@ Hakla Vs. State of
INSC 594 (7 April 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM
REPORTABLE CIRIMINAL APPEAL NO. 1295 OF 2006 With CRIMINAL APPEAL NO. 1296
OF 2006 Dr. ARIJIT PASAYAT, J.
1. These Appeals have a common nexus and are disposed of by a common
judgment. Two appeals were filed before the Punjab and Haryana High Court i.e.
Criminal Appeal No. 118 - DB of 2002 and Criminal Appeal No. 119 -DB of 2002.
One Appeal was filed by Suresh alias Hakla (appellant in Criminal Appeal No. 1295
of 2006) and another appeal was filed by Balwant and Ladh Ram (appellants in
Criminal Appeal No.
1296 of 2006). The High Court dismissed the Criminal Appeal No. 670- DB of
2001 filed by Balwant and Ladh Ram. The High Court dealt with the factual and the
legal position in detail in Criminal Appeal No. 670-DB of 2001 and dismissed
the same. Another Criminal Appeal i.e. No. 560 DB of 2002 was filed by accused
Shamsher Singh. In the connected two appeals the decision was followed.
2. Background facts in a nutshell are as follows:
At about 9.30 A.M. on 15.7.1996 Ramesh (PW-14) accompanied by Mahender
Sarpanch (hereinafter referred to as the 'deceased'), Duli Chand (PW-15), Dev
Raj and Richh Pal were going in a Gypsy being driven by the deceased. As they
had covered a distance of 2 = kms. and reached near the Chitang canal situated
in between villages Salemgarh and Mingnikhera, a Maruti Car having No.
DL-4C/8434 came from the opposite direction. As the car stopped close to the
jeep, accused Shamsher Singh came out and fired a shot from a country made
pistol which hit the wind screen of the Gypsy, due to which deceased Mahender
lost control with the result that the Gypsy skidded and stopped on the road
Thereupon, Shamsher Singh, Ladh Ram, Balwant, Pirthi Punic and 3/4 other
persons came out of the car and pulled Mahender out from the Gypsy. Shamsher
Singh fired another shot hitting Mahender on the left side of the abdomen,
whereas Ladh Ram fired a shot from his gun hitting Mahender below his armpit on
the left side and Balwant fired a shot from the country made pistol hitting
Mahender on his right flank, while Siri Chand fired a shot from his gun hitting
him on his anus. Siri Chand also shouted that Mahender should not be spared
because he had committed the murder of his son Bhoop Singh. Pirthi Punic kept
standing close-by pointing his gun at the witnesses and threatened that he
would shoot them if they intervened. The accused thereafter went through the
pockets of Mahender and took out the license for his revolver, a driving
license, an identity card and a cheque for Rs.50,000/- and some cash and also
picked up the licensed gun of Ramesh, which was lying in the Gypsy, and then
drove away to village Kabrel. In the meantime, a Tata-407 truck came from the
side of village Kabrel in which Subhash son of Tara Chand and Shishpal son of
Dariya Singh were travelling and Mahender was brought to the Civil Hospital,
Hisar, where he was declared dead. In the firing, Duli Chand, father of
Mahender (PW-15) also suffered pellet injuries on his face, forehead and right
arm. A wireless message was sent to the police station, on which SI Dharam
Chand (P-17) reached the Civil Hospital and recorded the statement of Ramesh
(PW-14) at about 1.00 PM and on its basis a formal FIR Ex-FN was registered at
police station Sadar, Hisar at 1.40 PM, within the special report being
delivered to the Ilaqa Magistrate locally at 3.55 PM. The investigating Officer
also took into possession the medico legal report of Duli Chand and after the
post- mortem examination, some pellets recovered from the dead body. Siri
Chand, Prithvi and Shamsher Singh were arrested on 29.07.1996 and on Shamsher's
interrogation, a.12 bore pistol and five empty and two live cartridges were
Likewise, on the disclosure statement made by accused Prithvi, a.16 bore
licensed gun belonging to Siri Chand and two empty and two live cartridges were
recovered. Shamsher Singh also made a disclosure statement and on its basis, a
.12 bore pistol, which had allegedly been used in another murder committed by
him on the same day, was recovered. A case under Section 25 of the Arms Act was
registered against accused Shamsher Singh as well. Accused- Makhan Singh who
though not named in the FIR but found to be involved in the incident, was
arrested on 7.4.1998. On the completion of the investigation, the accused were
charged for offences punishable under Sections 148, 302 read with Sections 149,
307 read with Sections 149 and 395 of the Indian Penal Code, 1860 (in short
'IPC') and as they pleaded not guilty, were brought to trial.
