Partly allowed

Gopal and Anr. v. State of Haryana

Punjab & Haryana HC16 May 2013CRA-D/601/2008

Case brief

AI extract

What is this about?

This appeal challenged the conviction and sentence of two appellants, Gopal and Amar Pal, for murder and offenses under the Arms Act. The High Court scrutinized the prosecution evidence, finding it consistent and corroborated for one appellant but highly doubtful regarding the co-appellant, leading to a split decision. One appellant was acquitted, while the conviction of the other was upheld.

What did the court decide?

The appeal of Gopal was allowed and he was acquitted of all charges. The appeal of Amar Pal was dismissed, confirming his conviction and sentence.

Gopal and Anr. Vs State of Haryana — Murder and Culpable Homicide | Punjab & Haryana HC (2013)

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Crl.A. No.601-DB of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl.A. No.601-DB of 2008

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DATE OF DECISION: MAY 16, 2013

GOPAL AND ANOTHER

...APPELLANTS

VERSUS

STATE OF HARYANA

...RESPONDENT

CORAM:HON'BLE MR.JUSTICE M.JEYAPAUL. HON'BLE MR.JUSTICE INDERJIT SINGH.

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Whether the judgement should be reported in the digest? Yes

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PRESENT: MR.K.D.S.HOODA, ADVOCATE FOR THE APPELLANTS. MR.KSHITIJ SHARMA, AAG, HARYANA.

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M.JEYAPAUL, J.

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Accused Gopal and Amar Pal were convicted under Section 302/34 IPC and were sentenced to undergo R.I. for life and to pay a fine of 2000/- each and in default of payment of fine, to undergo further R.I. for 2 years. Accused Amar Pal was also convicted under Section 27 of Arms Act and was sentenced to undergo R.I. for a period of 3 years and to pay a fine of 1000/- and in default of payment of fine, to undergo further R.I. for 1 year. Accused Gopal was also convicted under Section 25 of Arms Act and was sentenced to undergo R.I. for a period of 3 years and to pay a fine of `1000/- and in default of payment of fine, to undergo further R.I. for 1 year.

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They have preferred the present appeal aggrieved by the judgement of conviction and sentence passed by the trial Court. It is to be noted that accused Nadan, father of the accused-appellants herein was acquitted of all the charges.

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Crl.A. No.601-DB of 2008

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The brief case of the prosecution is that on 19.11.2006 at about 8.00 a.m., PW3 Jagpal brother of Braham Pal (deceased), his sister Omwati (deceased) and Sonam (deceased), daughter of Braham Pal were constructing a wall in the property partitioned in their favour. At about 9.00 a.m. on the said day, accused Nadan, Amar Pal and Gopal came over there and made an attempt to stop the construction of the wall. At about 12.00 noon, all the accused came over there and abused the complainant party. When the complainant party raised protest, accused Nadan gave his gun to accused Amar Pal to fire shots. Accused Amarpal fired shots with the gun which hit the breast of Omwati. He also fired second shot which hit Sonam on her temporal region. Accused Gopal was having a pistol of .12 bore. He was proclaiming that if anybody intervened, he would not be spared. Accused Amar Pal went on firing and one of the shots hit Braham Pal on his shoulder and as a result of which he also fell down. Accused Nadan was proclaiming that all of them should be finished. Thereafter, all the accused ran away from the scene of occurrence. Braham Pal and Omwati died at the spot. Sonam succumbed to the injuries in Safadarjung Hospital, New Delhi on the third day.

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PW3 Jagpal lodged a complaint with PW20 Inspector Jagdish Parshad who came down to the scene of occurrence on receipt of telephonic message. He recorded the statement Ex.PC of PW3. A formal first information report Ex.PR was registered. PW20 conducted inquest proceedings. He lifted the blood stained earth from the spot under memo Ex.PD. Seven empty cartridges Ex.P1 to Ex.P7 were also recovered from

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Crl.A. No.601-DB of 2008

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the spot under memo Ex.PE.

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PW18 Dr.R.K.Sharma, medico-legally examined injured Sonam, aged 12 years. She was deeply unconscious, responding not to the painful stimuli. There was a bleeding from right ear with multiple swelling over right face and scalp in the temporal region. Multiple pellets were found present in the injured part. He issued MLR Ex.PW after examining Sonam.

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PW18 conducted post mortem examination on the dead body of Braham Pal on 19.11.2006. The following injuries were found on the dead body of Braham Pal:-

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“ 1. Abdominal entrance wound 15 cm below right nipple in anterior axillary line, 3.5 x 4.5 cm. There were three pallets (punctured wound) near the entrance wound one just above and two medial to the wound. Wound margin was inverted, abrasive collar was present around the wound.

