SALIM Vs. STATE OF HARYANA

JUDGEMENT

(1.) Leave granted.

(2.) Challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court, disposing of two appeals i.e. Criminal appeals No.665-DB of 2004 and Criminal appeal No.376-DBA of 2005. The first was filed by the present appellant while the second was filed by the State of Haryana. Both the appeals had their factual matrix on a judgment of conviction and sentence dated 26/ 29.7.2004 passed by learned Additional Sessions Judge (Fast Track Court, Gurgaon. 14 persons faced trial for alleged commission of offences punishable under Sections 148, 149, 302, 307, 325 and 323 of the Indian Penal Code, 1860 (in short IPC) and under Section 25 of Arms Act, 1959, (in short Arms Act). The Trial Court con victed appellant Salim for offences punishable under Sections 302, 203/149, 307/149, 323/149, 325/149 IPC and Section 27 of the Arms Act, whereas other accused persons were held guilty of the offences punishable under Sections 148, 307/149, 323/149 and 325/149 IPC and various sentences were imposed. As noted above, both the accused person and the State filed the appeals.

(3.) Factual facts in a nutshell are as follows : On 25.11.2000 a medical ruqa was received from CHC Nuh regarding death of Abdul Gafar by the police and where upon SI/SHO Ram Niwas along with other police officials reached CHC Nuh and after obtaining the opinion of the doctor qua fitness, recorded statement of Alim Son of Yakub one of the injured persons. The complainant stated before the police that one killa of-land in "Dehri Wali Jungle" in the name of Zakir son of Fauj Khan was being cultivated by Rasul Khan, his cousin, for the last 3-4 months on batai. Complainant further stated before the police that at about 9.00 a.m. Hasan Mohammad son of Ibrahim and other ploughed the said field, and when they came to know about this, at about 12.30 p.m., he himself, Kalam, Irfan, Mursalin, Abdul Gafar, Lukman, Abdul Rashid, Salim s/o Abdul Rasid reached the spot in a tractor. When the complainant alongwith said persons started ploughing the field, Issa armed with double barrel gun, Salim S/o Ummar Mohd. also hav ing double barrel gun, Aslam armed with country made pistol, Habib armed with Pharsa, Hasan Mohd., Roshan, Lia, Iqbal, Nasim, Din Mohd., Sohrab, Hanif and Nayyum armed with lathies came there together in prosecution of their common object and immediately they gave lalkara that the persons belonging to complainant party should be killed, and in the meanwhile Salim fired from his double barrel gun which hit forehead and face of Abdul Gafar. Issa fired from his double barrel gun and the pallets hit Gafar on his right side, Aslam fired from the country made pistol which hit fore-head of Kalam. The complainant further reported that he alongwith Mursalin, Salim, Abdul Rashid, Lukman, Irfan intervened and tried to save the said persons. Habib gave a pharsa blow on his head, Lila inflicted lathi blow on his head whereas remaining accused with their lathis caused injuries on Irfan, Lukman, Abdul Rashid, Mursalin. Meanwhile Abdul Latif and Younus came to the spot, witnessed the occurrence, intervened and saved the injured persons from the hands of accused persons. The injured were taken in a jeep to Nuh hospital. Abdul Gafar died on the way due to the injuries suffered by him. On the basis of the complaint, formal FIR was recorded by ASI Ram Dayal. SI/SHO Ram Niwas completed the inquest pro ceedings regarding deceased Gafar. He also prepared the rough site plan and col lected from the spot, one empty cartridge with one plastic giddi. These were taken into possession after converting them into sealed parcel by preparing a memo. SI/ SHO Ram Niwas also collected from the spot blood stained earth from two places and prepared separate memos after converting them into separate parcels. The post mortem examination qua the dead body of Abdul Gafar was conducted by the doc tors. Bijender Singh, ASI, after post mortem examination brought from the doctor two parcels duly sealed which were taken into possession by SI Ram Niwas by preparing a memo on 25.11.2000. On 27.11.2000 Osab son of Issa produced one licenced gun with licence of his father alongwith 24 live cartridges which were taken into possession by SI/SHO Ram Niwas by preparing necessary memo. On 28.11.2000 SI/SHO Ram Niwas arrested eleven accused persons. He also took the weapon used for committing the murder. The gun was then recovered. Akhakha was prepared and then the same was sealed into a separate sealed parcel. The investigat ing officer also prepared the rough site plan regarding the place of recovery. On 1.12.2000 SI/SHO Ram Niwas arrested accused Hanif who too produced one lathi at that time, which was taken into possession by preparing a memo. On 29.1.2000 SI/SHO Ram, arrested Habib-accused who produced pharsa, which was taken into possession by preparing memo. Scaled site plan was got prepared. Statements of witnesses were recorded. The injured persons were examined. The FSL report was obtained. Sohrab was later on arrested whose Supplementary challan was prepared by SI/SHO Ram Niwas. After completion of necessary investigation, the challan was submitted before the Court for trial of the accused. On the basis of police reports and other evidence on file, all the accused were charge sheeted for offences punishable under Sections 148, 302/149, 307/149, 447/149, 323/149, 325/149 of IPC. Salim was also charge sheeted under section 27 of Arms Act. All the accused persons pleaded not guilty to the charges and claimed trial of their case.