L.N. Mittal, J.@mdashBy this common judgment, we are disposing of Crl. Appeal No. 631-DB of 2007 preferred by Gurmit @ Nitu against his conviction and sentence ordered by learned Additional Sessions Judge, Rohtak vide judgment dated 12.03.2007 and order dated 13.03.2007 and also Crl. Revn. No. 239 of 2008 preferred by Mangal Sain son of complainant Chaudhary Ram (since deceased) against the same judgment and order thereby assailing the acquittal of appellant''s co-accused Gurnam Singh @ Chinu and Manjeet Singh @ Sonu and seeking death sentence for all the three accused. Vide impugned judgment dated 12.03.2007, accused Gurnam Singh @ Chinu and Manjeet Singh @ Sonu were acquitted, whereas Gurmit Singh @ Nitu stands convicted u/s 302 read with Section 34 of the Indian Penal Code (in short - the IPC) and u/s 25 of the Indian Arms Act and vide order dated 13.03.2007, convict Gurmit Singh @ Nitu has been sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/- and in default thereof, to undergo further rigorous imprisonment for one year for offence u/s 302/34 IPC and also sentenced to undergo rigorous imprisonment for two years for offence u/s 25 of the Arms Act. Both the sentences were ordered to run concurrently. State also filed appeal along with application bearing Crl. Misc. No. 418-MA of 2007 for leave to appeal against acquittal of Gurnam Singh @ Chinu and same was dismissed vide order dated 28.09.2007. Petition for special leave to appeal against the said order is said to be pending in the Hon''ble Apex Court.
2. Prosecution case in brief is as under:
Chaudhary Ram, resident of House No. 578/25, Patel Nagar, Rohtak made statement Ex.P-43 on 20.06.2003 at 06:00 A.M. to ASI Dalel Singh, Incharge Police Post Gandhi Camp, Rohtak under Police Station Civil Lines, Rohtak while ASI Dalel Singh was present near Shiv Mandir, Rohtak for patrolling. It was stated by Chaudhary Ram in statement Ex.P-43 that Titu @ Rajinder aged 35 years (since deceased) was his son. He was Property Dealer. He had dealings with Gurnam Singh @ Chinu (appellant''s brother and co-accused since acquitted), resident of House No. 686/25, Patel Nagar, Rohtak. On the night between 19/20.06.2003, at about 01:00 A.M., Chaudhary Ram complainant was present at the house of his son-in-law Bansi Lal in Patel Nagar, Rohtak and was talking to him. They heard sound of firing. Chaudhary Ram and Bansi Lal came out at the gate and saw that Gurnam Singh @ Chinu was sitting on the bed and the appellant Gurmit Singh @ Nitu was firing at Titu @ Rajinder. Joginder @ Juggi tried to save the deceased, but the appellant Gurmit Singh @ Nitu fired a shot at Joginder as well. The said shot grazed past his left arm. Chaudhary Ram and Bansi Lal made noise and rushed to save the deceased. Thereupon, the appellant and his brother Gurnam Singh @ Chinu left the spot along with pistol. The complainant and Bansi Lal attended to Titu @ Rajinder, but found him dead. He had suffered 5-6 bullet injuries in the stomach, chest, head and face. The appellant and Gurnam Singh @ Chinu murdered Titu @ Rajinder after calling him to their house on account of financial dealings. ASI Dalel Singh made his endorsement Ex.P-43/A on statement Ex.P-43 and sent it to the Police Station, where FIR Ex.P-44 was registered on its basis.
3. ASI Dalel Singh, along with other police officials, went to the spot and got it photographed and prepared inquest report Ex.P-36 of the deceased Titu @ Rajinder lying on sofa set. A blanket was lying halfcovered on the dead body, which had fire shot injuries with holes in blanket as well. Blood was also there near the dead body. A pistol of .30 bore was found in the dub of the deceased. One magazine in the pistol and another magazine in the dub were also found with 15 live cartridges in all. A wallet with cash amount of Rs. 430/-, a mobile phone and driving license of the deceased were also seized from the body vide memo Ex.P-5. The blanket was taken into possession vide memo Ex.P-4. Six shells of cartridges lying on bed and four lead bullets lying near the dead body were seized in sealed parcels vide memo Ex.P-2. Blood lying on the floor was sealed in parcel and seized vide memo Ex.P-3. Rough site plan Ex.P-47 of the spot was prepared. Statements of Bansi Lal, Joginder, Amit and Vijay Kumar were recorded. The dead body was sent for post-mortem examination along with request Ex.P-33.
