Jai Kishan vs State Of Haryana on 16 December, 2017

CRA-S No.962-SB of 2012 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRA-S No.962-SB of 2012
Date of Decision-16.12.2017

Jai Kishan … Appellant

Versus

State of Haryana … Respondent

CORAM:-HON’BLE MR. JUSTICE RAJ MOHAN SINGH

Present: Mr. Ashwani Bhardwaj, Advocate for the petitioner.
Mr. Siddharth Sanwaria, DAG, Haryana.

***
RAJ MOHAN SINGH, J.

[1]. Appellant has preferred this appeal against the

judgment of conviction dated 24.01.2012 and order of sentence

dated 25.01.2012 passed by Sessions Judge, Panipat vide which

appellant was convicted and sentenced for the offences under

Section 307 IPC and Section 25 of the Arms Act.

[2]. Prosecution story started with the allegations that on

06.12.2009 at about 1:11 AM, a verbal transmission message was

received by Police Post Assandh Road, Panipat from Control

Room that a firearm injury was caused to Laxmi (PW 8). On receipt

of information, Sub Inspector, Nahar Singh (PW 10) along with

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other police officials went to the village Sodapur where the

complainant Tej Pal (PW7) was found present and he stated

before the police that his father and uncle had taken Laxmi for

treatment. Complainant Tej Pal got his statement Ex.PL recorded

to the effect that he was a student of 10+2 class. His father used to

run tea stall in Panipat. His sister Laxmi was married to accused

Jai Kishan about 1 ½ /2 years ago. Jai Kishan used to harass her

sister and he raised demand of dowry. About 8 months ago, Laxmi

gave birth to a daughter namely Tamanna. Due to repeated

beatings and harassment of Laxmi, Panchyat was convened and

both of them decided for separation about two months ago.

Daughter Tamanna was handed over to Jai Kishan. Since then,

Laxmi was living with her parental house.

[3]. Complainant further narrated that marriage of his cousin

Sunder was fixed on the next day. After taking dinner at the house

of his uncle, he along with his family members returned to the

house at about 11:30 PM. His parents slept in the inner room.

Complainant and his sister Laxmi slept in the front room.

Complainant saw some movie on television upto 12 midnight and

then after closing the main gate, he closed the door of the main

gate, but did not bolt from inside. The light was on in the room,

whereas light in the courtyard was off. At about 12:50 AM, he

heard the noise and he along with his parents woke up. He saw his

sister Laxmi was weeping. Initially, he thought that she was

weeping due to some bad dream, but after moving her neck, he

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found a hole in her jersey, out of which blood was oozing out.

Complainant found that someone had fired a shot on her. When

the complainant and his father lifted Laxmi from the cot for taking

her for treatment, one fired bullet fell from her clothes on the cot.

Father of the complainant lifted the fired bullet. Father of the

complainant and uncle Ram Saran took Laxmi to the hospital for

treatment. Complainant further submitted that his mobile phone

which was put on charging was also found missing. Complainant

suspected involvement of Jai Kishan for firing a shot at Laxmi on

account of grudge of getting divorce.

[4]. FIR Ex.PA was registered by ASI Naresh Kumar (PW1).

Investigation was done by Sub Inspector, Nahar Singh and after

investigation, report under Section 173 Cr.P.C was presented to

the Court by Inspector Subhash Chander (PW11). The accused

was arrested on 06.12.2009 and from his personal search, a

country made pistol .315 bore was recovered. A rough sketch of

the pistol Ex.PN/1 was prepared and the same was taken in police

possession vide memo Ex.PN. The blood stained bed sheet was

taken into possession by the police vide memo Ex.PM. The police

after seeking the opinion of the doctor, recorded the statement of

injured Laxmi. Blood stained pieces of quilt, khes, jersey and other

clothes of the injured were taken into possession vide memo

Ex.PQ. Satbir Singh (PW 9) father of the injured handed over blood

stained led cartridge to the police which was also taken into

possession vide memo Ex.PO. The place of occurrence was

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photographed and site plan Ex.PR was prepared. Forensic

Science Laboratory team also inspected the site. The site plan of

the place of recovery Ex.PS was also prepared and all these

documents were made part of the challan under Section 173

Cr.P.C. Charges under Section 307 IPC and Section 25 of the

Arms Act were framed to which the accused pleaded not guilty and

claimed trial.

