SURESHWAR THAKUR, J

1. The instant appeal is directed against the verdict made on 22.04.2011, upon Sessions Case No.04 of 2011 by the learned Sessions Judge, Panipat, wherethrough in respect of charges drawn against three accused for offences punishable under Sections 302, 394, 397 of IPC, and, under Section 25 of the Arms Act, he convicted accused Altaf alias Chatwa alias Foji alias Dewan alias Farid, and, Ved Parkash alias Pappi, but made a order of acquittal qua coaccused Satbir. Moreover, through a separate sentencing order drawn on 25.04.2011, the learned Sessions Judge, Panipat imposed, upon the convicts (supra), the hereinafter extracted sentence(s) of imprisonment and of fine. All the sentence(s) were ordered to run concurrently. Moreover the period spent in custody during investigation, and, trial of the case was in terms of Section 428 of Cr.P.C., ordered to be set off from the above imposed sentence(s) upon the convicts.

“i) To undergo rigorous imprisonment for life and to pay fine of Rs.5000/- each for committing the offence punishable under Section 302 read with Section 34 of Indian Penal Code. In default of payment of fine, the defaulting accused shall further undergo rigorous imprisonment for a period of ten months.

ii) To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5000/- each, for committing the offence punishable under Section 392 read with Section 34 of Indian Penal Code. In default of payment of fine, the defaulting accused shall further undergo rigorous imprisonment for a period of ten months.

iii) To undergo rigorous imprisonment for a period of ten years each, for committing the offence punishable under Section 397 read with Section 34 of Indian Penal Code.

Accused-convict Altaf is also sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine Rs.2000/- for committing the offence punishable under Section 25 of the Arms Act. In default of payment of fine, he hall further undergo rigorous imprisonment for a period of four months.”

2. The State of Haryana has not preferred any appeal before this Court against the verdict of acquittal, as made by the learned Sessions Judge, Panipat qua co-accused Satbir. Therefore, the verdict of acquittal as made by the learned trial Judge concerned, qua co-accused Satbir acquires conclusivity..

3. However, the convicts (supra) became aggrieved from the verdict of conviction (supra), besides also became aggrieved from the sentence(s) of imprisonment and of fine (supra), as became imposed upon each of them. Thus, are led to institute thereagainst the instant appeal before this Court.

FACTUAL BACKGROUND

4. The genesis of the prosecution case is embodied in the FIR to which Ex.PB is assigned, thereins, it is narrated that on 10.05.2008, Om Parkash, Inspector (PW24), the then station house officer, Police Station Madlauda alongwith other police officials was present at Bhalsi turn, Grain market Road, Madlauda for patrolling and crime detection, in official vehicle No. HR-06J9994. An information was received that near Nephtha plant near Iron Bridge, some unknown persons had robbed money by causing firearm injuries. On that information, he alongwith other police officials reached the spot, but came to know that the injured was shifted to General Hospital, Panipat. Then, he reached General Hospital, Panipat, where complainant Madathil Balakrishnan Suresh (PW1) met and got recorded his statement Ex.PA. It was submitted by complainant that Petron company had taken contract for mechanical installations in Nephtha and he was appointed as Accounts officer in the said company. On that day, he alongwith Sarvesh Pandey (deceased), Arvind Kumar Sinha and Prem Kumar (PW4), Accounts Clerk had gone to ICICI Bank, Main Branch Panipat in white Ambassador car bearing No.MH-06C-0645 being driven by Ajit Singh (PW3) and withdrew amount for making payment of salary to the laborers. At about 12.00 noon, when they reached near railway crossing, naphtha Plant, Delhi Parallel Pucca canal, one tractor trolley loaded with cow-dung cakes came from the opposite direction. As the passage was narrow, the driver of their car stopped the car on one side. In the meantime, three young man came from behind on a motorcycle. One young man was tall, whereas the other two young men were of middle stature and they all were aged 25 to 30 years. They stopped the motorcycle and the tall young man, who was having a pistol, fired on Sarvesh Pandey, who was sitting on the rear seat behind the driver and the shot hit his chest. The other young man had also pointed their pistols upon them. The culprits asked the driver to get down and took out the ignition key, opened the dickey, took out the brief-case containing Rs.25 lacs and the blue bag containing Rs.11,86,000/- from the dickey and escaped from there on their motorcycle alongwith the brief-case and the bag. Thereafter, Sarvesh Pandey was brought to General Hospital, Panipat for treatment, but the doctor declared him as brought dead. It was further submitted by the complainant that due to panic, the number of the motorcycle could not be noticed.