4. Before conducting post-mortem examination, X-ray examination of the dead body was conducted by Dr. Ravinder Singh Gill. Two radio opaque foreign bodies of metallic density of shape and size of bullet in the cranial cavity and one such body outside the cranial cavity in soft tissue were found on X-ray examination of skull and one similar foreign body was found in soft tissue in right side chest on X-ray examination of chest. Also one such foreign body was seen in abdominal cavity at the level of L1/L2 vertebrae and another such body was seen outside the abdomen in soft tissue of abdominal wall at the level of L4/L5 vertebrae, on X-ray examination of abdomen. Dr. S.P.S.Bhatia conducted post-mortem examination and found the following injuries:
(i) An incised wound 3 cm x 1 cm lung deep obliquely placed on the right side of front of chest.
(ii) An incised wound 3 cm x 1 cm lung deep obliquely placed on left side of front of chest.
(iii) Right side of chest, back having three wounds of entry, one cm. round whereas left side of chest and back two wounds of exit were present.
(iv) Skull was having three wounds of entry of bullets, one at right ear, second at three cm. above the first and third 2 cm. In front of the left ear.
(v) Abdomen was having 1 wound of entry just lateral side and back right side and one wound of entry on left side of back of abdomen.
5. On exploration of skull, two large size bullets and one small size bullet were recovered. On examination of thorax, one large size bullet was removed from the back of right lung. On exploration of abdomen, two bullets of small size (one from inside the body and the other from wall of left side abdomen) were removed. Cause of death was opined to be fire arm/bullet injuries, which were ante-mortem and sufficient to cause death in ordinary course of nature, on account of severe haemorrhage and shock. Probable duration between injuries and death was few minutes. Sealed parcels of clothes of the deceased and all the six bullets removed from the dead body given by the doctor were seized by the police vide memo Ex.P- 48.
6. Dr. Ranbir Singh medico-legally examined Joginder @ Juggi on police request Ex.P-10 and found following injury:
4 x 5 cm long oblique blackening was present on left arm anterior aspect, 8 cm above from the elbow joint. There was no burning on the skin.
7. There was also 6 cm long blackening on left sleeve of shirt of the injured along with black lines on anterior aspect. The injury was caused by fire arm. Sealed parcel of shirt of the injured given by the doctor was seized by the police vide memo Ex.P-49. Statements of witnesses were recorded during investigation. Appellant and Gurnam Singh had been named in the FIR whereas their another brother Manjeet Singh @ Sonu was subsequently named as conspirator. All the three were residents of the same House No. 686/25, Patel Nagar, Rohtak. On completion of investigation, all the three accused were sent for trial.
8. Charge u/s 120B against all the three accused, u/s 302/34 IPC against Gurmit Singh @ Nitu and Gurnam Singh @ Cheenu, u/s 307 IPC against Gurmit Singh @ Nitu and u/s 307/34 IPC against Gurnam Singh @ Chinu (for causing fire arm injury to Joginder) and u/s 25(1-B) of the Arms Act against both Gurmeet Singh and Gurnam Singh, was framed. The accused pleaded not guilty and claimed trial.
