Partly allowed

Rajinder Kumar v. State of Haryana

Punjab & Haryana HC12 Dec 2012CRA-D/396/2008

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana allowed this appeal partly, acquitting the appellant of murder and attempted murder charges but upholding conviction for culpable homicide and unlawful possession of a firearm due to negligent handling.

What did the court decide?

Appellant acquitted of Sections 302 and 307 IPC; convicted of Sections 304-II, 308 IPC and Section 25 Arms Act; sentenced to imprisonment for period already undergone.

Rajinder Kumar Vs State of Haryana — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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CRA D- 396-DB OF 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRA D-396-DB OF 2008 Decided on 12.12.2012

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Rajinder Kumar son of Sh. Atma Parkash, r/o H.No. 2065/13, Urban Estate, Bhiwani

...........Appellant

Versus

State of Haryana

............Respondent

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CORAM HON'BLE MR. JUSTICE S.S.SARON

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HON'BLE MR. JUSTICE S.P.BANGARH

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Present Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh, Advocate, for the appellant.

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Mr. H.S.Sran, Additional Advocate General, Haryana for respondent.

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S.P.BANGARH,J

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The appellant has assailed the judgment of conviction dated 29.04.2008 and order of sentence dated 30.04.2008, passed by the learned Additional Sessions Judge, Karnal in Sessions Case No. 02 of 2007, emanating from FIR No.211 dated 15.10.2006, under Sections 302 IPC or in the alternative under Section 304 IPC, 307 IPC or in the alternative under Section 308 IPC and also for the commission of the offence punishable under Section 25 of the Arms Act, 1959, whereby, he was convicted for commission of offences punishable under Sections 302 and 307 IPC and 25 of the Arms Act, 1959 and sentenced to undergo imprisonment for life and to pay fine of `10,000/- and in default of payment

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of fine to further undergo rigorous imprisonment for a period of six months for the commission of offence punishable under Section 302 IPC, to undergo rigorous imprisonment for a period of seven years and to pay fine of 2,000/- and in default of payment of fine to further undergo rigorous imprisonment for two months for the commission of offence punishable under Section 307IPC, and to undergo rigorous imprisonment for five years and to pay fine of 1,000/- and in default of payment of fine to further undergo rigorous imprisonment for one month for commission of offence punishable under Section 25 of the Arms Act, 1959. All the substantive sentences imposed upon the appellant were ordered to run concurrently.

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Case of the prosecution is that on the intervening night of 14/15.10.2006, there was Bhagwati jagran of mata in Newal Commando Complex, Karnal. Ramesh (since deceased) and Rajender appellant were posted as Constables in that complex. They were sharing quarter no.114 in that complex. On 14.10.2006, arms rifles were distributed to the police constables on duty, which was in three shifts. First shift started from 8 pm to midnight, second from midnight to 4 am and third from 4 am to 8 am. Weapons were handed over to the Constables first on duty and they were instructed to hand over those weapons to second shift constables and the second shift constables were instructed to hand over the weapons to the third shift constables. For the shift of 4 am to 8 am on 15.10.2006 for duty at jagran, the carbine of Sandeep was handed over to Constable Azad Singh, carbine of Rajesh was handed over to Constable Vajinder, carbine of Sandeep was handed over to Constable Jasbir, carbine of Neki Ram was handed over to constable Rattan Singh, carbine of Vijay was handed over to Constable Samunder Singh. In each magazine, there were 20 rounds.

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At about 4 am, there was a break of one hour in the performance of jagran. The constables, who were on duty, left for their quarters. Samunder Singh Constable also went to the quarter of Rajender appellant, where latter was also present. Ramesh (since deceased) was lying on the cot in the said quarter. Samunder Singh started watching television in the room and sat on the cot of Ramesh towards his feet. Azad Singh Constable, who was also on duty, came there and he was having a carbine. Samunder Singh Constable was also having carbine, which he kept with him, whereas, Azad Singh handed over his carbine to Rajinder appellant and went away to bath room to refresh him. Thereafter, there was a blast from the carbine of Azad Singh. Ramesh Kumar ( since deceased) received the injuries from the firing of said carbine and succumbed to the injuries on the spot.

