Arshad vs State of Haryana

M. Jeyapaul, J.—This judgment shall dispose of Crl. A. No. 249-DB of 2009 and Crl. A. No. 63-DB of 2010 as both the appeals arise out of same impugned judgment passed by the trial Court. Accused Arshad and accused Shamshad were convicted and sentenced u/s 302 read with Section 34, Section 201 read with Section 34 and Section 397 IPC. Accused Shamshad also was convicted and sentenced for the offence u/s 25 of the Arms Act. They have challenged the judgment of conviction passed by the trial Court.

PW 2 Parveen Kumar was the brother of Shiv Kumar (since deceased). PW 2 and deceased Shiv Kumar were employed in the shop of PW 5 Subhash Goel. On 30.10.2006 at 9.15 p.m. when PW 2 and his brother Shiv Kumar were present at the shop of PW 5, accused Arshad and accused Shamshad came to the shop and took deceased Shiv Kumar. The accused had taken deceased Shiv Kumar even on earlier occasions.

PW 3 Bhim Singh was proceeding to village Patti Kalyana to see his sister during midnight on 30/31.10.06 on a motorcycle. Near a sugarcane field, he spotted accused Shamshad detaching the trolley from a tractor bearing registration No. UP-12C-0125. As accused Shamshad was known to him, he asked him why he was detaching the trolley. Accused Shamshad replied that the hook of the tractor was broken and therefore, he had proposed to get it repaired.

PW 1 Bhram Singh proceeded to his sugarcane field on 31.10.2006 at about 11.00 a.m. He spotted the dead body lying in the midst of crops. A pair of chappal was also lying in the field. There were injury marks on the dead body. He telephonically informed the police. PW 14 SI Dharambir Singh proceeded to the field of PW 1 and recorded his statement Ex. PA. A formal first information report Ex. PN was registered based on the statement Ex. PA. Blood stains were recovered. A chappal of left foot Ex. P1 was also recovered from the spot. PW 14 proceeded in search of the accused and the tractor-trolley near the sand-mines ahead of Biholi. He found a trolley laden with wood lying on the road facing towards Samalkha. The same was recovered by PW 14.

PW 6 Dr. Shashi Garg conducted post mortem examination on the dead body of Shiv Kumar and found the following injuries on his dead body:-

Oval obliquely placed piercing type of wound of the size 2.5 cm x 1 cm with inverted margins, tattooing and blackening all around the wound and clotted blood was also present all around the wound, just below the left ear below the ramus of mandible. On cut section, wound placed obliquely piercing neck muscles subcutaneous tissue, major neck veins and arteries towards the vertebral column at the level of C1-C2 vertebra, fresh blood infiltration into surrounding tissues and blackening all around inspite of best efforts bullet could not be traced.

A dark black charred type of wound with red margins all around over left infraclavicular area of the size 6 cm x 6 cm. On cut section, fresh blood was found coming out with fresh blood infiltration into surrounding tissues.

A dark black wound with redness all around over left lumber area of the size 10 cm x 6 cm. On cut section fresh blood was found oozing out.

Multiple graze type of abrasions red brown in colour were found over the chest and abdomen.

In his opinion, Shiv Kumar had died due to haemorrhage and shock on account of the gun shot injury to major neck veins which was sufficient to cause death in the normal course of life. All the injuries were found to be ante mortem in nature.

PW 13 Hukam Chand was already known to accused Shamshad. On 6.11.2006 at about 2.30 p.m., accused Shamshad suffered a confession before him that while looting the tractor-trolley from the custody of deceased Shiv Kumar, he shot dead Shiv Kumar with the assistance of two other persons. Having thrown the dead body in a sugarcane field, he had taken away the tractor-trolley. Having thus confessed he sought the help of PW 13 to produce him before the police. Accused Shamshad also confessed that his chappal was left at the spot while leaving therefrom. PW 13 took Shamshad to PW 14 ASI Dharambir Singh and surrendered him.

PW 14 arrested accused Shamshad on 6.11.2006. On 8.11.2006, accused Shamshad was interrogated. At his instance, a country-made pistol got concealed in a sand-mine near the place where the trolley laden with wood was abandoned was recovered on the basis of the disclosure statement suffered by him. Further on the basis of the disclosure statement by accused Shamshad, a chappal Ex. P4 was also recovered.

On 29.11.2006, accused Arshad was arrested from a dhaba at Sanoli road based on the secret information he received. On the basis of the disclosure statement suffered by him, a tractor which was got concealed by him within the area of village Sheetlagarhi, P.S. Jhinjhana, U.P. was recovered.

Both the accused set up a plea u/s 313 Cr.P.C. that they were innocent, but a false case was foisted on them.

On the side of the defence, DW 1 Arvind was examined. He spoke to the effect that there was no recovery of tractor from his fields. DW 2 Mahninder deposed that accused Arshad who was arrested on 10.11.2006 was released after interrogation, as he was found innocent. Again he was taken into policy custody on 25.11.2006 for interrogation.

The trial Court having relied upon the evidence of PW 2, PW 3, PW 5 and PW 13, in the background of recovery of material objects, the report submitted by the Forensic Science Laboratory and the medical evidence on record returned a verdict of conviction as stated supra.

Learned counsel appearing for the appellants would submit that PW 2 and PW 5 had not projected the last seen theory when they were examined during the inquest proceedings held by PW 14. The FSL report did not disclose a definite information that the led recovered from the ashes after cremation of the dead body had been fired from the country-made pistol allegedly recovered from accused Shamshad. No independent witness was joined by the investigating officer at any point of time. PW 2 and PW 5 had come out with contradictory versions. The deceased was the cousin of PW 3 Bhim Singh. Therefore, his evidence does not inspire confidence. The trial Court had not adverted to the evidence of the photographer who had deposed that the tractor-trolley was found at the place where the dead body was recovered. Learned counsel appearing for appellant Arshad would further submit that Arshad had not suffered any extra judicial confession. His presence was not definitely spoken to by PW 5 Subhash Goel. Therefore, it is his submission that the accused are entitled to acquittal.

We heard the submissions made by learned DAG, Haryana appearing for the State supporting the verdict of conviction and sentence passed by the trial Court.

The case is based on circumstantial evidence. The Court will have to thoroughly analyze the entire evidence on record to find whether the material circumstances implicating the accused to the crime have been cogently spoken to by the witnesses. The Court also will have to see whether there is material break in the chain of circumstances projected by the prosecution.

PW 5 Subhash Goel was the employer of PW 2 Parveen Kumar and deceased Shiv Kumar. He had categorically deposed that a day prior to the recovery of the dead body of Shiv Kumar, accused Shamshad came alongwith one other person and enquired about Shiv Kumar. He also informed them that Shiv Kumar had been to Delhi with a tractor-trolley laden with wood. PW 5 was found to be the owner of the tractor-trolley bearing registration No. UP-12-C-0125. PW 2 Parveen Kumar has also supported the case of the prosecution. He has deposed that at about 9.15 p.m., accused Shamshad and accused Arshad came to the shop and took the deceased alongwith them.

As rightly pointed out by learned counsel appearing for the appellants there is some contradiction in the evidence of PW 2 and PW 5. PW 2 would depose that at about 9.15 p.m. both the accused came to the shop of PW 5 and took away deceased Shiv Kumar. But PW 5 has deposed that accused Shamshad came with one other person at about 6.30 p.m., a day prior to the recovery of the dead body and enquired about Shiv Kumar. He informed him that Shiv Kumar had been to Delhi with a tractor trolley laden with wood.

In my considered view, the contradiction found in the evidence of PW 2 and PW 5 is not found so material as to affect the foundation of the case of the prosecution. PW 2 and PW 5 have categorically deposed that the accused had come down to the shop of PW 5 in search of deceased Shiv Kumar. It may be a case where the accused accompanied deceased Shiv Kumar from the shop of PW 5 or it may be a case where the accused having ascertained the whereabouts of Shiv Kumar who was proceeding on the way to Delhi, accompanied deceased Shiv Kumar. At any rate, we find that the accused who had sought the company of deceased Shiv Kumar accompanied deceased Shiv Kumar during the night on the fateful day.

Apart from the last seen theory projected by the prosecution, we find that PW 3 Bhim Singh had spotted accused Shamshad detaching the trolley from the tractor during midnight on 30/31.10.2006 near the sugarcane field. It is to be noted that the dead body was recovered only in the sugarcane field of PW 1 Bhram Singh. It is true that PW 3 Bhim Singh was closely related to deceased Shiv Kumar. But PW 3 has come out with a plausible explanation for his presence near the sugarcane field where the dead body was later on located that he was proceeding to meet his sister. The evidence of PW 3 Bhim Singh cannot be discarded just because he was related to deceased Shiv Kumar. Spotting of accused Shamshad with tractor-trolley near the sugarcane field provides another important link to the last seen theory spoken to by PW 2 and PW 5. A left foot chappal, apart from the pair of chappals of the deceased, was recovered from the spot. On the basis of the disclosure statement suffered by accused Shamshad, right foot chappal was recovered. Of course, the blood found on the chappal was found disintegrated by the Forensic Science Expert. But the evidence let-in by the prosecution that left foot chappal was recovered from the scene of occurrence and the right foot chappal was recovered at the instance of accused Shamshad squarely points to the guilt of accused Shamshad.

A country-made pistol was recovered at the instance of accused Shamshad. It is in evidence that two led pieces were recovered from the ashes after cremation of the dead body of Shiv Kumar. The FSL report would disclose that the bullet could have formed part of the bullet core. Though the FSL report Ex. PY does not conclusively establish that the two led pieces recovered from the ashes formed part of the bullet core, the possibility of the led pieces forming part of the bullet core had been indicated in the above report.

On the basis of the disclosure statement suffered by accused Arshad, a tractor from the sugarcane field within the police station limit of Jhinjhana had been recovered. Such a recovery of the tractor on 2.12.2006 lends corroboration to the case of the prosecution that accused Arshad also was involved in the robbery of the tractor-trolley.

We cannot ignore, in the above background, the extra judicial confession suffered by accused Shamshad before PW 13 Hukam Chand. Accused Shamshad was known to Hukam Chand. Therefore, accused Shamshad had approached him and asked him to facilitate the surrender, having confessed the crime of murder and robbery of the tractor-trolley.

Of course, during the course of inquest, PW 2 and PW 5 had not spoken about the last seen theory projected by the prosecution. In our view, the scope of the inquest proceedings does not permit the investigating official to lay a strong foundation for the case of the prosecution. Inquest is conducted just to know the cause of death of the person. Therefore, in our view, the last seen theory which was not projected by PW 2 and PW 5 during the inquest proceedings does not weaken the case of the prosecution.

The investigating official should have associated independent witness for the purpose of recovery of the material objects. But there is no rule that the evidence of the investigating official shall be discarded just because no independent witness was associated. The case projected by the prosecution cannot be rejected on the sole ground that independent witness was not associated.

Of course, the photographer would depose that he found the tractor-trolley at the place where the dead body was recovered on 31.10.2006 itself. Firstly, that was not his original version before the investigating official. Secondly, the photograph taken by him had not captured the presence of tractor-trolley near the sugarcane field where the dead body was recovered. Therefore, we do not propose to give any weightage to such a version of the photographer who was examined as PW 17.

In our considered view, the trial Court has properly evaluated the evidence on record and come to a right conclusion. Both the appeals fail and therefore, they stand dismissed. Accused Shamshad is on bail. His bail bond stands cancelled. He shall surrender within 15 days from the date of this judgment before the Chief Judicial Magistrate, Panipat who shall send him to jail to undergo the remaining part of the sentence. If he fails to surrender, the learned Chief Judicial Magistrate, Panipat shall take coercive steps to secure his presence and send him to jail to undergo the remaining part of the sentence.