9. In support of its case, the prosecution examined as many as 23 witnesses. Dr. Ravinder Singh Gill (PW-1) stated about X-ray examination of the dead body of Titu @ Rajinder. Bansi Lal (PW-2) and his son Anil Kumar (PW-3) broadly stated according to the prosecution version that both Gurmit Singh @ Nitu and his brother Gurnam Singh @ Chinu had fired shots at Titu @ Rajinder resulting in his death. House of the accused is in front of the house of these two witnesses. Bansi Lal also stated that motive for the murder was money transaction. Bansi Lal also stated about seizure of various articles made from the spot. Ram Bhagat (PW-4) is Reader to District Magistrate, Rohtak. He proved sanction orders Ex.P-8 and Ex.P-9 issued by District Magistrate, Rohtak for prosecution of Gurmit Singh @ Nitu and Gurnam Singh @ Chinu under the Arms Act. Dr. Ranbir Singh (PW-5) stated about medico-legal examination of Joginder Singh @ Juggi. Constable Suraj Bhan (PW-6) and Constable Subhash (PW-7) stated that they got conducted post-mortem examination on the dead body of Titu @ Rajinder. They tendered their affidavits Ex.P-14 and Ex.P-15 in evidence. Constable Maman Singh (PW-8) stated that he had taken sealed parcels of the recoveries made from the dead body as mentioned above and a revolver etc. and deposited the same in Forensic Science Laboratory (FSL), Madhuban without any tampering. He also tendered his affidavit Ex.P-16 in evidence. HC Kulbir Singh (PW-9) also deposited the articles seized from the spot including shirt of injured Joginder and clothes of the deceased in FSL Madhuban without any tampering. He also tendered his affidavit Ex.P-17 in evidence. ASI Jagram (PW-10) stated that the case property remained untampered with in his custody in Malkhana as Moharrir Head Constable. He also tendered his affidavit Ex.P-18 in evidence. Constable Surender Singh (PW-11) stated that he had taken photographs of the dead body. He proved the same. Dr. S.P.S.Bhatia (PW-12) stated about post-mortem examination of the deceased. Constable Sumit Kumar (PW-13) stated he prepared scaled site plan Ex.P-40 after inspecting the spot. Narender Singh, Clerk (PW-14) stated from register of Arms License that non-prohibited bore license of double barrel gun and pistol was issued to the deceased Rajinder Kumar son of Chaudhary Ram on 13.06.2000 by the District Magistrate vide entry Ex.P-41. Retired Inspector Ram Parkash (PW-15) stated that he prepared challan i.e. report u/s 173 of the Code of Criminal Procedure (in short - the Cr.P.C.) in the present case on completion of investigation, while he was posted as Station House Officer of Police Station Civil Lines, Rohtak. Constable Angrej Singh (PW-16) stated that he delivered special reports in the case to the concerned officers. He tendered his affidavit Ex.P-42 in evidence. ASI Virender Singh (PW- 17) stated that he recorded formal FIR Ex.P-44 on receipt of statement Ex.P-43 with endorsement Ex.P-43/A on it. Inspector Chander Bhan (PW- 18) stated that he partly investigated the case and recorded statement of Shanti Devi (mother of the deceased) and added offence u/s 120-B IPC and arrayed Manjeet Singh as accused along with Gurmit and Gurnam. He also recorded statement of Amit. He also arrested accused Gurnam Singh @ Chinu on 11.07.2003 from the Court, where he had surrendered. Joginder @ Juggi was also added as accused by Inspector Chander Bhan, but later on he was not sent for trial. ASI Dalel Singh (PW- 19) stated about investigation of the case conducted by him. Krishan Lal (PW-20) stated that he and one Rajender son of Risal Singh were joined by the police on 02.07.2003. Gurmit Singh @ Nitu made disclosure statement Ex.P-50 and in pursuance thereof, got recovered a revolver vide memo Ex.P-51. The accused had also disclosed that he had rubbed the pin of the revolver with reti (iron file) and threw the file in canal. Sketch Ex.P-52 of the revolver was prepared. Inspector Jai Parkash (PW-21) stated that on 01.07.2003, he had arrested Gurmit Singh @ Nitu, who made disclosure statement Ex.P-54 regarding concealment of revolver at Ludhiana, but on 02.07.2003, he made another disclosure statement Ex.P-50 regarding concealment of revolver in an almirah in his shop at Labour Chowk, Rohtak and in pursuance thereof, he got recovered a revolver from the stated place vide memo Ex.P-51. HC Som Nath (PW-22) stated that photocopy of Arms License Ex.P-41 of the deceased given by Chaudhary Ram complainant to ASI Ram Chander was seized in his presence vide memo Ex.P-56. Accused Gurmit Singh @ Nitu also made confessional-cum-disclosure statement Ex.P-57 and got recovered a reti vide memo Ex.P-59. ASI Ram Chander (PW-23) also made similar statement. He also recorded statement of some other witnesses during investigation. He also arrested accused Manjeet Singh @ Sonu on 03.04.2004. Chaudhary Ram complainant was murdered on 21.10.2003 (four months after the present occurrence) and FIR Ex.P-62 was registered about the same. Chaudhary Ram, therefore, could not be examined as prosecution witness in the case. Joginder PW was given up by the prosecution as won over by the accused and later on, Joginder appeared as DW-3 in defence evidence.