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Samunder Singh Constable also received injuries due to firing from the said carbine of Azad Singh. The corpse of Ramesh deceased was removed to Civil Hospital, Karnal. Samunder Singh Constable was also got admitted in Civil Hospital, Karnal. Jodha Ram ASI received telephonic message about this firing incident in Newal Commando Complex. He also received medical memo Ex.P5 regarding Samunder Singh and another memo Ex.P71 regarding death of Ramesh Kumar Constable. Thereupon, he went to Civil Hospital, Karnal, where he moved an application Ex.P72 for seeking opinion of the doctor regarding fitness of Samunder Singh Constable to make statement. Doctor vide opinion Ex.P72/A declared Samunder Singh Constable unfit to make statement.

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Thereafter, he waited for the legal heirs of Ramesh deceased. Then Ranbir Singh came to the Civil Hospital, Karnal and made his statement Ex.P48, whereon, Jodha Ram ASI made his endorsement Ex.P48/1 and sent the same to the police station, where formal FIR Ex.P58

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was recorded. Raj Kumar photographer also came in the hospital and meanwhile, team of Forensic Science Laboratory headed by L.S.Yadav also reached. They inspected the corpse of Ramesh. Underneath the bed sheet Ex.MO1 of the corpse of Ramesh, empty cartridge Ex.MO2 was found by ASI Jodha Ram, which was converted into parcel, that was sealed with the seal bearing impression 'JR'. Jodha Ram ASI later seized that parcel vide memo Ex.P49 (Ex.MO2). Bed sheet Ex.MO1 was also seized by Jodha Ram ASI vide memo Ex.P50, which was signed by the witnesses.

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Subhash Chander Inspector/SHO also came in the hospital, to whom, Jodha Ram ASI disclosed the detailed facts of the case. Thereafter, Jodha Ram, ASI conducted inquest proceedings Ex.P3 on the corpse of Ramesh Chander Constable. Photographer also took the photographs as also prepared video film. Later, Jodha Ram, ASI sent the corpse of Ramesh Constable to the mortuary for autopsy. Doctor handed over to Jodha Ram ASI after autopsy on the corpse of Ramesh Chander Constable, sealed parcel containing the underwear of the deceased. Corpse was handed over to legal heir of Ramesh Chander Constable. Thereafter, Jodha Ram ASI also took into possession bed sheet, blanket, pair of shoes of Samunder Singh, after converting those into separate parcels, which were sealed with his seal bearing impression JR and those parcels were seized vide memos Ex.P51, 52 and Ex.P53, which were signed by the witnesses.

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Subhash Chander, SI, who was posted as Station House Officer of Police Station Kunjpura on 15.10.2006, was informed on telephone that in Newal Commando Complex, there was firing incident, wherein, one person had died and another was injured and both are in Civil Hospital, Karnal. Thereupon, he reached Civil Hospital, Karnal. He also

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inspected the place of incident and prepared rough site plan Ex.P61 in respect, thereof. He also lifted blood stains from four places from the place of incident and those were sealed into four separate parcels with his seal bearing impression 'SC'. Seven empty cartridges from verandah and eleven from the room were lifted by him, which were converted into a parcel, that was sealed with the seal bearing impression 'SC'.

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From the room, twenty two fired bullets were lifted and converted into parcel which was sealed with the seal bearing impression 'SC'. From the verandah near the gate, two carbines with the magazines were lifted. One carbine was empty, which was stated to be that of Constable Azad Singh and another carbine with the loaded magazine, stated to be that of Samunder Singh Constable. Subhash Chander, SI prepared sketch of carbine Ex.P62 of Azad Singh Constable and carbine Ex.P63 of Samunder Singh Constable. Those carbines were sealed into separate parcels by him with his seal bearing impression 'SC'. Those parcels were seized vide memo Ex.P54. One mobile of Nokia belonging to Ramesh deceased was also taken into possession vide memo Ex.P55.