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2. Right shoulder showed wound of entrance 9 cm x 6 cm at the tip of right shoulder, blackening and synging and tatooing in an area 2 cm around the entrance wound, underline bone shattered at places, underline tissue charred and burnt at places, entrance wound was surrounded by pallet wound of varrying size.

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3. Multiple wound present around the lips, .5 to .75 cm of varrying size with inverted margins.

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4. Entrance wound 3 cm x 2.5 cm left shoulder back surface with tatooing around the wound in the area 1 cm around with inverted margins, wound was 19 cm above lift nipple, shoulder bone shattered at places.

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5. Entrance wound with inverted margins on left chest, lower part, 14 cm below left nipple with abrasive area, 1 cm x 1 cm in lower part of wound, small punctuated area was present around the wound of size 3 cm x 2 cm.

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6. Wound 8 cm x 5 cm between thigh between testicles and anus with inverted margins with abrasive collar, underlying tissue damaged.

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7. One pallet just above and 2 medial to right nipple with inverted margins with burning and tatooing. ”

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Ribs were shattered at various places. Pallets were removed and handed over to the police. All entry wounds on dissection showed injuries to underlying tissue.

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He also conducted post mortem examination on the dead body of Omwati on the same day. He found multiple pellet marks in right and left side of the chest, neck, face and abdomen. Pleura, Larynx, Trachea, Lungs, Pericardium, Heart and Large Vessels were found punctured. He opined that Braham Pal and Omwati had died due to shock and haemorrhage as a result of fire arm injuries they sustained. Those injuries were certified as ante mortem in nature and sufficient to cause death in the ordinary course.

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PW9 Dr.Ajay Kumar conducted post mortem examination on

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the dead body of Sonam on 22.11.2006, who died in the hospital after three days. He found 4 fire arm projectiles entry wounds on the right side of the head. Al the 4 projectiles had gone into craneal cavity damaging the brain. There was also reddish abrasion over the right side of the tip of the nose. All the four pellets were recovered from the brain. The head injury caused by the firm arm projectiles was found to be the cause of death of Sonam.

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On 1.12.2006, accused Amar Pal on his surrender was arrested by PW20. On the basis of disclosure statement Ex.PG suffered by him a .12 bore single barrel gun Ex.PS was recovered from his residential house.

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Accused Gopal surrendered in the Court on 1.2.2007. PW22 SI Jagdish Singh recorded the disclosure statement Ex.PI suffered by accused Gopal. He got recovered country made pistol Ex.P9 on the basis of disclosure statement given by accused Gopal.

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After obtaining the report from the FSL, the investigation official laid final report as against the accused.

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The accused have come out with a plea under Section 313 Cr.P.C. that they were falsely implicated in this case.

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The trial Court having relied upon the evidence of PW3 and PW4, in the background of the disclosure statements suffered by the accused-appellants and the recovery made thereupon, the FSL report and medical evidence on record, convicted the accused-appellants as stated supra.

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Learned counsel appearing for the accused-appellants would submit that there is virtually no evidence as against accused Gopal to

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convict him for the charges framed as against him. There is inconsistency in the evidence of PW3 and PW4 as regards the role of accused Gopal. He would further submit that accused Amar Pal was falsely implicated. Except the evidence of PW3 and PW4 who are the family members of the deceased, no independent witness was examined. The presence of PW4 Munish was not specifically referred to in the first information report Ex.PL. Therefore, her evidence cannot be relied upon by the Court. The empties were sent for examination on 8.1.2007 and the SBBL gun was sent for examination on 15.1.2007 long after the alleged recovery of the empties from the scene of occurrence. It is his submission that there is every possibility for fabrication of the empties with the gun allegedly recovered from the accused-appellant Amar Pal. Therefore, it is his submission that the appellants are entitled to acquittal.

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We also heard the submissions made by Sh.Kshitij Sharma, AAG, Haryana appearing for the State supporting the verdict of conviction and sentence passed by the trial Court.

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PW3 brother of deceased Braham Pal and PW4 wife of deceased Braham Pal who have spoken in one voice that there was a partition dispute between the complainant party and the accused party. Accused Amar Pal had already filed a civil litigation before the competent Court for partition of the land in dispute. Their testimony also would go to show that the attack was launched by the accused party only when the complainant party raised a construction. In our considered view, the prosecution has established the motive behind the murder.