10. The accused in their statements u/s 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. Gurmit and Gurnam alleged that the deceased was their neighbour and they had good relations with him. The deceased was involved in number of criminal cases and had many enemies in and around Rohtak. On the night intervening 19/20.06.2003, the deceased telephoned Gurmit at about midnight that he wanted to meet him at his house. After two minutes, the deceased reached their house along with Joginder @ Juggi. When the deceased and Joginder entered the house of the accused, 3-4 persons with muffled faces and armed with pistols and knives attacked the deceased. Joginder tried to catch hold of the assailants, who also fired at him. Titu @ Rajinder on suffering injuries fell down on the chair lying in the room. The assailants managed to escape. Gurmit immediately went to Police Post Gandhi Camp, Rohtak to report the incident, but the police made him to sit there. Gurnam Singh was living in his separate house adjacent to the house of Gurmit Singh. Gurnam Singh also reached the spot after the occurrence. Manjeet Singh @ Sonu was away to Ludhiana for check-up in a hospital. Gurmit Singh also informed Chaudhary Ram and Bansi Lal, father and brother-in-law respectively of the deceased at their respective houses. House of Bansi Lal is situated opposite the house of Gurmit Singh and their main gates are opposite each other. Manjeet Singh @ Sonu alleged that he has nothing to do with the present case. He was also not named in the FIR and he has been falsely implicated later on.
11. In defence, the accused examined three witnesses. R. S. Saini (DW-1) is from Bharat Sanchar Nigam Limited, Rohtak. He stated that telephone No. 258397 stood installed in the name of Bansi Lal at House No. 685-B/25, Patel Nagar, Rohtak, but the witness could not say if the said telephone was in order or not on 20.06.2003. He also stated that telephone No. 250830 is in the name of Gurnam Singh of Patel Nagar, Rohtak, but he could not say if the said telephone was in working order or not on 19.06.2003 and 20.06.2003. Rohtas Singh, Head Constable (DW-2) stated from FIR registers of Police Station Civil Lines, Rohtak that following six FIRs stood registered against the deceased:
Sr.No. FIR No./Date Under Sections Police Station Decision
1. 70/6.2.1991 25 of the Arms Civil Lines, Acquitted
Act Rohtak
2. 177/27.3.2002 452/307/325/34 Civil Lines, Acquitted
IPC & 25 Arms Rohtak
Act
3. 542/7.10.2002 25 of the Arms Civil Lines, Proceedings
Act Rohtak abated on
account of death.
4. 613/22.10.2000 13 of the Civil Lines, Pending in
Gambling Rohtak the Court.
5. 103/5.3.1992 302/34 IPC Civil Lines, Acquitted
Rohtak
6. 153/21.4.1992 302 IPC Civil Lines, Acquitted
Rohtak
12. Attested copies of the said FIRs were produced as Exs.D-6 to D-11. He also stated that FIR No. 558 dated 01.10.2000 of Police Station Civil Lines, Rohtak (Ex.D-12) was registered against Vijay son of PW Bansi Lal under Sections 302/34 IPC on the statement of Dhan Bahadur, but Vijay stood acquitted in the said case vide judgment dated 05.01.2001. FIR No. 536 dated 26.10.2003 (Ex.D-13) was registered u/s 285 IPC against Anil Kumar-PW son of Bansi Lal-PW and the said case was pending. Joginder (DW-3) broadly stated according to the defence version. He is the witness, who was given up by the prosecution as won over by the accused.