INVESTIGATION

5. Om Parkash, Inspector made his endorsement Ex.PC under the aforesaid statement of the complainant and sent the same to the Police Station, on the basis of which, first information report Ex.PB was recorded by Jasbir Singh, Assistant Sub Inspector (PW2). Om Parkash, Inspector carried out initial investigation. He prepared inquest report Ex.PW13/B and got post mortem conducted on the dead body of the deceased from General Hospital, Panipat. Ambassador car bearing No.MH-06C-0645 was taken into possession vide memo Ex.PW3/A. Blood stains were found on the rear seat of the car. That portion of the seat was cut. One piece of blood stained cardboard was also lifted from the car. The portion of the seat and the blood stained cardboard piece were taken into possession vide memo Ex.PW15/A. One empty cartridge was also lying in front of the driver seat and the same was taken into possession vide memo Ex.PW15/B. Site plan regarding the place of occurrence Ex.PD was prepared. The sealed parcels handed over by the doctor after post mortem examination were taken into possession vide memo Ex.PW22/A. On 13.05.2008, Prem Kumar handed over his blood stained pants and shirt and the same were taken into possession vide memo Ex.PW4/A. Hari Parkash, Head Constable (PW20) had gone to Allahabad where dead body of the deceased was cremated and from the ashes of pyre, he took into possession a fired bullet and handed over the same to Om Parkash, Inspector, regarding which memo Ex.PW5/A was prepared.

6. Accused Satbir and Ved Parkash were arrested on 15.09.2008 in case bearing first information report no.684 dated 15.09.2008 relating to Police Station City Panipat by Jagdeep Singh Inspector (PW25). One pistol of .315 bore and two live cartridges were recovered from accused Satbir. One empty cartridge was taken out from the said pistol. Rough Sketch of the pistol Ex.PW8/A was prepared. One Pistol of .315 bore and two live cartridges were recovered from accused Ved Parkash and one empty cartridge was taken out from the same. Rough Sketch of the pistol Ex.PW8/B was prepared. The sealed parcels alongwith the motorcycle No.HR-06R-8345 were taken into possession vide memo Ex.PW8/C. On 16.09.2008, on interrogation, accused Satbir suffered disclosure statement Ex.PW9/A and accused Ved Parkash suffered disclosure statement Ex.PW9/B. On 23.09.2008, both these accused were arrested in the present case. Application Ex.PE was moved before the Ilaqa magistrate for conducting identification parade, but the accused refused to join the identification parade and their statements Ex.PF and Ex.PG in that regard were recorded by the then learned Addl. Chief Judicial Panipat. On 29.9.2008, they were further Magistrate, Panipat interrogated. Accused Ved Parkash made disclosure statement Ex.PW23/A and accused Satbir made disclosure statement Ex.PW23/B. In pursuance of the disclosure statement, accused Ved Parkash got recovered Rs.1,60,000/- and the same were taken into possession vide memo Ex.PW23/C. Rough site plan Ex.PJ regarding the place of recovery was prepared. Accused Satbir, as per his disclosure statement, got recovered Rs.65000/- and the same were taken into possession vide memo Ex.PW23/D. Site plan regarding the place of recovery Ex.PK was prepared. Both the accused identified the place of recovery, regarding which memo Ex.PW23/F was prepared.

7. On 04.11.2008, accused Altaf was arrested. Application Ex.PL was moved before the Ilaqa Magistrate for conducting identification parade, but the accused made statement Ex.PM refusing to participate in the identification parade. On 6.11.2008, on interrogation, he suffered disclosure statement Ex.PW18/A and in pursuance thereof, got recovered Rs.10,000/-, one pistol of .32 bore and three live cartridges of the same bore. Sketch of the pistol Ex.PW18/B was prepared. The currency notes, pistol and cartridges were taken into possession vide memo Ex.PW18/C. Rough site plan regarding the place of recovery Ex.PO was prepared. He also identified the place of occurrence regarding which memo Ex.PQ was prepared. On 9.11.2008, on further interrogation, the accused suffered disclosure statement Ex.PW17/A and in pursuance thereof, got recovered Rs.60,000/ which were taken into possession vide memo Ex.PW17/B. On completion of other usual acts of investigation, report under Section 173 of the Code of Criminal Procedure was prepared by Virender Singh, Inspector, the then Station House Officer, Police Station Madlauda.