[5]. The prosecution examined ASI Naresh Kumar as PW 1,

Jagbir Singh Exemptee, Head Constable as PW 2, Sushil Kumar,

Head Constable as PW 3, Dr. Pardeep Kumar as PW 4, Satbir

Singh as PW 5, Dr. Nitin Singhal as PW 6, Tej Pal (complainant)

as PW 7, Laxmi (injured) as PW 8, Satbir son of Sadhu Ram as

PW 9, Nahar Singh, Sub Inspector as PW 10, Subhash Chander,

Inspector as PW 11 and EHC Vijender Kumar as PW 12.

[6]. Thereafter, statement of accused was recorded under

Section 313 Cr.P.C wherein he denied the allegations and pleaded

false implication. In his defence, accused examined Partap as

DW 1, Maha Singh as DW 2, Ishwar Singh Exemptee, Head

Constable as DW 3, Mahabir Singh, Retired Assistant Sub

Inspector as DW 4, Dharampal Singh as DW 5 and Rakesh as

DW 6.

[7]. Trial Court vide judgment of conviction dated

24.01.2012 and order of sentence dated 25.01.2012 convicted the

accused/appellant for the offences under Section 307 IPC and

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Section 25 of the Arms Act and sentenced him to undergo rigorous

imprisonment for a period of 7 years and to pay a fine of Rs.5000/-

under Section 307 IPC along with default clause and to undergo

rigorous imprisonment for a period of 1 year and to pay a fine of

Rs.2000/- under Section 25 of the Arms Act along with default

clause. Both the sentences were ordered to run concurrently.

[8]. ASI Naresh Kumar (PW 1) was posted in Police Station

Model Town, Panipat on 06.12.2009. He received a ruqa written by

SI Nahar Singh in the police station on the basis of which he

recorded formal FIR Ex.PA. He proved the FIR in question. He was

not the Investigating Officer of the case. EHC Jagbir Singh,

Draftsman was examined as PW 2. On 16.12.2009, he was posted

as EHC in the office of Superintendent of Police, Panipat. On that

day, he had gone to the place of occurrence. On the demarcation

of complainant Tej Pal, he prepared the scaled site plan Ex.PB of

the place of occurrence with marginal notes. The site plan was

prepared on the instruction of the complainant. Except preparation

of the site plan, the witness did not elaborate about the facts of the

case. HC Sushil Kumar PW 3 took photographs of the place of

occurrence on the asking of ASI Mahabir Singh. He was a trained

photographer and took the photographs Exs.P1 to P4 with Digital

Camera. He had no personal knowledge about the case.

[9]. Dr. Pardeep Kumar, Medical Officer was examined as

PW 4 who tendered his affidavit Ex.PE in examination-in-chief. The

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witness conducted MLR of Laxmi on 06.12.2009. She was brought

by her father with alleged history of firearm injury. After

examination, she was referred to PGIMS, Rohtak. Lacerated

wound of size 3 x 5 cms over chest lower and anterior side, midline

sternal area was found. She was advised X-ray chest- paview and

surgeon opinion was recommended for injury No.1 which was kept

under observation. The witness was cross examined and it was

stated in the cross examination that the victim was in conscious

state of mind at the time of her medical examination and she did

not disclose the name of the assailant.

[10]. Satbir Singh, Reader to District Magistrate, Panipat was

examined as PW 5 who proved the sanction order Ex.PH issued by

the District Magistrate for prosecution of the accused under the

Arms Act. Dr. Nitin Singhal was examined as PW 6. He was

present in PGIMS, Rohtak on 06.12.2009. He gave the opinion

Ex.PK on the application filed by the police and declared the

patient to be fit for making statement. The witness had no personal

knowledge about the case.