13. We have heard learned Counsel for the parties at considerable length and also examined the case file with their assistance. Firstly, taking up Crl. Appeal No. 631-DB of 2007 instituted by Gurmit @ Nitu. The prosecution has led cogent and credible evidence to prove the guilt of the appellant beyond reasonable doubt. The appellant was named in the FIR to have fired at the deceased. The FIR was lodged very promptly. FIR is thus a very valuable piece of evidence. The prosecution has also examined two eye-witnesses namely Bansi Lal (PW-2) and his son Anil Kumar (PW-3). Even the appellant has admitted in his statement u/s 313 Cr.P.C. that the house of these witnesses is situated opposite his (appellant''s) house and main gates of both the houses are in front of each other. In these circumstances, Bansi Lal and Anil Kumar were natural eye-witnesses of the occurrence. Since many shots were fired, they were obviously attracted by the sound thereof and they witnessed the occurrence. They have categorically stated that the appellant was firing shots at the deceased, who died at the spot. The statements of both these witnesses, although relatives of the deceased, are very credible and inspire confidence since their presence at the spot was very natural. Moreover, they being close relatives of the deceased, would not like the real culprits to go scot-free and would not implicate the appellant falsely without any rhyme or reason. The FIR was lodged by father of the deceased and he would also not have liked to let the real murderers of his son escape and would not have implicated the appellant falsely. Prosecution evidence is thus credible and trust-worthy.
14. In addition to the aforesaid, it is also proved from the prosecution evidence, as also admitted by the appellant u/s 313 Cr.P.C., that the occurrence took place in his house. The deceased was lying dead in sofa chair inside the house of the appellant. This fact also proves complicity of the appellant. The defence version that some strangers with muffled faces came and murdered the deceased at the house of the appellant cannot be accepted. The occurrence took place at about 01:00 A.M. and the unknown assailants could not have known that the deceased would be at the house of the appellant at that odd hour of the night. Learned Counsel for the appellant contended that the assailants might be keeping a track of the movements of the deceased and murdered him when he reached the house of the appellant. The contention is devoid of any substance because if the assailants had been trailing or chasing the deceased, they would have way-laid him and murdered him on the way and would not have waited for the deceased to reach the house of the appellant in front of the house of brother-in-law of the deceased, where the deceased could have received some help to save himself. Statement of Joginder (DW-3) in support of the aforesaid defence version is completely unworthy of credence. He had signed the seizure memos Exs.P-2 to P-5 regarding seizure of different articles from the spot. In cross-examination, he admitted his signatures on the said memos, but stated that these papers were blank. He also stated that he did not see six empty cartridges or four bullets at the spot. He deposed that atleast 12-13 shots were fired, but he did not notice any empties there. Thus, it appears that he entered the witness-box with determination to deny everything in support of the prosecution version. Moreover, Chaudhary Ram informant (father of the deceased) was also murdered on 21.10.2003 i.e. four months after the present occurrence. Joginder admitted that he is one of the accused in the murder case of Chaudhary Ram. Joginder also stated that Shanti, wife of Chaudhary Ram, (mother of the deceased in the present case) was also subsequently murdered. (She was murdered on 07.03.2005). Joginder admitted that he had also been arrayed as accused in the said case as conspirator and is facing trial. Joginder also admitted that on 12.02.2004, he got a case registered u/s 307 IPC against Anil Kumar (PW-3), his brother Vijay and their father Bansi Lal (PW-2) and also against Vinod son-in-law of Bansi Lal and one Raju. Subsequently, Joginder was also alleged to be conspirator in the instant case by the complainant party, having brought the deceased to the house of the appellant for being murdered. Kuldeep Singh (father of the appellant) is co-accused with Joginder in murder cases of Chaudhary Ram and Shanti, as admitted by Joginder. For all these reasons, Joginder had strong motive to depose against the prosecution and in favour of the accused persons. Except the statement of Joginder, there is no other evidence to substantiate the defence version. On the other hand, evidence of the prosecution is very reliable.