COMMITTAL PROCEEDINGS

8. Since the afore offences were exclusively triable by the Court of Session, thus vide committal order dated 17.01.2009, the learned Addl. Chief Judicial Magistrate, Panipat, committed the accused to face trial before the Court of Session.

TRIAL PROCEEDINGS

9. The prosecution examined as many as 27 witnesses and, subsequently, the public prosecutor closed prosecution evidence. After the closure of the prosecution case, the learned trial Judge drew proceedings under Section 313 Cr.P.C., whereins, the accused pleaded innocence, and, claimed false implication. The learned defence counsel examined one witness in defence..

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE APPELLANTS

10. The learned counsels appearing for the convicts-appellants have vigorously submitted before this Court, that since the complainant while stepping into the witness box, has resiled from his previously made statement in writing, besides when he also failed to identify the co-accused, in Court, to be the persons who committed the charged offences;

a) Thus, he submits that the verdict of conviction is amenable for becoming interfered with.

b) That the recoveries of the incriminatory weapon(s) as made, at the instance of the convicts concerned, are tainted as well as engineered, therefore no reliance can be placed thereons rather for recording any verdict of conviction qua the convicts-appellants.

11. Contrarily, the learned State counsel has argued that, the verdict challenged before this Court is well merited, and, does not warrant its becoming interfered with, by this Court.

IDENTIFICATION OF THE ACCUSED IN COURT BY PW-3, AND, PW-4 AND IMPACT THEREOF UPON THE COMPLAINANT RESILING FROM HIS PREVIOUSLY MADE STATEMENT IN WRITING

12. PW-3 has in his examination-in-chief completely supported the genesis of the prosecution case, as becomes embodied in the extant FIR, to which Ex.PB is assigned. Moreover, during the course of his making his testification before the Court, he also did identify both accused Altaf, and, Ved Parkash, both of whom were then present in Court, and, to whom he ascribed in his examination-in-chief, an incriminatory role rather in complete tandem with the role, as became ascribed to them in FIR Ex.PB. During the course of his cross-examination he accepted the suggestion that, he became awakened of the names of the accused during the course of his making his deposition before the Court. However, since in the latter part of his cross-examination, he has also deposed that, during the course of investigations being underway into the FIR Ex.PB, he had made a statement before the police that he could identify the assailants, if he happened to see them again. However, even though the above echoing made in the cross-examination of PW-3, is an improvement qua his previously recorded statement in writing, as thereins, rather the above fact is not recorded. Nonetheless, the above improved factum yet does not lead to a conclusion, that the identification of the accused, in Court, by PW-3, is but frail and legally fragile. The reason for making the above conclusion ensues from the factum that, during the course of investigations being made into the FIR Ex.PB, an application Ex.PE was preferred, by the investigating officer concerned, for seeking the leave of the Court, to conduct a valid test identification parade of accused Ved Parkash, and, Satbir. However, both the above as revealed by their respective statements, as respectively carried in Ex.PF, and, in Ex.PG, rather declined to mete their consent to join the test identification parade. Moreover, the investigating officer concerned, as revealed by Ex.PL, also asked for leave of the learned trial Court, for holding a test identification parade in respect of co-accused Altaf. However, as revealed by Ex.PM co-accused Altaf also declined to join the test identification parade.

13. The fact of all the accused declining to join the test identification parade, does nail a firm conclusion, that their declinings are but construable, to work adversarially to the defence or in other words the declinings of the accused to join the test identification parade, were but a sequel of theirs perceiving that they would thereins became identified by the witnesses concerned. Resultantly, it can but be concluded that the witnesses concerned, did at the crime site, and, at the relevant stage become awakened of their key characteristic physical attributes, and, that hence they became facilitated to identify the accused, in Court, irrespective of any test identification being earlier conducted by the investigating officer concerned, conspicuously when there was denial on the part of all the accused to join the test identification parade. The further consequence thereof, is that, the statement of PW-3, when becomes completely corroborated by the statement of PW-4, rather does ably suggest that thereins becoming encapsulated a credible eye-witness account qua the ill fated occurrence. Furthermore, the above made argument by the learned counsels for the convictsappellants also does become completely benumbed.