[11]. Complainant Tej Pal was examined as PW 7 who after

narrating the prosecution story stated that Jai Kishan present in the

Court fired a shot at Laxmi and police recorded his statement

Ex.PL in the hospital. The accused was not seen by the witness at

the time of firing. When he woke up, the door was opened and

nobody was present in the room including the accused. His parents

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were in their room and were coming towards his room. No other

person was present in the house on the fateful night. The light was

on at that time in the room and there was no door between two

rooms. The witness pleaded ignorance about the person who had

taken his mobile phone. The witness made a statement to the

police that he had not seen the accused while firing and later on,

while fleeing from there. The police met the complainant again in

the afternoon and he along with the police party proceeded for

village Farmana via Gohana by bus. When they reached at bus

stand, Gohana, the accused met them. At that time, only one

police official was with the complainant. Complainant had

purchased two tickets for going to Gohana. They boarded the bus

from bus stand, Panipat for Gohana. The witness could not tell

whether police of Gohana was present or not at the bus stand,

Gohana. The witness also pleaded ignorance about the availability

of cell phone with him or with the police official who was with him.

The witness further stated that the name of the accused was

mentioned in his statement on suspicion. He denied suggestion

that the accused had not fired at his sister and some other person

had fired at his sister.

[12]. Laxmi (injured) was examined as PW 8. She stated that

marriage of her cousin was fixed for 05.12.2009 and all the family

members returned from the house of her uncle after dinner at

about 11:30 PM. She along with her brother slept in the outer room

and her parents slept in the inner room. They bolted the main gate

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of the house, but inadvertently the door of their room was not

bolted from inside. Her brother watched movie on the television

upto 12 midnight and thereafter they slept. At about 12:30 AM, the

accused/appellant fired upon her which hit on her chest and he

also took away mobile phone of her brother. The light of the room

was on, but the outer light was off. Immediately her parents came

there and they lifted her from the cot and shifted her to the hospital.

The witness was married to the accused on 12.03.2008. A

daughter was born. The witness pleaded ignorance about filing of

any application against the accused for harassment before the

police. No application regarding harassment of the accused was

moved by the injured witness. She stated that she moved an

application after birth of her daughter in the police post, Panipat,

but pleaded ignorance about the date when the same was moved.

No copy of the said application or FIR was kept by the witness.

She also pleaded ignorance with regard to registration of any case

under dowry etc against the accused or his family members. No

divorce petition was filed by the witness and no divorce was

obtained from the Court. When the fire hit upon her, she

immediately woke up. Her brother also woke up at the same

moment. Her parents also came from the adjoining room. The

witness suspected that the mobile phone of her brother was stolen.

She identified the accused at the time of firing, but did not raise

alarm. The witness further admitted in her cross examination that

she was covering herself with quilt and chadder (khesh) as it was a

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winter season. Later on, she told her brother and father that

accused Jai Kishan had fired upon her and she told the name of

the accused to her brother and father before she was shifted to the

hospital. She never told the name of the accused to the doctor.

The witness was conscious when she made the statement to the

police. She pleaded ignorance as to whether police has taken her

clothes in possession or not. The suggestions put to her were

denied in pith and substance.

[13]. Father of the injured namely Satbir was examined as

PW 9. He stated that they were watching television till 12:30 AM.

The light of the room was on, but outer light was off. At about

12:30/12:45 AM, Jai Kishan entered in the house and after entering

the room of his daughter, fired shot upon her daughter Laxmi,

suddenly after opening the door. On seeing the scene, the witness

struck off and he along with his wife immediately rushed towards

their daughter and the accused ran away from the spot. The

accused also took away mobile phone of his son which was lying

near the cot of injured Laxmi. The accused ran away in darkness.