15. The prosecution has also led evidence about recovery of the weapon of offence from the appellant in pursuance of his disclosure statement. Krishan Lal (PW-20) and Inspector Jai Parkash (PW-21) have stated about recovery of revolver at the instance of the appellant in pursuance of his disclosure statement on 02.07.2003. The said recovery cannot be said to be planted in view of FSL reports. The said revolver was reported to be a fire arm and its firing mechanism was found in working order. Its firing pin was found tampered with and therefore, no opinion could be given regarding the six cartridge cases seized from the spot as to whether the same had been fired from this revolver or not. However, out of four bullets seized from the spot, three crime bullets had been fired from the aforesaid revolver and not from any other fire arm even of the same make and calibre/bore. Similarly, out of three bullets of .455" taken out from the body of the deceased (other three bullets taken out from the body were of .32"), two bullets had been fired from .455" revolver recovered from the appellant and not from any other fire arm even of the same make and calibre/bore. No opinion could be given regarding the remaining one bullet seized from the spot and another bullet of .455" recovered from the dead body because the same were badly deformed and mutilated. The report of FSL that three crime bullets seized from the spot and two crime bullets taken out of the body of the deceased had been fired from the revolver recovered at the instance of the appellant clinches the prosecution case regarding recovery of the revolver from the appellant as well as murder of the deceased by the appellant.
16. Motive has also been proved by the prosecution. The deceased was murdered on account of financial dealings between the deceased and the accused. This fact was mentioned in the FIR itself, which was lodged promptly, and has also been stated by Bansi Lal PW-2.
17. It is thus manifest that the prosecution has been successful in bringing home the charge against the appellant beyond reasonable doubt. Learned Counsel for the appellant contended that the deceased was murdered by unknown assailants with muffled faces at the house of the appellant. However, this version cannot be accepted for the reasons recorded herein before. It was also contended that Bansi Lal (PW-2), Anil Kumar (PW-3) and Chaudhary Ram informant were not eye-witnesses. The contention cannot be accepted. Presence of Bansi Lal and Anil Kumar was very natural as already noticed herein above. Presence of Chaudhary Ram also cannot be doubted because he had gone to the house of his son-in-law Bansi Lal. He also lodged FIR promptly as eye-witness. Moreover, Chaudhary Ram has not stepped into the witness-box because he had since been murdered, whereas Bansi Lal and Anil Kumar are very natural eyewitnesses of the occurrence. Learned Counsel for the appellant also submitted that the appellant and his brother Gurnam Singh and Joginder informed Chaudhary Ram and Bansi Lal etc. The contention is not substantiated by any material on record. On the other hand, Bansi Lal and Anil Kumar living in the house opposite the house of the appellant, where the occurrence took place, would naturally come out from their house on hearing sound of so many fire arm shots.
18. Learned Counsel for the appellant also argued that there has been delay in lodging the FIR. This argument also cannot be accepted. The occurrence took place at about 01:00 A.M. Statement of Chaudhary Ram along with police proceedings thereon concluded at 06:00 A.M. and the FIR was registered immediately thereafter. Special report also reached the Magistrate at 08:00 A.M. Thus, there has been no unnecessary delay in lodging the FIR. Moreover, involvement of the appellant is not in doubt in any manner and the benefit of alleged delay has already been extended to accused Gurnam Singh.