DISCLOSURE STATEMENT OF CO-CONVICT ALTAF AND CONSEQUENT THEREWITH RECOVERIES

14. During the course of the custodial interrogation of the appellant Altaf, he made a signatured disclosure statement to which Ex.P18/A is assigned, statement whereof becomes extracted hereinafter, whereins, he after confessing his guilt, revealed his willingness to ensure the recoveries of Rs.10,000/-, and of pistol of .32 bore, besides of three live cartridges, to the investigating officer concerned, from the place of their hiding, and, keeping by him, given the relevant place(s) being known only to him. In consequence thereto he caused recoveries of pistol of .32 bore, of three live cartridges .32 bore, besides of Rs.10,000/-, hence through a recovery memo to which Ex.P18/C is assigned. The above made signatured disclosure statement by the convict-appellant, causes an inference that it acquires evidentiary vigor, as thereons his admitted signatures occur, and, which he did not either ably deny nor proved the denial. Moreover, since also the consequent therewith recoveries, were made through recovery memo to which Ex.P18/C is assigned. Therefore, when he has not been able to ably prove that the recoveries of pistol of .32 bore, of three live cartridges .32 bore, besides of Rs.10,000/-, were either fictitious or a sheer invention, through a stratagem employed by the investigating officer concerned. Thus, the above proven memos, spark an inference that the relevant charge drawn against the convict-appellant (supra) becoming cogently proven.

“xxx

Disclosure Statement of accused Altaf

In presence of following witnesses accused Altaf @ Chatwa @ Fauzi @ Diwaj Ji @ Farid son of Kalwa @ Yamin Caste Kureshi Musalman r/o Gali No.3 Islamabad Near Golakuan P.S. Lisadi Gate Meerut (U.P.) Now at Gali No.10 Old Mustafabad P.S. Gokulpuri Delhi in the aforesaid case under police custody without any fear and greediness disclosed that “as per my previous statement dated 4.11.08 I falsely disclosed regarding amount came into my share and pistol used in this incident. In this incident Rs.22 lacs (Rs. Twenty two lacs) were come in my share. Out of which Rs.13 lacs (Rs. thirteen lacs only) was spent for purchase of a house at about 55 years in which four shop in front side and rooms are constructed in back side and on upper side, in the name of my wife Amirjhanha from Iqbal son of Abdul Aziz r/o H. No.C-334 Bhagirath Vihar through Islam Property Dealer Gali No.6 Old Mustafabad Delhi and remaining Rs.4 lac (Rs. Four lacs only) I have given to my wife Amirjhan and brother-in-law Firoj son of Yasin Musalman r/o Shyam Nagar Lisadi Gate Meerut. Out of which remaining Rs.10000/- (Rs. ten thousands only) and pistol of .32 bore used in incident and three live cartridges have kept in box lying in the back side room of my house at Prem Vihar Delhi. Of which nobody know except me. I can got recovered after demarcation. Disclosure memo prepared, of which accused and witnesses put their signatures.

Witnesses:

1. EASI Ram Kumar No.64,

CIA Staff, Panipat. LTI of Accused Altaf

Sd/- (In Hindi)

2. EHC Satbir No.419, Sd/- (In English)

CIA Staff, Panipat Jagdeep Singh SI,

Sd/- (In English)” CIA Staff, Panipat Dt. 6.11.08.”

