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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