GAJENDER PARKASH AND ANOTHER Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal has been filed by the appellants Gajender Parkash son of Kailash Chander and Kailash Chander son of Mukhtiar Singh appellants No. 1 and 2 respectively against the judgment dated 13.7.2004 passed by the learned Additional Sessions Judge, Bhiwani whereby the appellants have been convicted for the offences punishable under Sections 302 and 307 read with Section 34 Indian Penal Code ("IPC" -for short) and Kailash Chander (appellant No. 2) has also been convicted for the offence under Section 27 of the Arms Act, 1959 and the order of sentence dated 14.7.2004 whereby the appellants have been sentenced to undergo imprisonment for life, besides, pay a fine of Rs. 2000/-each for the offence under Section 302 IPC and undergo rigorous imprisonment for five years, besides, pay a fine of Rs. 2000/-each for the offence under Section 307 IPC; besides, Kailash Chander (appellant No. 2) has been sentenced to rigorous imprisonment for one year for the offence punishable under Section 27 of the Arms Act,1959 and in default of payment of fine for the offences under Sections 302 and 307 IPC, the appellants have been ordered to undergo additional rigorous imprisonment for six months. All the sentences have, however, been ordered to run concurrently.

(2.) The FIR (Ex.PC) in the case has been registered on the statement of Sri Kishan (PW9) son of Mukhtiar Singh. It is stated by him that he is resident of village Patuwas and working as a ward-servant at the Civil Hospital Dadri. They were three brothers; the eldest was Kailash Chander (appellant No. 2), younger to him is the complainant Sri Kishan (PW9) himself and the youngest is Parvinder (deceased). All the three brothers resided separately. Kailash Chander (appellant No. 2) had a land dispute with the complainant Sri Kishan (PW9), his brother Parvinder (deceased) and father (Mukhtiar Singh) which was pending in Court. A day earlier to the lodging of the report i.e. on 2.2.2001 at about 5.30 p.m. in the evening, the daughter of the complainant namely Asha after giving water to the buffalo was returning and while she was coming, Gajender Parkash (appellant No. 1) son of Kailash Chander (appellant No. 2) followed her from behind and abused her and also beat her. In the morning, when the complainant Sri Kishan (PW9) raised a protest as to why his daughter was given a beating, an altercation ensued and Kailash Chander (appellant No. 2) brought out a gun from his house. During this time Parvinder (deceased) brother of the complainant Sri Kishan (PW9) and Manmohan (PW10) son of the complainant Sri Kishan (PW9) had also reached at the spot. Then Kailash Chander (appellant No. 2) with his licensed gun fired at Parvinder, brother of the complainant Sri Kishan (PW9) which hit Parvinder (deceased) on his forehead. Kailash Chander (appellant No. 2) then again fired 2-3 shots which hit Parvinder, brother of the complainant (PW9) and he (Parvinder) fell down. Kailash Chander (appellant No. 2) fired more shots which hit Manmohan (PW10), the son of the complainant Sri Kishan (PW9). Due to the shots that were fired, Rajesh son of Sri Narian who is their neighbor and was present on the roof of his house also received pellet injuries on his chest. Thereafter, Gajender Parkash (appellant No. 1) after taking the gun from his father fired a shot with it on the mouth of Parvinder and they ran away. The occurrence was witnessed by the complainant Sri Kishan (PW9), his wife Shakuntla Devi and his son Manmohan (PW10) with their eyes. Kailash Chander (appellant No. 2) and his son Gajender Parkash (appellant No. 1) by taking the gun with them went to their house and they fired from the roof. The complainant Sri Kishan (PW9) by arranging a conveyance was taking his brother Parvinder (deceased) and his son Manmohan (PW10) to the General Hospital, Dadri that on the way Parvinder died. Rajesh son of Sri Narain was brought to the hospital at Dadri by his family members. The doctor referred Manmohan (PW10) son of the complainant Sri Kishan (PW9) and Rajesh son of Sri Narain to the Post-Graduate Institute (PGI -for short), Rohtak. The dead body of Parvinder was got kept in the dead house. The complainant Sri Kishan (PW9) after leaving his nephew and wife near the dead body had come to the police. The said statement was signed Sri Kishan (PW9), which was attested by Ajaib Singh SI/SHO, Police Station Sadar Dadri (PW11) on 3.2.2011. Police proceedings were recorded to the effect that the complainant Sri Kishan (PW9) on reaching the Police Station had got recorded his said statement, which was read over and explained to him and he after admitting it to be correct signed the same in English which was attested by Ajaib Singh SI/SHO, Police Station Sadar Dadri (PW11). The statement disclosed the commission of offences under Section 302 read with Section 34 IPC and Section 27 of the Arms Act. After registration of the case, Ajaib Singh SI/SHO (PW11) along with SI Sheotaj Singh (PW13), ASI Bishambar Dayal, Head Constable Subash Chander, Constable Balwant Singh and Constable Surinder Singh proceeded to the General Hospital, Dadri. Special report was being sent to the Ilaqa Magistrate and senior officers through Constable Satpal Singh. Some officer of the rank of Inspector was asked to be sent to the spot for investigation. The complainant Sri Kishan (PW9) was taken with the police party.

