury having been lent impetus by the reports of the FSL concerned constituted in Ext.PA and Ext.PB arising from a communication occurring therein of Ext.P-1 a country made pistol having been used to fire bullets Ext.P-2 and P-3 extracted by PW-1 from the body of deceased Sapna when he came to subject it to post mortem examination on extraction whereof he enclosed them in a container and handed them to the police, concomitantly also boosts a conclusion of user of as manifested by ocular evidence of Ext.P-1 by the accused to fire shots therefrom at the deceased sequelling the latters demise. Furthermore, when PW-7 has proven recovery of Ext.P-1 under memo Ext.PW-7/A besides of live cartridges Ext.P-41 and Ext.P-42, which recovery of the aforesaid under memo Ext.PW-7/A has been deposed by him to have been effected at 2 a.m. on the intervening night of 8/9.5.2012 at the place of Nakka on arrival whereto of the accused he pounced upon him and found him carrying a country made pistol in his right hand and two live cartridges in the pocket of his trousers, as a corollary it imputes efficacy to the recovery of Ext.P1, P-41 and P-42 from the person of the accused, especially when the deposition of PW-7 underscoring the factum therein of his having recovered Ext.P-1, besides Ext.P-41 and P-42 from the person of the accused has remained untorn and unshred during the course of his having come to be subjected to cross examination. The effect of the portrayals aforesaid emanating from the deposition of PW-1 besides from reports of FSL concerned comprised in Ext.PA and PB as also the imminent fact upsurging from the deposition of PW-7 of recovery of Ext.P-1, P-41 and P-42 having come to be effectuated in a legally efficacious manner underscores an unflinching conclusion that the accused had used Ext.P-1 to fire therefrom pellets Ext.P-2 and P-3 at the deceased which sequelled the latter’s demise. 15. Apart therefrom, the identification of the place of occurrence by the accused under memo Ext.PW-7/F in the presence of witnesses Satish Sharma and Sukhdev Raj preceding which a disclosure statement of the accused comprised in Ext.PW-7/G was recorded lends immense succor to a conclusion, of the accused having at the place depicted in Ext.PW-7/F fired Ext.P-2 and P-3 at deceased Sapna from Ext.P-1 which begot her demise. Probative efficacy qua the site of occurrence as stood identified by the accused in Ext.PW-7/F is garnered besides lent sustenance by existence thereon both of blood stained soil and of five empty cartridges Ext.P-15 to Ext.P-19. Probative efficacy qua the site of occurrence as stood identified by the accused in Ext.PW-7/F is garnered besides lent sustenance by existence thereon both of blood stained soil and of five empty cartridges Ext.P-15 to Ext.P-19. With Ext.PW-5/E manifesting the factum of soil smeared with blood as occurring at the site of occurrence having been lifted therefrom besides recovery of Ext.P-15 to P-19 having been effectuated therefrom under Ext.PW-5/A constitutes evidence displaying the fact of the ill-fated occurrence having taken place at the site identified by the accused under memo Ext.PW-7/F. Though the aforesaid discussion indubitably underscores the guilt of the accused nonetheless vigorous sustenance to the incriminatory role attributed to the accused by the prosecution stands afforded by the testimonies of eye witnesses to the occurrence, who deposed as PW-3 and PW-4. Both in their respective examinations in chief have deposed in harmony besides corroborated the pivotal fact existing in their respective examinations in chief of theirs having seen the accused firing at the deceased with a pistol carried by him in his hand. Both were subjected to cross-examination by the learned defence counsel yet during the ordeal of an exacting cross-examination which they faced both remained unscathed besides did not render therein a version qua the incident in contradiction to the version qua it as spelt out by them in their respective examinations in chief. Consequently, with both the eye witnesses to the occurrence having lent intra se corroboration to their respective ocular accounts qua the occurrence besides theirs having not displayed any inter se contradictions in the version qua the incident comprised in their respective examinations in chief with the version qua it rendered in their respective cross-examinations, renders their testimonies to be untainted besides unblemished. Consequently their ocular version qua the incident is to be imputed credence, theirs having as emanable from the discussion aforesaid rendered a natural and unconcocted version qua it, as a corollary, the naturalness of their testimonies qua the ill fated occurrence undermines, besides wanes the effect, if any, of theirs while being related to the deceased theirs having hence out of interestedness proceeded to smother the truth or lent a partisan version qua the incident. 16. 16. In view of the aforesaid analysis and discussion, the appeal, preferred by the accused/appellant, is dismissed and the judgment of conviction and sentence rendered by the learned Sessions Judge, Chamba, H.P., in Sessions Trial No.30 of 2012 is affirmed and maintained. Records be sent down back forthwith.