DISCLOSURE STATEMENT OF CO-ACCUSED VED PARKASH @ PAPPI AND CONSEQUENT THEREWITH RECOVERIES

15. During the course of the custodial interrogation of the appellant Ved Parkash @ Pappi, he made a signatured disclosure statement to which Ex.PW23/A is assigned, statement whereof becomes extracted hereinafter, whereins, he after confessing his guilt, revealed his willingness to ensure the recovery of a sum of Rs.1,60,000/-, to the investigating officer concerned, from the place of its hiding, and, keeping by him, given the relevant place being known only to him. In consequence thereto he caused recovery of a sum of Rs.1,60,000/-, hence through a recovery memo, to which Ex.23/C is assigned. The above made signatured disclosure statement by the convict-appellant, causes an inference that it acquires evidentiary vigor, as thereons his admitted signatures occur, and, which he did not either ably deny nor proved the denial. Moreover, since also the consequent therewith recoveries, were made through recovery memo to which Ex.P23/C is assigned. Therefore, when he has not been able to ably prove, that the recovery of a sum of Rs.1,60,000/-, was fictitious or a sheer invention, through a stratagem employed by the investigating officer concerned. Thus, the above proven memos spark an inference that the relevant charge drawn against the convict-appellant (supra) becoming cogently proven.

Disclosure Statement of accused Ved Parkash @ Pappi

In the presence of following witnesses accused Ved Parkash @ Pappi son of Keshav Ram Caste Gadriya r/o Dhandhera, P.S. Sikhera District Muzaffar Nagar U.P. As per his previous statement facts recording regarding recovery after telling falsely disclosed that, “Rs. three lacs were come in my share after the incident, in which one lac forty thousands rupees have spent on my entertainment and remaining one lac sixty thousands rupees in a brief case kept concealed inside the bed lying in the rented room of Sunder son of Ram Kishan Jhimar r/o Garhi Sikandarpur, of which no body knows except me. I can got recovered after demarcation.” Disclosure statement of accused recorded. On which accused Ved Parkash and witnesses put their signatures.

Ved Parkash Accused. (Sd/- (In Hindi)

Witnesses:

1. EASI Rohtash CIA Staff, Panipat.

Sd/- (In English) Sd/- (In English)

2. EHC Krishan Kumar No.370, Jagdeep Singh

CIA Staff, Panipat SI, CIA Staff, Panipat

Sd/- (In English)” Dt. 29.09.08.”

MEDICAL EVIDENCE (POST MORTEM REPORT)

16. The medical evidence becomes comprised in the post mortem report, to which Ex.P13/C is assigned. PW13/C has been proven by its co-author Dr. Anil Kumar, who stepped into the witness box as PW-13. During the course of his examination-in-chief he tendered his affidavit to which Ex.P-13/A is assigned. The relevant observations as made by him on his making an autopsy on the body of the deceased Sarvesh Pandey become extracted hereinafter.

“EXAMINATION PROPER:

Length of Body was 6 ft. and there were no mark of ligature on neck. It was a stout dead body wearing white blood stained shirt and a hole in the shirt in right side corresponding to the site of wound over dead body. White blood stained Baniyan, Blue under wear, gray pant. Rigor mortis present all over body. Red clotted blood present in mouth and nostril. INJURY: An oval wound of irregular shape inverted margin of size 2x1 cm over just above the medial end of right clavicle. Border blackened, red blood coming through wound. On dissection of wound this hole is continuous as track inside thoracic cavity damaging heart and left lung lower lobe. Thoracic cavity was full of blood. Abdominal cavity was also having free blood and stomach was damaged. Even after prolonged exploration bullet could not be located. However i.e. Visible in X-ray film which is handed over to police. Stomach and its contents ruptured. Small intestine and their contents smeared with blood and contain semi digested food, large intestines smeared with blood and contains Feaces.

Liver Spleen and Kidney smeared with blood and pale. Bladder contains small amount of urine. External genital healthy.”

17. He has proven that the cause of demise of the deceased was hemorrhage and shock owing to ante mortem injuries on the vital organs of the body i.e. lung, and, heart, and, were sufficient to cause death in the ordinary course of nature. The above opinion links the cause of demise of the deceased to the users of the incriminatory weapon of offence on the relevant portion(s) of the deceased's body.

FSL REPORT Ex.PX, AND, Ex.PY

18. Through forwarding memos No.46953 and No.85221, respectively drawn on 31.05.2008, and, on 04.12.08, the investigating officer concerned, sent in sealed cloth parcels, the relevant incriminatory items to the FSL concerned, hence respectively through RC Nos.268, and, RC No.666 rather respectively through Constable Shamsher Singh No.579, and, Constable Baljeet Singh 116. The Ballistic Expert working at the FSL concerned, after making an examination of the relevant incriminatory items as became sent through the apposite road certificate(s), did make thereons the hereinafter extracted opinion.

