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The Indian Penal Code, 1860
Section 24 in The Indian Penal Code, 1860
Abdulwahab Abdulmajid Baloch vs State Of Gujarat on 23 March, 2009
The Arms Act, 1959

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Punjab-Haryana High Court
Ramphal vs State Of Haryana on 10 March, 2010

Criminal Appeal No. 400-DB of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Date of Decision: 10-03-2010

(i) Criminal Appeal No. 400-DB of 2007

Ramphal ....Appellant Versus

State of Haryana ....Respondent Present: Shri U.K. Agrnihotri, Advocate, for the appellant. Shri S.S. Patter, Senior DAG, Haryana.

(i) Criminal Appeal No. 343-DB of 2008

Rajender @ Chela and another ....Appellants Versus

State of Haryana ....Respondent Present: Shri Ashwani Gaur, Advocate, for the appellants. Shri S.S. Patter, Senior DAG, Haryana.

CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA

HON'BLE MR. JUSTICE JASWANT SINGH

Whether Reporters of local papers may be allowed to see the judgment?

1. To be referred to the Reporters or not?

2. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J.

This order shall dispose of Criminal Appeal No. 400-DB of 2007 filed by Ramphal and Criminal Appeal No. 343-DB of 2008 Criminal Appeal No. 400-DB of 2007 [2] filed by Rajender @ Chela and Satyawan against the judgment and order dated 10/12.2.2007 passed by the learned Additional Sessions Judge, Hisar, convicting appellants under Section 302 read with Section 34 IPC and sentencing them to undergo life imprisonment and to pay a fine of Rs.5000/- and in default of payment of fine, to further undergo RI for six months. Appellant- Satyawan Singh has also been convicted under Section 24 of the Arms Act, 1959 and sentenced to undergo RI for a period of two years and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo RI for one month.

The prosecution case was set in motion on the basis of statement of Chandu alias Kidu (Exhibit P.1), father of deceased- Sukhdev Singh, recorded by SI Ajit Singh, SHO, Police Station Sadar, Hansi on 10.4.2003 at about 8.40 a.m. that he has taken field of Bhalle Ram son of Neki Ram, on 1/4th share. His younger son Sukhdev used to guard the field by living there during the night. Ramphal son of Tara Chand and Rajinder alias Chela, are working in the field of Mani Ram, whereas Satyawan son of Rakhlu Dhanak has taken the field of Sita Ram Pandit on share. On 9.4.2003 at about 7 p.m, he has gone to his house and Ramphal, Satyawan, Rajender and his son Sukhdev Singh remained with Ramphal in the house constructed in the field of Mani Ram. At about 11 p.m., he was going to take care of his field and when he reached near the field of Mani Ram, he heard the noise of quarrel. Under the light of his torch, he saw his son Sukhdev Singh removing his clothes. Ramphal and Rajender have caught hold of Sukhdev Singh and Satyawan was holding a pistol in his hand. Criminal Appeal No. 400-DB of 2007 [3] When he tried to abstain them, Satyawan said that he would teach him a lesson for quarreling after taking liquor with them. He fired a shot from his pistol at Sukhdev on his neck on the front side, on which his son Sukhdev fell down. Satyawan etc. extended a threat to him that in case he tells about the incident to anyone, he would also kill him. He hid himself in the field and in the morning saw his son Sukhdev Singh dead. He left Prabhu son of Shish Ram and Ram Dayal son of Shishu, near the dead body of Sukhdev and was going to police station for giving information, when he met the police official Ajit Singh. On the basis of the ruqa, the FIR was recorded at 9.05 a.m. The special report in respect of incident in question was received by the concerned Judicial Magistrate, Hansi at 11 a.m.