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Subhash Chander SI also recorded the statements of Hari Krishan ASI and Ram Singh ASI and other pesons, who had come present at the spot. Rajender Singh appellant was produced by Line Officer of Commando Complex, Newal before Subhash Chander, SI on 15.10.2006 and he was arrested. Rajinder appellant produced an empty cartridge from his pocket, which was sealed into a parcel by Subhash Chander SI with his seal bearing impression'SC'and that parcel was seized vide memo Ex.P56. Wearing clothes of Rajinder appellant were also converted into a parcel, which was sealed by Subhash Chander SI with his seal bearing impression 'SC'and that parcel was seized vidememo Ex.P57.On return to Police Station,Subhash Chander, SHO deposited the case property with the MHC.

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Vijay Barara, DSP also verified the investigation.

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On 16.10.2006, Subhash Chander, SHO interrogated Rajender appellant in the presence of Ramesh Kumar Constable and Khushi Ram Constable and during interrogation, he suffered disclosure statement Ex.P64 and identified the place of incident. On 17.10.2006, Rajender appellant identified the place of occurrence vide memo Ex.P65, which was signed by Narain Dass, HC and Ramesh Kumar HC. On 19.10.2006, Vijay Barara, DSP again verified the investigation and found Azad Singh Constable innocent. Thereupon, offences under Sections 302 and 307 IPC were deleted and offences under Sections 304 and 308 IPC and 25 of the Arms Act were added. Azad Singh Constable was lateron got discharged.

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On 27.10.2006, on the direction of Subhash Chander, SHO, Sardara Ram, ASI recorded the statements of Samunder Singh Constable/injured. On 28.10.2006, Subhash Chander, SHO got prepared detailed site plan from Veer Shakti Constable. On 28.11.2006, photographer handed over the photographs and compact disc of the place of occurrence to Subhash Chander, SHO, which were seized vide memo Ex.P59.

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Sanction to prosecute the appellant under Section 25 of the Arms Act from the District Magistrate, Karnal was also obtained. Case summary of Samunder Singh injured was taken from PGI. Opinion of Dr. Piyush Sharma was also taken. Sanction Ex.P66 for launching prosecution against the appellant was obtained under Section 197 Cr.P.C from the Department of Home Affairs, Government of Haryana.

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After completion of investigation, Station House Officer of Police Station Kunjpura, instituted police report under Section 173 of the Code of Criminal Procedure ('Cr.P.C' for short) before the learned Illaqa

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Magistrate to the effect that it appears that the appellant has committed offences punishable under Sections 304, 308 IPC and 25 of the Arms Act.

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On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were furnished to the appellant and the case was committed to the Court of Session for trial, which was entrusted to the learned Additional Sessions Judge, Karnal and the latter framed charge under Sections 302, 304, 307, 308 IPC and 25 of the Arms Act against the appellant, whereto, latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.

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After the closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C, wherein, he denied the allegations of prosecution, pleaded innocence and false implication in this case.

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At the trial, prosecution examined Dr.S.K.Khanna as PW1, Dr.Piyush Sharma as PW2, Vir Shakti Constable, Draftsman as PW3, Shish Pal EHC as PW4, Jai Parkash Constable as PW5, Vinod Kumar, Ahlmad as PW6, HC Raj Kumar Photographer as PW7, Rajinder Singh, ASI as PW8, Ajit Singh, Constable as PW9, Sandeep Singh Constable as PW10, Ranbir Singh as PW11, Hari Krishan as PW12, Jagdish Kumar as PW13, Subhash Chander, SI as PW14, Lakshman Singh Yadav, Sr. Scientific Officer as PW15, Samunder Singh, Constable as PW16, Jodha Ram as PW17 and Tara Chand ASI as PW18 and closed the evidence later.

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After the closure of the prosecution evidence, appellant was examined under Section 313 Cr. P.C, wherein, he denied the allegations of prosecution, pleaded innocence and false implications in the case. He gave his own version that carbine in question was never handed over or used by him and that he has been made scape goat in the present case.

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He also stated that the investigation is one sided and tainted and he has nothing to do with the alleged commission of the crime.

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Appellant was called upon to enter in defence, and he examined Dharambir Singh, ASI as DW1, MHC Khushal Pal Commando Lines, Newal as DW2 and Narinder Kumar, Commando, Police Complex Newal as DW3 and closed the defence evidence later.