The witness found a fired bullet lying on the cot. The witness also

handed over one quilt, khesh (chadder), sweater, jumper and bra

of the injured to the police. The police also cut pieces from the

clothes where the bullet was passed and the same were taken in

police possession vide memo Ex.PQ. The witness had seen the

accused while opening the door of the room, but had no

opportunity to raise alarm as the accused fired upon his daughter

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immediately after opening the door. The witness along with his wife

was sleeping in the inner room, whereas injured Laxmi and his son

were sleeping in the front room. Prior to this occurrence, the

witness had not seen the accused in the village. There was no

decree of divorce between the accused and his daughter. The

witness had told his son Tej Pal immediately after the occurrence

that the accused had fired upon Laxmi.

[14]. SI Nahar Singh was examined as PW 10 who has

narrated the prosecution story as per record. In his cross

examination, the witness has stated that the clothes were handed

over by Laxmi in the presence of her father Satbir. Lead of fired

bullet was handed over by Satibir in PGIMS, Rothak. He recorded

the statement of Satbir in the hospital. Inspector Subhash Chander

was examined as PW 11 who had prepared the challan. Since the

witness had not conducted the investigation, therefore, he had no

personal knowledge about the case. EHC Vijender Kumar was

examined as PW 12 who tendered his affidavit in the context of link

evidence. The parcels were sent to FSL through EHC Ishwar Singh

who had deposited the same in FSL, Madhuban and had deposited

the receipt with the witness. The witness further stated that the

case property was deposited by the Investigating Officer Nahar

Singh with him on 06.12.2009. The articles were in sealed parcels

and were not visible. The sealed parcels were given to EHC Ishwar

Singh through road certificate. The witness had not accompanied

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EHC Ishwar Singh to FSL, Madhuban who had deposited the case

property with the FSL.

[15]. The accused had denied the incriminating material put

to him in his statement under Section 313 Cr.P.C and preferred to

lead evidence in defence.

[16]. Father of the accused i.e. Partap was examined as

DW 1 who had stated that his son Jai Kishan was apprehended

from the house of Dharampal by saying that the wife of Jai Kishan

was admitted in the hospital due to fire-arm injury and for that

purpose, the inquiry was to be conducted. DW 2 Maha Singh, Duty

Clerk, Haryana Roadways Depot, Panipat brought the time table of

buses of all depots for the route from Panipat to Rohtak of dated

05.12.2009 to 06.12.2009. EHC Ishwar Singh was examined as

DW 3 who had brought Rojnamcha regarding departure and arrival

of SI Nahar Singh, EASI Mahavir Singh and Constable Rajesh

Kumar. The witness was not accompanied by the police party.

Mahabir Singh, Retired ASI was examined as DW 4. Dharampal

Singh resident of village farmana was examined as DW 5. The

witness knew the accused and his family members being a co-

villager. Rakesh was examined as DW 6.

[17]. After hearing learned counsel for the parties, it can be

noticed that in the MLR Ex.PF prepared by Dr. Pardeep Kumar,

Medical Officer (PW 4), the injury was shown to be lacerated

wound of size 3 x 5 cms. over chest lower and anterior side,

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midline sternal area. The same was advised for X-ray chest-

paview, surgeon opinion and nature of injury was kept under

observation, depending on X-ray and surgeon opinion. No surgeon

has been examined, nor any opinion came on record. No X-ray

report has been exhibited. As per nomenclature of the injury in the

MLR, no punctured wound having entry or exit in the body of the

injured was shown. No blackening or cheering of the wound was

depicted. The presence of the accused in the room was on

doubtful note. Complainant who is real brother of the injured did

not hear any sound of fire. He only woke up on the noise of his

sister and saw that his sister was weeping and blood was oozing

out from the hole of her sweater. He admitted in his cross

examination that at the time of firing, the accused was not seen by

him and door was already opened and none was present in the

room including the accused. He had stated before the police that

he did not saw the accused while firing and also when he was

fleeing from the spot. The statement of the complainant in the

context of meeting the accused at bus stand, Gohana, was

something which cannot be connected inasmuch as that when the

police met the complainant again at noon hours, he along with

police party straightaway proceeded for village Farmana via

Gohana by bus and when they reached at bus stand, the accused

met them. The statement of the complainant is silent about the

action taken by the police at that time. If the culpability of the

accused was already known to the complainant, then why the

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accused was not arrested at that particular moment remained