The inquest proceedings were conducted vide Exhibit P.24, whereas Exhibit P.22 is the post mortem report on the body of the deceased Sukhdev. The present appellants were arrested on 10.4.2003. On the disclosure statement Exhibit P.18 of the accused Satyawan, the pistol from which he fired upon deceased Sukhdev Singh was recovered from his residential house in village Ghirari. The recovery memo of the 12 bore pistol along with the empty cartridge is Exhibit P.18/1. Exhibit P.16 is the disclosure statement of accused Ram Phal in respect of the clothes of the deceased kept concealed in the field of Mani Ram. Exhibit P.16/1 is the recovery memo of white colour readymade pant and one bushirt having white blue linings, recovered from the verandah of the kotha constructed in the field of Mani Ram and covered with bricks and brick bats. The disclosure statement of Rajender, Exhibit P.17, is Criminal Appeal No. 400-DB of 2007 [4] that the chappal of Sukhdev was said to be under the bridge of culvert of the canal within the area of Ghirai on the road which leads to Hisar. Exhibit P.17/1 is the recovery memo of the recovery of the said chappal from the bank of the canal underneath the dry kikar tree. Complainant, father of the deceased and Prabhu Ram are the attesting witnesses of the three disclosure statements and of the recovery memos, referred to above.

The prosecution has also recovered a multi-coloured blood stained dari. It also lifted the blood stained soil from near the dead body. Vide report Exhibit P.35, dari was reported to contain human blood, whereas the report in respect of the blood stained earth was `material disintegrated'. The report in respect of pallets, stated to have been recovered from the body of deceased Sukhdev, is that the same were found to be fired pallets of size (1). Such type of pallets are normally loaded in shotgun cartridges. It was reported that the fire cartridge has been fired from the pistol recovered and not from any other fire arm even of same make and bore. The fire arm has got its individual characteristic marks. It was also reported that the country-made pistol (chambered for 12 bore cartridges) is a firearm and its firing mechanism was found in working order. On the basis of such documentary evidence, the

prosecution sought to prove the charges against the appellants by examining PW5-Chandu and PW9-Ajit Singh, Investigating Officer, apart from other formal and information witnesses. Learned counsel for the appellants have vehemently argued that the conduct of PW5-Chandu is unnatural. If his son has been fired upon in his presence, it is unbelievable that the Criminal Appeal No. 400-DB of 2007 [5] witness would keep quite and will not take any action from 11 p.m. to 8.40 a.m. in the morning, when he reported the matter to the police. It is further argued that the presence of PW5-Chandu is not recorded in the inquest proceedings, though names of many other co-villagers are mentioned in the said report. Therefore, the presence of the said witness at the place of occurrence is highly doubtful.

It is further argued that Prabhu and Ram Dayal, the independent witnesses, who have identified the dead body and were present at the time of inquest report, have not been examined in the Court. There is gross delay in lodging the FIR. As per the prosecution, the occurrence took place at 11 p.m., but the first information has been lodged around 8.40 a.m. i.e. almost after 9 hours and 40 minutes. Such delay in recording of FIR is fatal to the case of the prosecution. Satyawan is alleged to have fired fatal shot upon deceased-Sukhdev, but other two appellants, Ram Phal and Rajender @ Chela, are not attributed any injury. It is contended that no independent witness has been examined. It is also argued that on the basis of the report of the Forensic Science Laboratory, the appellants cannot be convicted for an offence under Section 302 IPC. Reliance is placed upon Abdulwahab Abdulmajid Baloch v. State of Gujarat, (2009) 11 SCC 625.

We have heard learned counsel for the parties at some length, but do not find any merits in the argument raised by the learned counsel for the appellants that the conduct of PW5-Chandu is in any way unnatural. The cross-examination of PW5-Chandu, would show that the fields of Bhalle Jat, which was being cultivated Criminal Appeal No. 400-DB of 2007 [6] by him and that of Mani Ram on which Rajender alias Chela and Ram Phal were working, are adjacent to each other. Even the field of Sita Ram is adjacent to the field of Mani Ram. The distance of the police station from the place of occurrence is 21 kilometers, which is evident from Exhibit P.24. The incident occurred at on 9.4.2003 at 11 p.m. The place of occurrence is though on Ghirari- Hisar Road, but such road is not a busy road and off and on there is traffic on the said road. The house of the complainant is at a distance of 35 killas from the place of occurrence. He has gone to the field of about 20 acres with a lathi. He deposed that he saw the occurrence from a distance of 8-10 feet and there was distance of 3-4 feets between Sukhdev and Satyawan. He has deposed that he ran away towards the field of Krishan, which is adjacent to the place of occurrence and hid himself in the field, where wheat crop was sown.