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After hearing both the sides, learned trial Court vide impugned judgment and order of sentence, convicted and sentenced the appellant, as described in the first paragraph of this judgment. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court, has come up in this appeal with prayer for acceptance, thereof, and for acquittal of the charge framed against him.

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Learned counsel for the appellant and learned Additional Advocate General for the respondent have been heard and record of the learned trial Court perused with their assistance.

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First of all, it is to be seen as to what the prosecution witnesses have deposed against the appellant:-

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PW1 deposed that he alongwith Lalit Kumar, Medical Officer, General Hospital, Karnal conducted autopsy on the corpse of Ramesh and found the following injuries, thereon:-

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9 mm x 1 cm oval lacerated wound over left side of the chest, 8 cm infrolateral to left nipple, edges inverted, blackening around the wound was present. On opening under lying inter coastal muscle lacerated, left lung lacerated, blood in pleural cavity, posterior inter coastal muscle lacerated just below the wound of exit which was lacerated wound with everted margins about 1.2 cm oval situated 10 cm below inferior angle of left scapula,

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9 mm x 1 cm oval lacerated wound 13 cm infromedial to left

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nipple. Margins inverted and blackening around present. On opening of wound track traversing through underlying inter coastal muscle, spleen lacerated peritoneum, abdominal muscles and back muscles lacerated with lacerated wound of exit 1.2 cm x 0.8 cm oval with everted margins 13 cm superior to posterior iliac spine on the right side,

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10 mm x 8 mm oval lacerated wound with inverted margins with blackening around 1 cm supro anterior to left anterior superior iliac spine. On dissection abdominal muscles lacerated. Back muscles lacerated below the wound of exit which is 1.2 cm x 1 cm oval lacerated with everted margins, 12 cm lateral to spine on left side at upper border of buttock,

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1 cm x 9 mm oval lacerated wound with inverted margins with blackening around situated 11 cm medial right anterior superior iliac spine. On opening the track followed through abdominal muscles and iliac bone emerging at 1.2 cm x 1.1 cm lacerated wound with everted margins 8 cm below and 5 cm medial to the wound of exit No.5 and

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1 cm x 8 mm oval lacerated wound with inverted margins with blackening around 4.5 cm supro medial to right anterior superior iliac spine, on opening track traversing through abdominal muscles and fat emerging at 1.2 cm x 1.1 cm oval lacerated wound with everted margins over 8 cm posterior to right anterior superior iliac spine.

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He further deposed that the cause of death, in this case, was shock and haemorrhage as a result of injuries to vital organs as described above, which were ante mortem in nature and sufficient to cause death in normal course of life. He further deposed that he handed over to the police well stitched dead body after autopsy with belongings, sealed parcels and autopsy report. He deposed that probable time between injuries and death

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was variable and between death and autopsy was within 36 hours. He brought the original autopsy report and proved copy, thereof, Ex.P1. He also proved the police request Ex.P2 for getting conducting autopsy on the corpse of Ramesh. He also prepared inquest proceedings Ex.P3.

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PW2 Dr.Piyush Kumar Sharma deposed that he conducted medicolegal examination on Samunder Singh on 15.10.2006 and found the following injuries on his person:-

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Lacerated wound oval shape, 2.5 cm x 1.5 cm on the right leg at lower end just above and anterior to medial malleolus with inverted margins with collar of blackening was present around the wound. Fresh bleeding was present. X-ray was advised;

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Lacerated wound 1.25 x 1.25 cm at lower left leg on lateral side oval shape, 10 cm above lateral malleolus with everted margins. Fresh bleeding was present, x-ray was advised;

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Lacerated wound 1.5 cm x 1.5 cm circular on the left leg on medio posteriorly 7 cm above medial malleolus, margins were inverted, collar of blackening was present around the wound, fresh bleeding was present. X-ray was advised;

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Lacerated wound 1.5 cm x 1.5 cm circular in shape on right leg at lower end 2 cm above line joining foot and leg, 3 cm above and anterior to lateral malleolus, margins everted, fresh bleeding was present, x-ray was advised and

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Lacerated wound 1.25 cm x 1.25 cm on the right leg in middle on anterior side, circular with inverted margins, blackening was present around the wound, X-ray was advised.

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He further deposed that all the injuries were kept under observation and weapon used was fire arm for all the injuries. He further deposed that

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probable duration was within six hours. He also deposed that he handed over a sealed packet with six seals containing clothes of the patient (Samunder Singh) to the police. He proved the copy of MLR Ex.P4. He further deposed that he sent ruqa Ex.P5 to the police about the arrival of the patient in the hospital.

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PW3 deposed that he prepared a site plan Ex.P6 after visiting the spot on the pointing of Subhash Chander, SI.

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PW4 tendered in evidence his affidavit Ex.P7.

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PW5 tendered in evidence his affidavit Ex.P8.

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PW6 proved sanction order Ex.P9, issued by the District Magistrate, Karnal.

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PW7 deposed that he took the photographs Ex.P10 to Ex.P14 on 15.10.2006 of the carbine lying on the spot, Ex.P15 of the cot, Ex.P16 also of cot, Ex.P17 of the stairs and Exs. P18 and P19 of the floor and thereafter, on the same day, he came to Civil Hospital, Karnal, where, too, he took photographs of the corpse of Ramesh deceased Exs.P20 to 25. He also deposed that he took the photographs of Samunder Singh injured Exs.P26 to P28, whose negatives are Exs. P29 to P47. He further deposed that he handed over the negatives and positives to Station House Officer of Police Station Kunjpura.

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PW8 Rajender Singh ASI deposed that on the intervening night of 14/15.10.2006, he was on duty as incharge Commando Complex, Newal and on that day, there was a jagran of Mata in complex and his duty was from 4 am to 8 am on 15.10.2006, at the jagran in the pandal as incharge. He further deposed that at the time of his shift, the carbine of Sandeep was handed over to Constable Azad, carbine of Rajesh was handed over to Constable Vajinder, carbine of Sandeep was handed over to Constable Jasbir, carbine of Neki Ram was handed over to Rattan Singh

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and carbine of Vijay was handed over to Samunder Singh Consatable. He further deposed that in each magazine, there were twenty rounds and instructions were given to them to keep those carbines on safety point (s). He further deposed that at about 4 am, jagran stopped for one hour and Constables, who were on duty, left for their quarter and in quarter No. 114, Rajender, Ramesh and Ashok Kumar Constables were present and he (PW8) also went to his quarter to get himself refreshed and later he came to know that in the quarter of Ramesh, there was firing from the carbine. He further deposed that the employees present there were stating that the carbine was used by Rajender appellant present in the Court. He also came to know that Samunder also received injuries with the fire shot and Ramesh was also injured in this incident, who had already been removed to Civil Hospital, Karnal. He further deposed that Ramesh and Rajender were living in quarter no.114 and were friends.

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PW9 Ajit Singh Constable also deposed that on 14.10.2006, there was jagran of Mata in Commando complex, Newal and on the asking of the Line Officer, the arms rifles were distributed to the police Constables on duty, which was in three shifts starting from 8 pm to 12 pm, 12 pm to 4 am and from 4 am to 8 am. He also deposed that the weapons were handed over to constables on duty and they were instructed to hand over those to the constables of second shift and the constables on second shift were asked to hand over the weapons to the constables of third shift and on 14.06.2006, he issued weapons to the constables, who were deputed on first shift. On 15.10.2006, when he woke up, he came to know that there was firing in quarter no.114, but he did not know who were the occupants of that quarter.

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PW10 Sandeep Kumar Constable deposed that on 14.10.2006, he was posted in Commando Complex Newal and on that day,

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there was a jagran of Mata and he handed over a carbine to Azad Singh Constable with magazine round. He further deposed that he handed over the said weapon at 4 am as his duty was over and then it was duty of Azad Singh. He came to his barrack and one constable told about the firing in the complex, wherein one Constable Ramesh had expired.

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PW11 deposed that Ramesh was his cousin, who was posted as Constable in Newal Commando Complex and on 12.10.2006, Ramesh had come to his house and told that he had a dispute with Rajender for selling the oil for the last 4/5 days and Rajender had threatened him to put to death. He further deposed that Rajender and Ramesh were residing together in the same quarter in the Newal Commando Complex and on 15.10.2006 at about 5:30 pm or 6 am, they received information from Newal Commando Complex that Ramesh received a fire shot and thereupon, they came to hospital and learnt about the death of Ramesh and his statement Ex.P48 was recorded by the police and latter conducted the proceedings on the corpse, as also, conducted investigation.

