BALWINDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE Appellant -accused, Balwinder Singh alias Bindu son of Prem Singh, has preferred this appeal against the judgment dated 5.9.2006 passed by Sessions Judge, Kaithal, vide which he convicted him for the offences under Section 302 Indian Penal Code, 1860 and 25 of the Arms Act, 1959 (for brevity -'the Act') and sentenced him as under:

(2.) THE prosecution story, in brief, is that on 9.7.2004, Krishan Lal, ASI (PW -7), along with Ramesh Kumar, Constable (PW -10) and other police officials, was present near the Distributary bridge on Balbera Cheeka road in Govt. vehicle No. HR -08D -4373 in connection with night patrolling. He heard noise of firing from the farmhouse built on the right side of that road, upon which he proceeded towards that farmhouse on the katcha passage. In the headlight of the vehicle, he saw the present accused coming from the front side. On seeing that light, accused immediately turned back and started walking briskly. The accused was apprehended by him with the help of his companions. When his personal search was taken, one country made pistol Ex.P -35 was recovered from the right "dub" of his trousers and it was found that the barrel of that pistol was still hot. On his further search, two live cartridges of.315 were recovered from the right side pocket of his trousers. The ASI prepared the rough sketch Ex.PG/1 of the pistol and took that into possession, along with live cartridges, vide memo Ex.PG. On interrogation, it was disclosed by the accused that Mohinder Singh had illicit relations with his mother Omi Devi and had been residing with her and his brother Raghbir Singh from the last 10/12 years and that he had shot dead all three of them. In the meanwhile, Jai Singh and Raja came to that place and they were joined in the investigation by the ASI. Thereafter, the ASI took the accused and those witnesses to the farmhouse. When they reached that place, dead body of one young boy was found lying near a "charpai" with fire arm injury on the left side of the chest. The name of that boy was disclosed by the accused as Raghbir Singh and was identified by Jai Singh and Raja. Thereafter, the accused took them on the roof of the house and the dead body of his mother, Omi Devi was found lying at that place with fire arm injuries. That dead body was identified by the same witnesses. Thereafter, the accused took the ASI to the tubewell by the side of the farmhouse where the dead body of Mohinder Singh was found lying near the water tank with fire arm injuries. The ASI sent his ruqa Ex.PH to the police station and on the basis thereof, formal FIR Ex.PC was recorded under Section 302 Indian Penal Code, 1860 and Section 25 of the Act. On the receipt of the information, Ram Pal, SI/SHO (PW -11) reached the spot and took over the investigation from the ASI. He called Surinder Kumar, Photographer (PW -6), who took the photographs Exs.P3 to P8. He collected blood stained earth from the place where the dead body of Mohinder Singh was lying and put the same in a small plastic box, which was converted into a parcel and was sealed by him with his seal 'RP'. The sealed parcel was taken into possession, vide memo Ex.PJ/1. Blood stained earth was also collected from the place where the dead body of Omi Devi was lying, which was put into a small plastic box. The mattress on the charpai was also found blood stained and that portion of the mattress, which was stained with blood, was cut and was converted into a parcel. The plastic box was also converted into a parcel and both the parcels were sealed by the ASI with his seal 'RP' and were taken into his possession, vide memo Ex.PJ/2. From near the dead body of Raghbir Singh, blood stained earth was collected and was put in a separate plastic box, which was converted into a parcel. The portion of the mattress on his charpai, which was found stained with the blood, was cut and was converted into a parcel. Both the parcels were sealed by the SI with his seal 'RP' and were taken into possession, vide memo Ex.PJ/3. While inspecting the spot, the SI recovered one live cartridge in the courtyard by the side of the dead body of Raghbir Singh, two empty cartridges from in front of the rooms, one empty cartridge at the bottom of the staircase, one empty cartridge on the last step of the staircase, two empty cartridges from near the dead body of Omi Devi and two empty cartridges from near the dead body of Mohinder Singh. All those empty cartridges were converted into a parcel and it was sealed by the SI with his seal 'RP' and was taken into possession, vide memo Ex.PJ. He prepared rough site plan Ex.PU of the place of occurrence with correct marginal notes. He prepared the inquest reports Ex.PR, PS and PT in respect of the dead bodies of Raghbir Singh, Omi Devi and Mohinder Singh, respectively, and sent the same for post mortem examination to the Civil Hospital through Kuldep Singh and other Constables. When the SI interrogated the accused, he suffered a disclosure statement Ex.PX that at the time of occurrence he was wearing pyjama and grappled with Mohinder Singh, as a result of which, that pyjama became blood stained and he had kept concealed the same underground in the cage of hens, about which only he had the knowledge and could get the same recovered. In pursuance of that disclosure statement, he got recovered blood stained pyjama which was converted into a parcel and was sealed with the seal 'KL'. That sealed parcel was taken into possession, vide memo Ex.PO. The autopsies on the dead bodies of the deceased were performed by a Board of Doctors consisting of Dr. Hambir Mazumdar (PW -8). Dr. S.K Jain and Dr. Piyush Sharma. They found five fire arm injuries and one incised wound on the dead body of Omi Devi, one fire arm injury on the person of Raghbir Singh and three fire arm injuries on the person of Mohinder Singh. They gave their opinion that those fire arm injuries caused extensive damage to the vital organs and were sufficient to cause death in the ordinary course of nature. One bullet P -64 was recovered from the dead body of Mohinder Singh which was sealed in a bottle. After the post mortem examination, the wearing apparels found on the dead bodies were converted into separate parcels. Those parcels and the sealed bottle were produced by Balraj Singh, Head Constable before the SHO and were taken into possession, vide memo Ex.PQ. On 20.8.2004, the sealed parcel containing the live cartridges so recovered from the possession of the accused was produced before Karnail Singh, Head Constable/armourer. After opening the parcel, he tested those cartridges Ex.P1 and P -2 and found the same to be live. He gave report Ex.PT about that test. The scaled site plan of the place of occurrence Ex.PA was got prepared from Subhash Chand Patwari, PW -2. The sealed parcels containing the pistol, empty cartridges, bullet, wearing apparels, blood stained earth and blood stained mattresses were sent to FSL on 4.8.2004 and were delivered at that place with seals intact. After examination, it was reported by that Laboratory, vide report Ex. PV, that the firing mechanism of the pistol was in working order and six of the empty cartridges had been fired from the same. It was also reported, vide report Ex. PV/2, that the earth, pieces of mattresses and the wearing apparels were stained with human blood. The prosecution of the accused for the offences under Section 25 of the Act was sanctioned by the District Magistrate, vide his order Ex. PA. After the completion of investigation, the challan was put in before the SDJM, Guhla, who committed the same to the Court of Session, on the ground that the offence under Section 302 Indian Penal Code, 1860 was exclusively triable by the Court of Session.

(3.) ON appearance of the accused, in the Court, copies of all the documents sent along with the police report and relied upon by the prosecution were supplied to him as per the mandatory requirements of Section 207 Code of Criminal Procedure From the perusal of those documents, and after hearing Public Prosecutor for the State and the accused in person the Additional Sessions Judge, Kaithal, found sufficient grounds for presuming that the accused committed offences punishable under Section 302 Indian Penal Code, 1860 and Section 25 of the Act. He was charged accordingly, to which he pleaded not guilty and claimed trial.