The prosecution in support of its case placed reliance, inter-alia on the
evidence of Dr. Arun (PW-1) reported that no fracture had been seen in the
X-ray conducted by him, Dr. B.L. Bagri (PW-2) of the General Hospital, Hisar,
who had examined Duli Chand at 12.25 PM on 15.7.1996 and had found three
injuries PW-3 Dr. J.S. Bhatia, the Senior Medical Officer, Government Hospital,
Hisar, who had conducted the post-mortem examination and had found five gun
shot injuries on the dead body, the two eye witnesses Ramesh (PW14) and Duli
Chand (PW-15), the last namad being injured, SI Dharam Chand (PW-17), the
Investigating Officer, and Inspector Avtar Singh (PW-21). The statements of the
accused were thereafter recorded under Section 313 Cr.P.C. and they denied the
allegations leveled against them and claimed to be innocent. They also produced
two witnesses in defence, Charanjit Singh DSP (DW-1), who stated Balwant had
not been present at the time of the incident and the first named was entirely
innocent, whereas Balwant was a part of the conspiracy which had led to the
murder; and Sumer Singh (DW-2), who produced the records to depose that
Shamsher accused had been held guilty vide judgment dated 9.4.2001 in another
murder committed on the same day.
The trial Court held that on the facts as brought on the record there was no
delay in the lodging of the FIR; that there was no need to subject the accused
to an identification parade as they had already been identified at the time of
the registration of the FIR; that the medical evidence supported the ocular
version; that the minor discrepancies in the evidence of the, eye witnesses
could be ignored and the statements accepted as being tries and that the
metallic pieces, Exh.P14 and P15 recovered from, the dead body had been matched
with the weapon recovered from Shamsher accused. The Court then went to the
involvement of each of the accused and opined that Balwant and Ladh Ram had
been named in the FIR, whereas Prithvi and Suresh though not named therein had
figured in the supplementary statements of the witnesses and their involvement
and also clear from the statement of Duli Chand, the injured witness, and that
Suresh aforesaid was also the driver of the Maruti Car in question. The Court
also held that Shamsher Singh was the main accused in the case. The Trial Court
accordingly convicted and sentenced the accused as under:
All the accused under Section 302 of the Indian Penal Code
To undergo rigorous imprisonment for life and to pay a fine of Rs,5,000/- and
in default of payment thereof to further undergo rigorous imprisonment months.
All the accused under Section 307 read with Section 149 of the Indian Penal Code
All the accused under Section 148 of the Indian Penal Code
to undergo rigorous imprisonment for five years and to pay a fine of Rs.,1000/-
and in default of i payment thereof to further undergo rigorous imprisonment
for one month. To undergo rigorous imprisonment for one year. All the sentences were, however, ordered to run concurrently. All appeals were dismissed by the High Court.
3. It is to be noted that the trial court primarily relied on the evidence
of PWs. 14 & 15 i.e. Ramesh and Duli Chand. Duli Chand was the father of
the deceased who also suffered injuries on the face, forehead and right arm.
4. In support of the appeal, learned counsel for the appellants submitted
that the evidence of PWs. 14 & 15 does not inspire confidence. The defence
version that occurrence had not taken place around 9.30 A.M. but at 6.30 A.M.
prima facie gets established because of the presence of partial undigested food
and faecal materials. The appellant Balwant and Ladh Ram belong to different
villages and could not have been parties to the alleged animosity to have any
motive. The evidence of PW 15 should not have been relied upon as he cannot see
beyond ten feet. The evidence of Doctor PW 2 established five injuries. There
were five injuries noticed; none of which has been specifically attributed to
Balwant and Ladh Ram.
5. In support of the appeal filed by accused Suresh it is submitted that he
was not named in the FIR and/or in the original statement. Subsequently in the
so called supplementary statement, his name surfaced. The role ascribed to him
is differently described. The High Court noticed that he was the driver of the car.
6. There is also major variance as to whether Suresh participated in pulling
out the deceased, while one witness says he did and other says that he was
7. Learned counsel for the respondent-State on the other hand supported the
judgment and submitted that because of concurrent findings recorded, there was
no scope for interference. So far as the appeal filed by Balwant Singh and Ladh
Ram is concerned they were named in the FIR, the role played by each one of
them has been clearly described by PWs. 14 & 15. Their presence at the spot cannot be doubted. PW 15 is an
injured witness. As a matter of fact there has been recovery of the pellet. The
stand that the evidence of Doctor (PW 2) shows fire arm injuries is not
possible is also not correct. He does not say so. On the contrary, he said that
the possibility of injuries by fire arm cannot be ruled out. In that view of
the matter, the appeal so far as Balwant Singh and Ladh Ram is concerned is
without merit, deserves dismissal. Criminal Appeal No.1296 of 2006 is dismissed.
8. So far as the appeal filed by the accused Suresh is concerned as noted
above he was not named in the FIR and in the original statement. His role in
the incident has been described in different manners by PWs 14 & 15. It is to
be noted that Suresh was not known to the witnesses. In fact it has been
categorically noted by the High Court that PW-15 has accepted that he did not
know him earlier. There was no Test Identification Parade.
9. The High Court has drawn an inference that because he was a driver in
pre-planned murder, the role of such driver is crucial. Such an inferential
conclusion is without any evidence to show participation of accused Suresh.
While PW 15 stated that Suresh was threatening the witnesses who were present,
PW 14 gave a different version. He did not speak a word about the participation
of accused Suresh. Looked at from any angle the conviction of accused Suresh
cannot be maintained and deserves to be set aside.
10. The appeal bearing No. 1295 of 2006 is allowed. The accused be set at
liberty forthwith unless his custody is required in any other case.