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PW12 also deposed that Ramesh deceased was his cousin and on 15.10.2006 in the early hours of the day, Bhim Singh received a telephonic call at Bhiwani from Commando Complex that Ramesh received a fire shot and is admitted in Civil Hospital, Karnal and, thereupon, he reached there and joined the investigation of this case.

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PW13 also deposed that he on 15.10.2006, received ruqa Ex.P48 and on the basis, thereof, he recorded formal FIR Ex.P58. He also deposed that Raj Kumar, HC had produced one CD which was taken into possession vide memo Ex.P59 after converting it into a parcel, that was sealed with his seal bearing impression 'SC'. He also tendered in evidence his affidavit Ex.P60.

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PW14 conducted the investigation of this case and deposed

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on the lines of investigation, which has been reproduced in the earlier parts of this judgment.

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PW15 deposed that on 15.10.2006, he visited the scene of crime and examined the same and he gave his report Ex.P67. He also deposed that the sketch of the spot Ex.P68 bears his signatures. He also deposed that on 17.10.2006, 17 sealed parcels were received in the Forensic Science Laboratory through Jai Parkash, HC with seals intact, thereon, and those were examined in the laboratory and the examination report Ex.P69, in this regard, was prepared. He also proved his statement Ex.P46, in which it is stated that carbine in which selector/change lever of carbine was found on A (auto position) when examined at the spot. In his opinion, it had been changed to auto position by handling the same which indicated that at the time of firing, the fire arm was in auto position.

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PW16 Samunder Singh Constable was also present on duty. He deposed that Ramesh deceased and appellant Rajender were residing together in a quarter and on 15.10.2006, he started watching television in a room in Commando Complex, Newal and Ramesh was lying on the cot and Azad Constable came there, who was also on duty. Everyone was given carbine including Azad Singh and the latter handed over his carbine to Rajender and went away to the bath room for refreshing him and, thereafter, he heard a noise of blast and there was smoke in the room. The said sound was of fire shots and he immediately stood up and fell down and received fire shot on his leg and he was medico-legally examined and his statement was recorded.

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PW17 Jodha Ram, ASI also conducted part of the investigation and deposed on the lines of investigation.

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PW18 Tara Chand proved sanction order Ex.P66 issued by the then Principal Secretary to the Government of Haryana, Home

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Department.

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Learned Additional Advocate General, on the basis of evidence led in this case, contended that the case against the appellant has been proved beyond shadow of reasonable doubt and, therefore, he was rightly convicted and sentenced by the learned trial Court vide impugned judgment and order of sentence, which may be upheld and affirmed, as those are not suffering from any illegality or infirmity.

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On the other hand, learned counsel for the appellant contended that the prosecution itself deleted the charge under Section 302 and 307 IPC against the appellant and during investigation, even his alleged accomplice Azad Singh was got discharged, who was kept in column no.2 of the police report. He also contended that the police report under Section 173 Cr. P.C had only been submitted for arraigning the appellant for alleged offences punishable under Sections 304, 308 IPC and 25 of the Arms Act, but the learned trial Court, at its own, came to the conclusion without any basis or evidence that the appellant committed offences punishable under Sections 302 and 307 IPC.

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He also contended that even the offences under Sections 304 and 308 IPC and 25 of the Arms Act have not been proved, as no one stated that appellant fired from the alleged carbine resulting into death of Rajesh and injuries to Samunder Singh. He also contended that the basic document is Ex.P64 of the respondent, which is alleged disclosure statement of the appellant and that has been wrongly used by the learned trial Court for passing conviction upon the appellant for commission of offences punishable under Sections 302 and 307 IPC.

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So far as, the offence under Section 302 IPC is concerned, suffice it to say that no previous enmity between appellant and the deceased and the injured Samunder Singh has been brought out on the

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record. While, on the contrary, deceased and the appellant Rajender were living together in quarter no. 114 in Commando Complex, Newal. If there would have been any quarrel or enmity between them, they would not have lived together. Even, there is no evidence that there was any enmity between the injured witness Samunder Singh and the appellant.

¶112

It is, no doubt true, that PW11 deposed that Ramesh deceased had told him on 12.10.2006 that he had a dispute with Rajender appellant for sale of oil, but that has not been corroborated by any other evidence. If the things would have happened in this manner, deceased himself would have lodged a complaint with the higher police officials. Even, if it would have happened, PW11 would have reported the matter to the higher officials of the appellant and the deceased. This silence on the part of PW11 in not reporting the matter to the higher officials of the deceased and the appellant regarding dispute between them , whereon, he should have acted with alacrity is indeed, intriguing, and must lead to inevitable conclusion that this is not a truthful statement.

¶113

So, the facts remains that the deceased and the appellant had no enmity with each other. Even the appellant and the injured had no enmity. Such, thus, being the situation, appellant had no motive or intention to kill the deceased, as also, he had no motive or intention to make an attempt to murder Samunder Singh by firing through the carbine. Even the prosecution was satisfied that offences under Sections 302 and 307 IPC are not made out against the appellant and that is why, the police report was not submitted by the respondent against appellant for arraigning him for offences punishable under Sections 302 and 307 IPC. Learned trial court framed alternative charge of offences punishable under Sections 302 and 307 IPC. There is no discussion in the impugned judgment regarding offences punishable under Sections 308 and 304 IPC. The main

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charge was for these offences. Before convicting the appellant for commission of the offences punishable under Sections 302 and 307 IPC, it was required of the learned trial Court to come to a definite finding that offences under Sections 304 and 308 IPC are not made out against the appellant and only offences under Sections 302 and 307 IPC are made out, wherefor, appellant was charged alternatively.

¶117

Sanction order Ex.P66 under Section 197 Cr. P.C of the Government of Haryana, Department of Home Affairs would also envisage the alleged commission of offences punishable under Sections 304 and 308 IPC and 25 of the Arms Act. So, the respondent did not want to prosecute the appellant for commission of offences punishable udner Sections 307 and 302 IPC. Even the sanction order of the District Magistrate, Karnal Ex.P9 does not disclose about the commission of offences punishable under Srections 307 and 302 IPC by the appellant.

¶118

So far as, the offence under Section 25 of the Arms Act is concerned, learned counsel for the appellant did not seriously assail the finding of the learned trial Court on this charge. We are also of the view that this offence is made out against the appellant, as he was in possession of the carbine in question. Even, in his disclosure statement Ex.P64, Rajender appellant confessed possession of the carbine. But that was not legally allotted to him. On the contrary, the same was handed over to him by Azad Singh, when he had gone to bath room to refresh himself. It was required of the appellant not to take possession of this carbine, as he was not authorised to keep the same.

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So, when possession of the carbine in view of the disclosure statement Ex.P64 of the appellant is proved that makes him liable for commission of offence punishable under Section 25 of the Arms Act and learned trial Court rightly did so. Disclosure statement Ex.P64 would

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reveal that the appellant checked the safety catch and handle of the carbine and that started all of a sudden. In disclosure statement Ex.P64, he stated that he does not know how the carbine started firing and the carbine fell down from his hands on the ground and that firing hit Ramesh and Samunder Singh Constables. Thereafter, Rajesh succumbed to his injuries received in this firing. No altercation had taken place between the appellant and the injured prior to this firing. Disclosure statement Ex.P64 is the sole evidence regarding this occurrence. This would reveal that appellant had no intention to murder Ramesh or attempt to murder Samunder Singh PW16.

¶123

The appellant had control over the carbine. It was required of him to keep that with full care and caution. He was not required to mishandle it. It was required of him to keep it in safety mode, but the same was found in auto position by PW15, who further deposed that bullets had been fired from that carbine. Evidence of PW15 could not be shattered during cross examination.