19. Learned Counsel for the appellant submitted that the appellant surrendered in Court on 28.06.2003 and immediately gave his version in the surrender application. However, the said version came eight days after the occurrence. Moreover, the appellant has not stepped into the witness-box to substantiate the said version and to afford opportunity of cross-examination to the prosecution to test the veracity of the said version. Learned Counsel for the appellant also pointed out that Chaudhary Ram had moved application Ex.D-4 (also Ex.P-45) dated 06.07.2003 suspecting involvement of some other persons also. However, it is not explained as to how this circumstance helps the appellant. Even in the said application, Chaudhary Ram reiterated that his son was murdered by the appellant and others. He simply added that some other persons might also be involved with them and only the appellant could disclose the same. This application rather goes against the appellant and says nothing in his favour. Learned Counsel for the appellant also contended that Chaudhary Ram made statement Ex.D-5 on 07.07.2003 during investigation making improvement in his version as stated in the FIR. However, statement Ex.D- 5 could be used only to contradict or corroborate the statement of Chaudhary Ram if he had appeared as witness. Since Chaudhary Ram has not appeared as witness, statement Ex.D-5 cannot be used as evidence. Moreover, the alleged improvement in statement Ex.D-5 related to the role of Gurnam Singh @ Chinu, who has however been acquitted by the trial court. The appellant cannot derive any advantage on the basis of alleged improvement relating to role of Gurnam Singh @ Chinu. No improvement was made regarding the role of the appellant.
20. Learned Counsel for the appellant also contended that Joginder (DW-3) being injured eye-witness is a reliable witness. The argument cannot be accepted because statement of Joginder (DW-3) is completely unreliable for the reasons already recorded herein above. Learned Counsel for the appellant also submitted that acquittal of Gurnam Singh has been upheld by this Court as Crl. Misc. No. 418-MA of 2007 filed by State for grant of leave to appeal against acquittal of Gurnam Singh @ Chinu was dismissed by this Court vide order dated 28.09.2007. However, this circumstance has no bearing on culpability of the appellant. Moreover, petition for special leave to appeal against aforesaid order dated 28.09.2007 assailing acquittal of Gurnam Singh @ Chinu is said to be still pending in Hon''ble Apex Court.
21. Learned Counsel for the appellant next contended that according to FSL report, .32 bore bullets were also used in the crime, but there is no evidence regarding use of .32 bore revolver. It is manifest from the recovery of .32 bore bullets from the dead body that .32 bore revolver was also used in the crime and there was possibly some other companion of the appellant in committing the crime, but it does not absolve the appellant of his crime because it is established that he fired bullets from his .455 bore revolver and three bullets of the said bore were recovered from the dead body, out of which two had been fired from the revolver of the appellant and not from any other revolver and the third stood deformed and mutilated and therefore, opinion regarding the same could not be given. It is thus manifest that the appellant did commit murder of the deceased, although the appellant possibly might be having some other companion as well. Learned Counsel for the appellant next argued that according to the prosecution version, even .30 bore pistol of the deceased himself had also been used in the crime, but FSL report rules out the same. This argument, although apparently attractive, is also without merit because the said pistol of the deceased was alleged to have been used by Gurnam Singh @ Chinu, who already stands acquitted. This argument does not effect the culpability of the appellant in any manner. The fact that Bansi Lal (PW-2) could not tell distinction between revolver and pistol is also of no consequence because Bansi Lal is not ballistic or fire arm expert. Learned Counsel for the appellant contended that it cannot be said whether .455 bore revolver was used by the appellant or by Gurnam. The contention has no merit because it is consistent stand of prosecution that the said revolver was used by the appellant and the same was even recovered at his instance. Learned Counsel for the appellant also contended that the deceased himself was involved in many cases and therefore, had many enemies, who could have murdered him. Reference in this regard was made to the testimony of HC Rohtas Singh (DW-2). The contention has no merit because out of the six cases against the deceased, he already stood acquitted in four cases, whereas another case under the Arms Act abated on account of his death and a case under the Gambling Act was still pending. Moreover, the two murder cases that had been registered against the deceased, were of March and April, 1992 and he was acquitted in both of them. The said cases were 11 years prior to the present occurrence. Consequently, it cannot be said that the deceased was murdered on account of enmity due to cases that had been registered against the deceased. In any event, there is direct ocular evidence, besides other evidence, to prove the guilt of the appellant.