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PW3 & PW4 have categorically deposed that accused Amar Pal armed with a .12 bore SBBL gun fired at Omwati, Sonam and Braham Pal. The empties had been recovered by the investigating official. A .12 bore SBBL gun was also recovered on the basis of the disclosure statement suffered by accused Amar Pal. The FSL report Ex.PCC would go to establish that the fired cartridge cases marked as Ex.C1 to C7 had been fired from .12 bore SBBL gun recovered at the instance of accused Amar Pal and marked as W/1.

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The medical evidence also would go to establish that all the three victims having suffered fire arm injuries on the vital parts of their body died due to such injuries.

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The occurrence had taken place at 12.00 noon. The family members would have been definitely present in their house. It is true that the presence of PW4 Munish was not specifically referred to in the first information report. PW3 the complainant in this case has referred only the persons who participated in the construction of the wall. It is possible that Munish was not engaged in construction of wall, but was present in the house. At any rate, Munsih also being the family member of the deceased would have been present in the house at the time when the occurrence took place. PW3 Jagpal has completely corroborated his version in the complaint as regards the role of accused Amar Pal. The FSL as well as the medical evidence also lend corroboration to the case of the prosecution.

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The prosecution has come out with eye witness account to establish the their case. There is no reason to doubt their veracity as regards

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the role of accused Amar Pal.

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Amar Pal was arrested on 1.12.2006 and a .12 bore SBBL gun was recovered at his instance on the said day. But the empties were sent for examination on 8.1.2007 and the SBBL gun was sent for examination on 15.1.2007. Just because there is some delay in sending the empties and the SBBL gun to the FSL for expert examination, we cannot jump to a conclusion that the police officials had fabricated the empties. All the articles had been received by the FSL in a cover with seals intact. Therefore, we do not doubt the recovery made in this case.

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We find that the trial Court has rightly convicted and sentenced accused-appellant Amar Pal.

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Accused Gopal is the brother of accused Amar Pal. No active role had been attributed to accused Gopal by any of the witnesses. It is their version that accused Gopal simply stood over there all alone with a pistol in his hand. Had Gopal been present at the scene of occurrence with a weapon, there was no reason for him to stand over there as a mere spectator when his own brother had embarked upon indiscriminate firing.

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In the first information report, PW3 has stated that after the accused Amar Pal had fired and caused injuries to all the three victims Gopal who possessed a pistol proclaimed that anyone who intervened would also be shot at.

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During the course of evidence, PW3 has deposed that accused Gopal who wielded a pistol proclaimed that he would not spare anyone who chose to intervene immediately after accused Amar Pal delivered two fire

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shots, one at Omwati and another at Sonam. In other words, before Braham Pal became victim to the shots delivered by the Amarpal, Gopal had proclaimed so. PW4 would depose that accused Gopal who held a country made pistol proclaimed that no family member of Brahm Pal should escape. 26. We find that PW3 and PW4 have come out with a contradictory role alleged to have been played by accused Gopal.

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True that the investigating official had shown some recovery of weapon from accused Gopal. But we find that the prosecution chose to examine only PW6 Sant Ram, father-in-law of the deceased and father of PW4 Munish to establish the recovery effected. The independent witness cited by the prosecution had not been examined to prove the recovery from accused Gopal. To top it all, it is the case of the prosecution that one Bablu, a young boy was engaged to take out the pistol from the disused well. The said Bablu also was not examined by the prosecution to establish that there was really a recovery from a disused well based on the clue supplied by accused Gopal. We really suspect the role attributed to Gopal in the occurrence. The presence of accused Gopal at the scene of occurrence is found to be highly doubtful. Therefore, we have no hesitation to give benefit of doubt to accused Gopal and acquit him of all the charges framed as against him.

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In view of the above, accused Amar Pal is convicted under Section 302 IPC and Section 27 of Arms Act. The sentence imposed by the trial Court as against accused Amar Pal for offence under Section 302 read with Section 34 IPC shall be treated as sentence for the offence under

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Section 302 IPC. The sentence imposed by the trial Court for offence under Section 27 of the Arms Act is confirmed. Consequently, the appeal qua accused Amar Pal stands dismissed.

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Accused Gopal is found not guilty of the offences under Section 302/34 IPC and Section 25 of the Arms Act. Consequently, the appeal qua accused Gopal stands allowed. The bail bond executed by him shall stand discharged.

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(M.JEYAPAUL) JUDGE

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May 16, 2013 Gulati

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( INDERJIT SINGH ) JUDGE

Gopal and Anr. v. State of Haryana

Case brief

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Gopal and Anr. v. State of Haryana

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