1. The pistol marked W/1 (Chambered for 7.65mm cartridges) is a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was found in working order.

2. 7.65mm fired cartridge case marked C/J, Jacket of 7.65mm fired bullet marked BC/1 have been fired from pistol marked W/I and not from any other firearm every of same make and bore/caliber, because every firearm has got its own individual characteristics marks.

3. The hole on front upper right side on the shirt contained in parcel No.III has been caused by a bullet projectile.

4. Report in original from Serology division is enclosed herewith.”

19. The above extracted opinion as made by the Ballistic Expert, on the incriminatory weapon of offence, and, upon the therefrom fired bullet bearing mark BC/1, does connect co-convict Altaf, with the user of the recovered weapon of offence, recovery whereof, became validly effectuated through memo Ex.PW18/C, rather at the instance of the convict Altaf. Moreover, the hereinabove extracted result, as made by the Ballistic Expert on the relevant incriminatory items, also supports the above credible ocular account, as becomes rendered qua the genesis of the prosecution case, rather consistently by PW-3, and, PW-4. Moreover, the proven declaration as comprised in Ex.P-13/A, that though in the apposite X-ray, a noticeable bullet being within the body of the deceased Parvesh Pandey, but yet the same was not amenable for extraction, does also connect the above bullet to its becoming fired by co-convict Altaf, hence from the recovered weapon of offence, at the instance of convict Altaf. The trite reason for forming the above inference does also become embedded in Ex.PW-5/A. A perusal of Ex.PW-5/A reveals, that from the ashes of the cremated body of the deceased, one bullet lead becoming recovered, and, the same becoming inserted inside a sealed cloth parcel. The sealed cloth parcel, as above stated became sent through the apposite road certificate to the FSL concerned, and, thereons an opinion was made, that it became fired from the weapon of offence, as became recovered at the instance of convict Altaf. Resultantly, the above collected lead bullet through memo Ex.PW-5/A, does also most ably connect the same to the valid making(s) of recovery of the apposite weapon of offence at the instance of accused Altaf, and also but obviously relates the same to its user by convict Altaf rather, upon the deceased. The reason for forming the above conclusion ensues from the factum that no cogent evidence has been adduced by the defence to rebut the presumption of truth attached to Ex.PY.

SUMMARIZATION OF PRINCIPLES

I. Though for a valid identification, in Court, of the accused by the witnesses concerned, especially when the names of the accused are not known to them, does require the prior theretos valid identification of the accused by the witnesses concerned. However, the above rule would become whittled, if, as in the instant case, the accused do not purvey their consent for their participation in the test identification parade. Moreover, the above denial works adversarially to the defence. In addition, then the identification, in Court, of the accused by the witnesses concerned, becomes a valid and able identification.

II.The incriminatory links comprised in the validly made disclosure statements of the convicts, and, the consequent therewith recoveries, do also comprise a vital incriminatory link against the accused, unless the convicts ably deny the existence of their signatures thereon, and, also prove the said denial, and/or, prove that the relevant recoveries are engineered, and, planted.

III.The report of the Ballistic Expert qua the relevant weapon of offence being fired from, and/or, the recovered bullet being fired therefrom, does also become a potent incriminatory link against the accused, unless evidence surges forth to bely the presumption of truth attached to the report of the Ballistic Expert.

FINAL ORDER

20. In consequence, the impugned verdict of conviction, and, also the consequent therewith order of sentence, as becomes respectively recorded, and, imposed, upon the convicts by the learned trial Judge concerned, does not suffer from any gross perversity, or absurdity of any gross mis-appreciation, and, nonappreciation of the evidence on record. In consequence, there is no merit in the appeal, and, the same is dismissed. If the accused are on bail, thereupon the sentence(s), as imposed upon them, be ensured to be forthwith executed by the learned trial Judge concerned, through his forthwith drawing committal warrants qua them. Case property, if any, be dealt with in accordance with law, but only after the expiry of the period of limitation for the filing of an appeal.

21. Records be sent down forthwith.

22. Pending miscellaneous application(s), if any, stand(s), disposed of.