PANKAJ SHARMA Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) All these four appeals arise out of the judgment of conviction and order of sentence dtd. 12/12/2017 passed by the court of learned Principal Sessions Judge, Jammu (hereinafter to be referred as 'the trial court') in chargesheet titled 'State vs. Gurdev Singh and Ors' arising out of FIR No.160/2009 of P/S Satwari, by virtue of which, all the appellants have been convicted for commission of offence under Sec. 302/34 R.P.C. The appellants namely Gurdev Singh alias Danchi and Harpreet Singh alias Sunny have been further convicted for the commission of offence under Sec. 3/25 Indian Arms Act. All the appellants have been sentenced to undergo rigorous imprisonment for life under Sec. 302 RPC and to pay a fine of Rs.50,000.00 each. In default of payment of fine of Rs.50,000.00, the appellants have been ordered to undergo further imprisonment of like nature for a period of one year. The appellants namely Gurdev Singh alias Danchi and Harpreet Singh alias Sunny have been further sentenced to undergo simple imprisonment for three years under Sec. 3/25 Indian Arms Act and to pay a fine of Rs.10,000.00 each. In default of payment of fine of Rs.10,000.00 both the appellants have been ordered to undergo further imprisonment of like nature for a period of three months.

(2.) Though the appellants have filed four separate appeals but the main and common ground of challenge thrown to the judgment of conviction and the order of sentence is that the learned trial court has not appreciated the evidence in its right perspective and the alleged eyewitnesses produced by the prosecution had made contradictory statements before the learned trial court. It is also stated that all the three eye witnesses examined by the prosecution were the family members of the deceased and in fact, there was no occasion for all of them to be present on spot to witness the murder of the deceased. It is also stated that PW Gyan Singh, father of the deceased during his cross-examination, resiled from his statement made during examination-in-chief but the learned trial court has not appreciated the same. The appellants have also raised the issue of delay in recording the statements of the eye witnesses thereby urging that the witnesses were planted only to falsely implicate the appellants.

(3.) The brief facts as they emanate from the charge-sheet are that FIR bearing No. 160/2009 dtd. 27/11/2009 for commission of offences under Sec. 302 RPC read with Sec. 3 and 25 Arms Act was registered, after the receipt of a Report No. 24 dtd. 27/11/2009 of Police Post Gadigarh at Police Station, Satwari at 6.15 AM. It was stated in the report No.24 that on 27/11/2009 at 5.00 AM an information was received from reliable source that one person Harpreet Singh alias Babbi S/o. Gyan Singh was killed by some unknown person(s) in the night intervening 26/27/11/2009 by gunshot and his dead body was lying on the road at Rani Bagh near Mahindra Body Builders Workshop. After the registration of FIR, investigation was entrusted to Sub- Inspector Mohd. Irfan, In-charge Police Post Gadigarh, Jammu. He visited the spot and prepared the site plan. Photographs of the deceased were taken. He also seized the blood-stained clay and simple clay from the spot. Auto rickshaw No. JK02F-3317 of the deceased was also seized. The Investigating Officer in his investigation concluded that on 24/11/2009, all the accused persons in the shop of Gurdeep Singh situated at Gadigarh were conspiring to kill the deceased and the conspiracy of the accused was heard and watched by the parents of the deceased. The deceased was an Auto driver by profession and used to drive Auto till late night. When the deceased did not return as usual on 26/11/2009, his parents and sister started searching for him on 27/11/2009 and when at around 3 to 4 AM, reached near Rani Bagh, auto of the deceased passed them, which was followed by one motorcycle and Van bearing No. JK02-0050. Gurdev Singh alias Danchi, Harpreet Singh alias Sunny were on the motorcycle whereas accused Gurdeep Singh, Ravinder Singh, Praveen Singh alias Manpal Singh, Pankaj Sharma alias Killer and Tarlok Singh were travelling in the Van. The accused on the motorcycle parked the motorcycle in front of the Auto and stopped the Auto, whereas other accused who were travelling in the Van also stopped and pulled the deceased out of the Auto. Accused Ravinder Singh exhorted and asked accused Danchi to hand over the gun to Sunny. Then Gurdev Singh alias Danchi handed over 12 Bore Shot Gun to Harpreet Singh alias Sunny, who shot two bullets at the back of Harpreet Singh alias Babbi (deceased), who was caught hold by other accused. Thereafter, the deceased was thrown away on the road side and the accused fled away. During the investigation, pursuant to the disclosure made by the accused Gurdev Singh alias Danchi, the weapon of offence was recovered from the house of one Jagdish Raj. One Bajaj Discover Motorcycle and Van bearing No. JK02/0050, were also seized. After the conclusion of the investigation, chargesheet was filed against the accused persons for commission of offences under Sec. 302/341/34/201 R.P.C, 3/25/27 Indian Arms Act against the appellants on 13/2/2010 which was committed to the learned trial court. The learned trial court vide order dtd. 15/12/2010 charged the appellants Gurdev Singh alias Danchi and Harpreet Singh alias Sunny for commission of offences under Sec. 302, 341, 109, 201 RPC and 3/25 and 27 Arms Act whereas the other appellants along with accused Tarlok Singh were charged for commission of offences under Sec. 302, 341 and 109 RPC. The prosecution had cited as many as 33 witnesses out of which, the prosecution examined 24 witnesses, whereas the appellants did not lead any evidence in their defence. Learned trial court after hearing the parties, acquitted one accused namely Tarlok Singh, however, convicted and sentenced the appellants as mentioned above. Arguments: