Om Parkash vs State of Haryana

Hemant Gupta, J.—The present appeal is by Om Parkash against the judgment of conviction dated 05.03.2002 and order of sentence

dated 07.03.2002 passed by the learned Sessions Judge, Karnal, convicting and sentencing the Appellant for life imprisonment for the offence

punishable u/s 302 and to pay a fine of Rs. 20,000/-. In default of payment of fine, the Appellant was directed to undergo further rigorous

imprisonment for a period of two years. The Appellant was also convicted and sentenced to undergo rigorous imprisonment for a period of three

years for the offence punishable u/s 25 of the Arms Act, 1959. Both the sentences were ordered to run concurrently.

The prosecution case was set in motion on the statement of Mai Chand son of Sunder Lal, a neighbourer of the deceased Banarsi and Bal

Kishan, both sons of Bhulla Ram, residents of Village Mehmadpur made to SI Karta Ram at about 2.30 AM on 30.08.2000. In his statement

(Ex.PA), Mai Chand has stated that he is resident of Village Mehmadpur and is doing the work of cultivation. On the night of 29/30.08.2000 at

about 12 mid-night, he was sleeping in his house. On hearing the noise from the side of the house of Bal Kishan son of Bhulla Ram, he along with

Ram Kishan, brother of Bal Kishan reached the house of Bal Kishan and saw that Bal Kishan was lying smeared with blood on the cot placed in

the verandah constructed in front of the house. He has suffered fire shot injury in his stomach. He further stated that Bala Devi wife of Bal Kishan

told them that Om Parkash @ Pappu son of Gaze Singh, who has left the village many years ago, had come and fired a shot from his pistol in the

stomach of her husband Bal Kishan, while he was sleeping. Electric bulb was on in the verandah. She tried to catch Pappu, but he escaped by

scaling over the wall after separating himself along with the pistol. He further stated that after arranging a Maruti Car of Vinod Sharma, a resident

of the Village, Ram Kishan, Bala Devi and some other villagers took Bal Kishan to Karnal Hospital. Thereafter, he along with Ami Lal,

Chowkidar, went to the house of Banarsi, brother of Bal Kishan, where he (Banarsi) was also found lying dead in the verandah because of fire arm

injury in the chest and that the sufficient blood had oozed. He further stated that he has a suspicion that Pappu has murdered Banarsi by firing a

shot before murdering Bal Kishan, as Pappu was nursing a grudge because Bal Kishan and Banarsi had purchased agricultural land of Pappu and

his brother Sahab Singh about 7-8 years ago. On the basis of such statement, FIR (Ex.PA/1) was lodged at 2.40 AM and the special report was

delivered by Head Constable Kuldeep Singh to the Illaqa Magistrate at 3.45 AM.

Thereafter, the police party headed by SI Karta Ram accompanied Mai Chand to the place of occurrence i.e. the house of deceased Banarsi

and got photographed the scene of occurrence by Sandeep, Photographer. SI Karta Ram also prepared a rough site plan (Ex.PT) of the place of

occurrence. He also lifted one empty of 12 bore as well as blood stained earth from the place of occurrence, which were taken into possession

after converting into separate sealed parcels. Thereafter, he sent the dead body of Banarsi to Government Hospital, Karnal for post-mortem

examination. The police party also visited the second place of occurrence i.e. the house of Bal Kishan, from where also SI Karta Ram lifted one

empty of 12 bore and taken into possession after converting into sealed parcel. Constable Ran Singh produced before him (SI Karta Ram) two

sealed parcels containing pellets and blood stained dhotirespectively as well as post-mortem report handed over to him by the Medical Officer

after conducting post-mortem examination on the dead body of Banarsi. On 30.08.2000 itself, SI Karta Ram handed over the investigations of the

case to Inspector Subhash Chander in pursuance of the directions of the Superintendent of Police, Karnal.

On 30.08.2000, ASI Azad Singh, who partly conducted the investigations, went to PGIMS, Rohtak and moved an application Ex.PN before

the Medical Officer to ascertain whether the injured Bal Kishan was fit to make a statement, upon which Medical Officer vide his opinion Ex.PN/1

at about 8.20 pm has opined that he (Bal Kishan) was not fit to make a statement. ASI Azad Singh again visited PGIMS, Rohtak on 01.09.2000

and moved another application Ex.PO, on which the Medical Officer gave his opinion Ex.PO/1 to the effect that the injured Bal Kishan was fit to

make statement. Thereafter, he recorded the statement of injured Bal Kishan (Ex.PQ) u/s 161 Code of Criminal Procedure

The accused Om Parkash @ Pappu was arrested on 01.09.2000 by Inspector Subhash Chander on receipt of a secret information. During

interrogation, the accused suffered a disclosure statement (Ex.PY) in respect of concealment of a country made pistol and two live cartridges in the

turafodder in a kothaat his house. In pursuance of such statement, the accused led the police party to the disclosed place and got recovered a

country made pistol of .12 bore and two live cartridges, which were taken into possession after converting into separate parcels.

On receiving the information about the death of Bal Kishan on 03.09.2000, ASI Azad Singh went to PGIMS, Rohtak and moved an application

(Ex.PR) for conducting post-mortem examination on the dead body of Bal Kishan. After conducting post-mortem examination, the Medical

Officer handed over him a sealed parcel of pellets taken out from the dead body of the deceased Bal Kishan, which was taken into possession

vide Ex.PS.

After completing the other necessary formalities, the accused was made to stand trial for the offences punishable under Sections 302 IPC and

25 of the Arms Act, 1959. To prove its case, apart from examining PW-14 ASI Azad Singh; PW-17 SI Karta Ram; PW-18 Inspector Subhash

Chander, who deposed in respect of manner of investigations carried out by them, as well as other official witnesses, the prosecution has examined

PW-1 Mai Chand, the author of FIR; PW-2 Bala Devi, wife of deceased Bal Kishan; PW-3 Subhash son of Fateh Singh, nephew of deceased

Banarsi and Bal Kishan; PW-4 Dr. Deepak Parkash; PW-14 Dr. Subhash Juneja; and PW-19 Dr. Amar Bajaj. The Investigating Agency also

tendered into evidence reports of the Forensic Science Laboratory Exs.PAA and PAA/1 to the effect that the empties recovered from the place of

occurrence i.e. houses of Bal Kishan and Banarsi are proved to have been fired from the pistol recovered vide recovery memo Ex.PY/2 in

pursuance of the disclosure statement (Ex.PY) of the accused Om Parkash and that the pellets recovered during the post-mortem examination

from the dead bodies of Bal Kishan and Banarsi were fired lead pallets usually loaded in shotgun cartridges including .12 bore pistol.

After considering the entire evidence on record, the learned trial Court convicted and sentenced the Appellant, as mentioned above.

PW-19 Dr. Amar Bajaj conducted post-mortem examination on the dead body of Banarsi on 30.08.2000 at 10.00 am. He found a round

wound with inverted margin measuring 2 x 2 cm present over the left side of the chest, 4 cm from midline and 6 cm blow and inner to left nipple.

Blackening around the wound was present. On dissection, heart was badly damaged and left lung and spleen were lacertated. On exploring, 3

pieces of plastic and a few metallic pellets were taken out of lungs and wall of stomach over which these were embeded. As per his opinion, the

cause of death was injury to vital organs. One of the parcels handed over the police contained a small sealed jar with two seals and containing

three pieces of plastic body and few pellets recovered from the body of the deceased Banarsi.

PW-4 Dr. Deepak Parkash has medico-legally examined Bal Kishan at the first instance on 20.08.2000 at 1.20 am. He deposed that there

was a circular wound on the abdomen just below and lateral to the umbicus measuring around 5.5 cm and margin of the wound and blackened and

inverted. He further deposed that the patient was speaking, when he was brought in the Hospital and was in fit state of mind. In his cross-

examination, he stated that the injured did not tell him the name of the assailant nor he enquired from him.

PW-14 Dr. Subhash Juneja has conducted the post-mortem examination on the dead body of deceased Bal Kishan on 03.09.2000. He

deposed that on dissection, 9 small round pellets were recovered, which were sealed in a vial and handed over to the police with two seals. In his

opinion, the cause of death was due to shock and hemorrhage as a result of gun shot wound with its complication.

PW-2 Bala Devi is the wife of deceased Bal Kishan. She supported the prosecution case in its entirety. She deposed that about 12 mid-night

on 29/30.08.2000, she heard the noise of foot steps and was awakened. She saw that Om Parkash @ Pappu was standing very close to the cot

of Bal Kishan and proclaiming that he had already done away Banarsi and that they should be ready for the same fate. The accused was armed

with a country made pistol. She got up and tried to grapple with the accused, but the accused fired a shot aiming at her husband Bal Kishan, which

hit him in his stomach. Thereafter, she tried to catch hold the accused, but the accused escaped by scaling over the wall. She further deposed that

on raising alarm, her JethRam Kishan and Mai Chand came to their house. She also deposed in respect of removing of injured Bal Kishan to

PGIMS, Rohtak. In her cross-examination, she stated that her husband has taken meals at about 7.00 pm on the fateful night and that Ram Kishan

and Mai Chand had reached their house immediately. She further stated that the accused had kept the pistol on the stomach of her husband, fired

and immediately ran away. She stated that the house of Banarsi is at a distance of one killa from their house.

PW-3 Subhash is son of Fateh Singh, brother of Banarsi and Bal Kishan. He has deposed that his uncle Banarsi was sleeping in his bara,

where he used to tether his cattle. There was a light of electric bulb in the baraof Banarsi and his house is in front of the baraof Banarsi. At about

12/12.15 in the mid-night, he heard noise of fire shot from the baraof Banarsi and on hearing the same, he got up and rushed towards his bara. He

saw that the accused Om Parkash @ Pappu was coming out from the baraof deceased Banarsi and he was armed with a country made pistol. He

further deposed that out of fear, he concealed himself in his house for 15-20 minutes because the accused had already given a threat to all of them

to kill. After 20-25 minutes, he went to the residential house of Banarsi, where he awakened her aunt Smt. Maya. Thereafter, he and Maya both

went to the bara of Banarsi, where they saw that Banarsi was lying dead in the verandah on the ground in a pool of blood. He was having fire shot

injury on his chest. He further deposed that he also heard some noise from the village and on hearing the noise he went to the house of deceased

Bal Kishan, but before he could reach his house, he saw Bal Kishan was being taken to the hospital in the car of Vinod Sharma, as he had also

received fire shot injury. Thereafter, he returned to the bara of his uncle Banarsi. The police also reached there and lifted blood stained earth and

one empty cartridge from the place of occurrence.

PW-1 Mai Chand is resident of the same village as that of the accused and the deceased. He and Ram Kishan, brother of Bal Kisha reached

the house of Bal Kishan and found Smt. Bala Devi, wife of Bal Kishan was crying ''Maar Diya Maar Diya''. On enquiry, she told them that

accused Om Parkash @ Pappu has fired pistol shot at her husband Bal Kishan and thereby injured him.

Learned Counsel for the Appellant has vehemently argued that Ram Kishan, brother of Bal Kishan, who is said to have accompanied PW-1

Mai Chand has not been examined and that PW-3 Subhash is an introduced witness, as his conduct immediately after the occurrence is unnatural,

which renders him as an untruthful witness. His name is not mentioned in the FIR. It is further argued that the statement of PW-2 Bala Devi is that

of an interested witness, whereas PW-1 Mai Chand is not an eye-witness. In the absence of direct evidence, the circumstantial evidence of lifting

of empties from the place of occurrence and its comparison with the pistol allegedly recovered on the basis of disclosure statement of the Appellant

is not sufficient to prove the guilt of the Appellant. The empties are planted and that the disclosure statement (Ex.PY) is not signed by the

Appellant. Therefore, such disclosure statement and consequent recovery of pistol in pursuance of such statement is not admissible in law.