As per the evidence on record, the police station is 21 kilometres from the places of occurrence. The firing from the fire arm is enough deterrent for any person to be scared of the assault on his person. The normal human tendency is firstly to save himself from the murderous intended assault and then to take steps for providing medical help to the injured. Keeping in view the distance between the place of occurrence and the police station, we find that the conduct of the witness was natural, who in order to save himself from the murderous assault, chose not to go to the police station during the dead of the night and when the road near the place of occurrence is not a busy road.

Though PW5-Chandu has deposed that he was at a

Criminal Appeal No. 400-DB of 2007 [7] distance of 8-10 feet, but that does not mean that father of the deceased could have prevented the accused from harming his son Sukhdev or to take any other action to protect the life of his son. It was not an unnatural human conduct if the complainant hid himself for the fear of the fire by the fire arm in the hands of Satyawan. The human behaviour in a given circumstance differ from person to person. Some persons are bold and are capable of grappling with the assailants, but almost in the similar circumstances, it is equally true that being scared, a person would hide himself so as to protect his life. Therefore, we do not find that there is any unnatural conduct on the part PW5-Chandu. We do not find that there is any gross delay in lodging of the FIR. The occurrence took place around on 9.4.2003 at 11 p.m. The police station is 21 kilometres from the place of occurrence. Being under trauma and fear and for the reason that the occurrence took place during middle in the night and when there is not much traffic on the road, the delay of around 8 hours in lodging of the FIR, cannot be said to be fatal to the case of the prosecution. Similarly, the argument that the accused have not received any injury, is in the realm of conjectures. It is not the case of the prosecution that either the deceased or the complainant grappled with the assailants or took some steps to protect themselves. In the absence of any such stand, mere fact that the accused have not received any injury is of no consequence. Prabhu and Ram Dayal, the witnesses of the inquest proceedings, are relevant for the purposes of identification of the dead body. Once PW5-Chandu has been examined as an author of the FIR as well as Criminal Appeal No. 400-DB of 2007 [8] that of as an attesting witness to the disclosure and recovery memos, it cannot be said that the prosecution has failed to prove the guilt of the appellants. It is the quality of evidence, which is relevant and not the quantity thereof. Since one witness has been examined in respect of the recovery of blood stained clothes, of fire arm and of chappal, therefore, it cannot be said that the prosecution has failed to prove the charges against the appellants. The eye witness account as deposed by PW5-Chandu is corroborated by the recovery of 12 bore pistol, clothes and chappal of the deceased.

Coming to the argument that the name of PW5-Chandu is not mentioned in the inquest report, it may be mentioned that he has left the place of occurrence for giving report to the police. The police party has reached the place of occurrence in his absence. Therefore, his name could not legitimately be found in the inquest proceedings. The inquest proceedings are conducted in the case of unnatural death. The inquest report is not an evidence of manner of occurrence. Therefore, mere fact that the name of PW5-Chandu is not mentioned in the inquest proceedings, is of no consequence. The judgment in Abdulwahab Abdulmajid Baloch's case (supra), is of no help to the appellants as it has been held therein that the report of the expert by itself cannot be sole basis of conviction under Section 302 IPC, when there is no direct evidence. However, in the present case, there is direct evidence of PW5- Chandu as well as the corroborative evidence of records of firearm, clothes etc. containing human blood as reported by the Forensic Science Laboratory. From the evidence led, the prosecution has Criminal Appeal No. 400-DB of 2007 [9] been able to prove the commission of offence by the appellants. The learned trial Court has examined the entire evidence in minute detail and returned a finding of conviction against the appellants. Even on re-appreciation of evidence, we do not find that the view taken by the learned trial Court is not justified in law. Consequently, we do not find any merit in the present appeals. Hence, both the appeals are dismissed. [ HEMANT GUPTA ]

JUDGE

[ JASWANT SINGH ]

JUDGE

10-03-2010

ds