22. Learned Counsel for the appellant also assailed the statements of Krishan Lal (PW-20) and Inspector Jai Parkash (PW-21) regarding recovery of revolver at the instance of the appellant in pursuance of his disclosure statement. It was also submitted that the appellant in his surrender application had mentioned that no disclosure statement was to be made by him, but soon after police remand of the appellant, his alleged disclosure statement was recorded. It was also pointed out that Krishan Lal (PW-20) is father-in-law of the deceased, whereas Rajender, another witness of disclosure statement of recovery, although not examined during trial, is a close friend of the deceased. However, recovery of revolver at the instance of appellant cannot be doubted on account of these circumstances particularly because the said revolver has been connected with the crime bullets by FSL report as already discussed herein above. In support of this argument, learned Counsel for the appellant relied on Sattatiya alias Satish Rajanna Kartalla v. State of Maharashtra reported as (2008) 1 Scc (Cri) 733, Gambhir v. State of Maharashtra reported as 1982 Scc (Cri.) 431, Vijender v. State of Delhi reported as 1997 (2) RCR 256, and Inspector of Police, Tamil Nadu v. Bala Prasanna reported as (2008) 3 S C C 959. However, all these cases were based on circumstantial evidence. Reliance was also placed on State of Haryana v. Anand reported as 2006 (1) RCR (Cri) 298. In that case, however, the accused was acquitted in murder case and therefore, he was also acquitted in case under the Arms Act relating to recovery of five live cartridges in pursuance of his disclosure statement. Obviously, this judgment has no applicability to the instant case. In Raosaheb Balu Killedar v. State of Maharashtra reported as 1995 Cri. L. J. 2362 cited by learned Counsel for the appellant, the accused was held to be not in conscious possession of the revolver and cartridge got recovered by making disclosure statement. Obviously, this judgment is also not applicable to the instant case. Moreover, in the instant case, recovery of the revolver at the instance of the appellant is strengthened by FSL report proving crime bullets to have been fired from the said revolver.
23. Learned Counsel for the appellant relying on Mohan Singh v. Prem Singh and Anr. reported as 2003 Scc (Cri.) 1514 contended that statement of the appellant u/s 313 Cr.P.C. cannot be used as substantive evidence or as a substitute for evidence of the prosecution and only inculpatory part thereof cannot be made sole basis of conviction. However, in the instant case, the prosecution has led cogent evidence of the occurrence having taken place in the house of the appellant. The dead body was lying there. Blood was also lifted from there. Empty cartridges and bullets were also seized from there. Blood stained blanket having holes caused by bullet projectiles was also seized from the spot. There is thus no doubt that the occurrence took place inside the house of the appellant. Moreover, even according to the aforesaid judgment in the case of Mohan Singh (supra), statement of the accused u/s 313 Cr.P.C. could certainly be taken aid of to lend credence to the evidence led by the prosecution. In any event, in the instant case, the prosecution evidence itself is sufficient to bring home the charge against the appellant beyond reasonable doubt.
24. Learned Counsel for the appellant relying on
25. Learned Counsel for the appellant also argued that motive in the case is not proved. However, as already discussed, motive for the crime is established because the motive was mentioned in the prompt FIR and has also been stated by Bansi Lal (PW-2). Moreover, motive pales into insignificance when there is direct ocular evidence corroborated by other evidence.
26. For the detailed reasons recorded herein above, it is manifest that there is no infirmity in the conviction of the appellant Gurmit Singh @ Nitu. The same is accordingly affirmed. Consequently, there is no merit in the appeal and the same is dismissed. The appellant, if on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining part of sentence.
27. Now, coming to Crl. Revn. No. 239 of 2008, assailing acquittal of Gurnam Singh @ Chinu and Manjeet Singh @ Sonu. In exercise of revisional jurisdiction, finding of acquittal cannot be converted into finding of conviction in view of express provision contained in Section 401(3) Cr.P.C. Even otherwise, application for grant of leave to appeal against acquittal of Gurnam Singh @ Chinu filed by the State already stands dismissed by this Court and the matter is stated to be pending before Hon''ble Apex Court. As regards prayer in the revision petition for awarding death sentence to the convict i.e. Gurmit Singh @ Nitu, the said prayer also cannot be accepted because it is not rare of the rarest cases warranting capital punishment. Consequently, the revision petition is without any merit and is accordingly dismissed.