(3.) Ajaib Singh SI/SHO, Police Station Sadar Dadri (PW11) along with police officials reached General Hospital, Dadri. Inquest proceedings (Ex.PL) under Section 174 of the Code of Criminal Procedure ("CrPC" -for short) were initiated. After that Ajaib Singh SI/SHO (PW11) moved an application (Ex.PM) before the Medical officer, General Hospital Dadri for conducting post mortem examination of Parvinder Singh (deceased). Then Ajaib Singh SI/SHO (PW11) reached the place of occurrence and lifted blood-stained earth with cotton. The statement of complainant Sri Kishan (PW9) and his wife namely Shakuntla were recorded. On the same day i.e. 3.2.2001 after post mortem examination of the dead body Ajaib Singh SI/SHO (PW11) took in possession vide recovery memo Ex.PN the clothes and pellets, which were handed over to him (PW11) by the doctor after post mortem. On 3.2.2001 Ajaib Singh, SI/SHO (PW11) also sought information from the Medical officer, General Hospital Dadri regarding Manmohan (PW10) injured. He submitted an application (Ex.PQ) for seeking opinion regard Manmohan (PW10) and the doctor at 3.45 p.m. opined that the patient (Manmohan-PW10) was fit to make a statement. On 5.2.2001 Ajaib Singh SI/SHO (PW11) arrested Kailash Chander (appellant No. 2) and recorded his disclosure statement (Ex.PO). The remaining investigation in the case was conducted by SI Sheotaj Singh (PW13). On 3.2.2001 SI Sheotaj Singh (PW13) had gone to the place of occurrence and prepared rough site plan (Ex.PS). Thereafter, he accompanied Ajaib Singh SI/SHO (PW11) for search of the accused. On 4.2.2001 on the direction of SI/SHO Ajaib Singh (PW11), Sheotaj Singh (PW13) went to PGI Rohtak to record the statement of Rajesh (neighbor of the complainant Sri Kishan-PW9), however, the injured Rajesh was not present on his bed. On 5.2.2001, Sheotaj Singh (PW13) joined SI/SHO Ajaib Singh (PW11) in the investigation of the present case. On that day SI Ajaib Singh (PW11) arrested Kailash Chander (appellant No. 2) and recorded his disclosure statement (Ex.PO) in the presence of SI Sheotaj Singh (PW13). Then Kailash Chander (appellant No. 2) was locked up in the Police Station and was produced in the Court on 6.2.2001. Sheotaj Singh SI (PW13) also prepared rough site plan (Ex.PT) and recovered six live cartridges and five empties and one gun, which were taken in possession vide recovery memo Ex.PF. The 'khakha' (sketch) (Ex.PE) of the gun was prepared. The gun was recovered on the disclosure statement (Ex.PO) of Kailash Chander (appellant No. 2) from underneath of 'Turi Khota' (fodder room) of the accused (appellants). On 7.2.2001, SI Sheotaj Singh (PW13) arrested Gajender Parkash (appellant No. 1) and recorded his disclosure statement (Ex.PU) and on the basis of the same, on 8.2.2001 two empty cartridges along with one scooter were recovered vide recovery memo Ex.PV. SI Sheotaj Singh (PW13) prepared site plan (Ex. PX) of the place of recovery of empty cartridges. The statements of the relevant witnesses were recorded and after completion of investigation, police report (challan) was prepared by SI Ajaib Singh (PW11). The police report (challan) in the case was filed in the Court of the learned Judicial Magistrate Ist Class, Charkhi Dadri on 24.4.2001. The said learned Magistrate in view of the offences under Sections 302 and 307 IPC being alleged observed that the case was triable by the Court of Session. Accordingly, the case was committed to the Court of Session at Bhiwani. The learned Additional Sessions Judge to whom the case was assigned vide order dated 16.7.2001 observed that a prima facie case for the commission of offences punishable under Sections 302 and 307 read with Section 34 IPC were found to be made out against both the accused (appellants) and a prima facie case for the commission of offence under Section 27 of the Arms Act, 1959 was found to be made out against Kailash Chander (appellant No. 2). Accordingly, the charges were framed on 16.7.2001 by the learned Additional Sessions Judge, Bhiwani which are to the effect that both the appellants on 3.2.2001 in the area of village Patuwas, in furtherance of their common intention, did commit murder by causing the death of Parvinder son of Mukhtiar Singh and thus thereby they both committed an offence punishable under Section 302 read with Section 34 IPC. Secondly, on the same date, time and place, both the appellants in furtherance of their common intention caused injuries with fire arm to Manmohan (PW10) and Rajesh with such intention or knowledge or under such circumstances that if by that act they had caused death of Manmohan (PW10) and Rajesh, they would have been guilty of murder and thus thereby they committed an offence punishable under Section 307read with Section 34 IPC. Thirdly, Kailash Chander (appellant No. 2) on 3.2.2001 in the area of village Patuwas, used his licensed gun in contravention of Section 5 of the Arms Act and he thus thereby committed an offence punishable under Section 27of the Arms Act. The appellants were directed to be tried by the said Court of the learned Additional Sessions Judge, Bhiwani for the said charges. The contents of the charge sheet were read over and explained to the accused (appellants) in simple Hindi, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 14 witnesses; besides, tendered documents in evidence including the FSL report (Ex.PG) and Serology report (Ex.PJ) and closed its evidence. The statements of the appellants in terms of Section 313 CrPC were recorded. Both the appellants took the defense that they were innocent and were not present at the spot at the time of alleged occurrence, so the question of their participating in the crime for causing any injury to the deceased or any other witness was out of question. They had not caused any injury either to the deceased or to any witness. In defense Ramesh Kumar Solanki, Draftsman (DW1) was examined who stated that he was a trained draftsman and working as such for the last five years. He (DW1) had appeared as witness as a Draftsman in many Courts and in many cases. He had seen the scaled site plan (Ex.DA) which was prepared by him (DW1) at the spot on 16.12.2002 on the pointing out of Laxmi Devi wife of Kailash Chander (appellant No. 2). The marginal notes were correctly shown as per the spot and as per the pointing of Laxmi Devi. The crow-flight/distance between points N and P in the site plan (Ex.DA) was 38 feet (sic. 138 feet) and in between this there was the 'chaubara' of the house of Medha Ram son of Guljari which was 21 feet from the ground level. In cross-examination he stated that it was wrong to suggest that he had wrongly shown points P. It was also wrong to suggest that in between points N and P, 'chaubara' of Medha Ram did not appear to fall in between. It was also wrong to suggest that this 'Chaubara' remained on the side of the crow-flight. It was wrong to suggest that he had shown margin points wrongly. The learned Additional Sessions Judge after considering the evidence and material on record held the appellants guilty and convicted them for the offences under Sections 302 and 307 read with Section 34IPC. Besides, Kailash Chander (appellant No. 2) was also held guilty and convicted for the offence under Section 27 of the Arms Act. They were sentenced to undergo imprisonment for life for the offence under Section 302 IPC; besides, rigorous imprisonment for five years for the offence under Section 307 IPC and Kailash Chander (appellant No. 2) was further sentenced to rigorous imprisonment for one year for the offence under Section 27 of the Arms Act. All the sentences were, however, ordered to run concurrently. Aggrieved against the said judgment and order passed by the learned Additional Sessions Judge, Bhiwani, the appellants have filed the present appeal.