¶124

Disclosure statement Ex.P64 is admissible in evidence as it leads to discovery of the facts for first time regarding the manner in which the indicent had taken place, in view of Pulukuri Kottaya and others v. Emperor AIR(34) 1947 Privy Council 67, wherein, it was held that Section 27 of the Act, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to and, thereupon, so much of the information, as relates distinctly to the fact, thereby, discovered may be proved. It was also held that this section

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CRA D- 396-DB OF 2008

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¶127

seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded, thereby, that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was also held that normally the section is brought into operation, when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused.

¶128

In view of aforementioned judgment, disclosure statement Ex.P64 of the appellant must be held admissible in evidence, so far as, it relates to the fact that carbine fell down from the hands of the appellant and started firing shots hitting Ramesh Constable and Samunder Singh Constable and later Ramesh succumbed to injuries. This is the discovery of facts at the instance of the appellant and he must be bound, thereby, as no motive can be ascribed to the police to attribute this discovery of facts to him. So, this disclosure statement Ex.P64 inculpates him in this occurrence.

¶129

It is, no doubt true, that the appellant, in the statement recorded under Section 313 Cr. P.C, took a different stand that he never handed or used the carbine in question and has been made scape goat in the present case, but that defence is perfunctory in nature and has not been corroborated by the evidence of DW1, DW2 and DW3. Even the learned counsel for the appellant failed to point to the relevance of testimonies of DW1, DW2 and DW3 and no benefit can be, thus, given to the appellant of this defence evidence.

¶130

The appellant, doubtlessly, had no intention to kill Constable

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CRA D- 396-DB OF 2008

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¶133

Ramesh deceased and to attempt to kill Samunder Singh Constable, but he knew full well that if the carbine was not handled properly by him could result into firing and hitting persons sitting near him and this had exactly happened in this case. If the carbine had been handled with care by the appellant and he had kept it at safety mode, in that event, it would not have resulted into firing. It had resulted into firing, for it had fallen from his hands, thereby, causing injuries to Ramesh and Samunder Singh. Innocent death of Ramesh and injuries to Samunder Singh injured could be averted, if the carbine had been handled with care by the appellant..

¶134

So, this is a case where appellant did not have intention to kill Ramesh or to attempt to kill Samunder Singh. He being in police department is suposed to have knowledge that if the carbine or some other fire arm weapon is not handled with care that may start firing, which may kill or injure the persons nearby. This happened in this case. Appellant had no intention to kill or attempt to kill Samunder Singh, but he had sufficient knowledge that his negligent act in mis-handling the carbine could, injure or kill some one. That was the only proved accusation against the appellant and only that charge can be held to be proved against him.

¶135

So, he is guilty of commission of offences punishable under Sections 304-II and 308 IPC and 25 of the Arms Act. Learned trial Court fell in grave error by convicting and sentencing the appellant for commission of offences punishable under Sections 302 and 307 IPC. Thus, the appeal ought to be and is, hereby, partly allowed and appellant is acquitted of the charge framed against him for commission of offences punishable under Sections 302 and 307 IPC and he is, however, held guilty for commission of offences punishable under Sections 304-II and 308 IPC and 25 of the Arms Act.As per custody certificate placed on record, the

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appellant had undergone the imprisonment for five years, as on 09.02.2012 So, the ends of justice can be met by sentencing the appellant to the imprisonment already undergone.

¶139

Consequently, the appellant is sentenced to imprisonment for the period already undergone by him for the offences punishable under Sections 304-II and 308 IPC and 25 of the Arms Act. Undergone imprisonment shall run concurrently for all the three offences. Appellant shall pay a fine of <mark>10,000/- for commission of offence punishable under</mark> Section 304-II IPC and in default, thereof, he shall undergo rigorous imprisonment for six months. He shall also pay fine of2,000/- for commission of offence punishable under section 308 IPC and in default, thereof, he shall further undergo imprisonment for two months. He shall also pay fine of ` 1,000/- for the commission of offence punishable under Section 25 of the Arms Act and in default, thereof, he shall undergo imprisonment for one month.

¶140

Resultantly, the appeal is partly allowed, in the terms aforementioned.

¶141

(S.P. BANGARH) (S.S.SARON) JUDGE JUDGE

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December 12, 2012 mamta

Rajinder Kumar v. State of Haryana

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Rajinder Kumar v. State of Haryana

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