Having heard learned Counsel for the parties, we do not find any merit in the present appeal. The occurrence has stated to be taken place at

about 12.00 mid-night on the intervening night of 29/3.08.2000. PW-1 Mai Chand, a resident of the Village has given statement at about 2.30 am

i.e. within one and a half hour of the occurrence on 30.08.2000. FIR on the basis of statement made by PW-1 Mai Chand has been lodged

promptly thereafter i.e. at about 2.40 am and the special report has been delivered to the Illaqa Magistrate at about 3.45 am. Thus, the

investigations were prompt not only in lodging of FIR, but also in sending special report, which negates the defence version that the prosecution

witnesses are procured and untruthful witnesses.

One empty each has been recovered from the place of occurrences i.e. the houses of the Bal Kishan and Banarsi. The recoveries of such

empties are proved from the testimony of PW-17 SI Karta Ram. Such recoveries of the empties are before the arrest of the accused on

01.09.2000. It was during the custody, the Appellant suffered disclosure statement Ex.PY and in pursuance of such statement, got recovered the

pistol and two live cartridges from the concealed place i.e. the fodder in a kothaat his house. As per report Ex.PAA of Forensic Science

Laboratory, 12 bore fired cartridge cases marked C/1 and C/2 have been found to be fired from country made pistol, recovered in pursuance of

the disclosure statement (Ex.PY). It has been also reported that the pellets in parcel Nos. IV and VIII were found to be lead fired pellets, usually

loaded in shotgun cartridges including .12 bore.

The argument that the disclosure statement Ex.PY is not signed by the Appellant and, therefore, the same is not admissible in evidence, is not

tenable in law. Learned Counsel for the Appellant has vehemently argued that it is the practice that disclosure statements are usually signed. We do

not find any merit in the argument that the disclosure statement Ex.PY is not admissible in evidence. The signature on the disclosure statement is

one of the factors, which are relevant to prove the truthfulness of the disclosure statement, but such signatures are neither conclusive nor necessary

to prove that the accused has suffered a disclosure statement. In the present case, the accused was arrested on 1.09.2000 i.e. two days after the

occurrence. The empties were recovered from the place of occurrence and deposited with the MHC before the arrest of the accused. The

disclosure statement Ex.PY suffered by the accused, stands proved from the testimonies of PW-17 SI Karta Ram, PW-18 Inspector Subhash

Chander and Ram Kishan.

Recovery of the empties from the place of occurrence and the pistol on the basis of disclosure statement, corroborates the eye-witness

testimony of PW-2 Bala Devi, wife of the deceased Bal Kishan. Such testimony is further corroborated by the medical evidence, as the pellets

were recovered from the dead bodies of Bal Kishan and Banarsi. The presence of PW-2 Bala Devi at the house of Bal Kishan is natural, as she is

his wife. Her conduct at the time of occurrence and thereafter is normal. There is nothing to doubt the truthfulness of the testimony of PW-2 Bala

Devi, when such testimony stands corroborated by medical evidence, recovery of pellets and the comparison of empties having fired from the

pistol of the Appellant.

The name of PW-3 Subhash is not mentioned in the FIR, but it is not necessary that name of all the witnesses, present at the place of

occurrence should be disclosed in the FIR. PW-3 Subhash is a resident of the same village and is from the same family as that of the deceased

Banarsi and Bal Kishan. His house is close to the house of Banarsi. Therefore, his presence at the place of occurrence in the middle of night is

proved beyond any reasonable doubt. No dispute regarding his presence could be created during his cross-examination.

Similarly, PW-1 Mai Chand is not an eye-witness, but he has deposed in respect of conduct of the Appellant soon after the occurrence. Such

conduct is relevant u/s 8 of the Evidence Act, 1872. There is no circumstance on record, which creates a doubt on the prosecution story. The

prosecution has proved the commission of crime by the Appellant beyond any reasonable doubt.

Consequently, we do not any merit in the present appeal. The same is dismissed.