unexplained. The witness further admitted that he mentioned the

name of the accused on suspicion. Injured Laxmi has admitted that

she was sleeping by covering quilt and chadder due to winter

season. She immediately woke up at the time of firing and had

indentified the accused, but did not raise alarm. Later on, she told

her brother and father about the accused who had fired upon her. If

she had disclosed about the accused to her brother just after the

occurrence, then, there was no occasion for the complainant to

name the accused on suspicion. Father of the injured even went on

to introduce eye-witness count while sleeping in the inner room. He

gave a version that the accused entered in the outer room and

fired shot upon his daughter suddenly after opening the door and

the witness immediately rushed to his daughter and the accused

ran away.

[18]. Perusal of the site plan Ex.PB would show that both the

rooms were distinctly marked. Mark A was shown in respect of the

place where the injured was sleeping on the cot, whereas there is

no such mark shown viz-a-viz the second room where the father of

the injured was sleeping who had seen the accused entering in the

outer room. Even in the site plan maukanajri Ex.PS, the place

where father of the injured was sleeping in the inner room was not

shown. Since both the rooms were distinctly placed, therefore, it

was highly doubtful as to how the witness would see the accused

entering in the outer room. In the testimony of Dr. Pardeep Kumar,

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Medical Officer PW 4, no entry and exit wound of bullet was shown

and the injury was only described as lacerated wound of size 3 x 5

cms over chest lower and anterior side, midline sternal area,

therefore, the presence of the blood stained led cartridge of the

shot underneath the injured was doubtful inasmuch as that the

same would not correspond to the injury. The injury was subjected

to X-ray chest and surgeon opinion, but no X-ray report has come

on record, nor any surgeon opinion has come forth to prove the

injury in question by gun shot.

[19]. The statement of PW 9 Satbir is on the improved

version in the context of culpability of the accused, whereas no

such statement of fact was made by the injured as well as her

brother i.e. complainant. The case property was sent to the FSL

through EHC Ishwar Singh. As per testimony of EHC Vijender

Kumar PW 12, the parcels of the case property sent to FSL were

deposited by EHC Ishwar Singh and after depositing the same,

EHC Ishwar Singh had deposited the receipt with him. EHC Ishwar

Singh was not examined to prove the link evidence as to whether

the case property remained intact from the date of its taking into

possession till delivery of the same to the FSL. Since the blood

stained led cartridge was recovered by the father of the injured

underneath the body of the injured, therefore, it became more

suspicious as to how the blood stained lead cartridge was found,

particularly when there was no entry and exit wound of bullet was

shown in the body of the injured. The injury was simply a lacerated

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wound shown by the doctor without any blackening and charring of

the skin.

[20]. It appears from the record that the injured was not

pulling well with her husband i.e. the accused. The

accused/appellant was not seen at the spot by the complainant as

well as by the injured at the first instance as the injured was

sleeping by covering quilt and chadder. Even despite her telling

about the accused to her brother, no such statement of fact was

made by the complainant and even the complainant admitted in his

cross examination that the name of the accused was given in his

statement on suspicion.

[21]. Taking into consideration totality of facts and

circumstances of the case, I deem it appropriate to give benefit of

doubt to the appellant.

[22]. In view of above, the present appeal is accepted.

Judgment of conviction dated 24.01.2012 and order of sentence

dated 25.01.2012 passed by Sessions Judge, Panipat against the

appellant are hereby set aside. The appellant is acquitted from the

charges framed against him.

(RAJ MOHAN SINGH)
JUDGE
16.12.2017
Prince

Whether Reasoned/Speaking Yes/No

Whether Reportable Yes/No

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