SURESHWAR THAKUR, J.

1. The relevant Sessions Case No.6 of 2009, whereons, the impugned verdict of conviction became drawn on 29.01.2010 by the learned Additional Sessions Judge (I), Bhiwani, arose from FIR No.174 of 03.12.2003.

2. In the above FIR one Vinod, one Manoj, one Ravi Kumar, one Rajesh, one Gulshan, and, one Anoop alias Kirori (who is the convict-appellant in the instant appeal) were arrayed as accused. The offences embodied in the above FIR were constituted under Sections 332/353/302/307/392/397, read with Section 34 of IPC, and, under Sections 25/27/57/59 of Arms Act. The FIR (supra), became registered with Police Station Siwani.

3. After conclusion of the trial in respect of the above accused, except the present appellant, the learned convicting Court through a judgment made, on 16.04.2007, proceeded to record a finding of conviction on various counts against accused Vinod and also co-accused Manoj, but made a verdict of acquittal against co-accused Ravi Kumar, Rajesh, and, Gulshan, but only in respect of charges drawn against them under Section 216-A of IPC.

4. Moreover, through a sentencing order drawn on 16.04.2007, by the learned Additional Sessions Judge (I), Bhiwani, the convicts Vinod, and, Manoj became entailed with capital punishment qua a charge for an offence punishable under Section 302 of IPC. Moreover, in respect of other charges drawn against the above convicts also consequent therewith sentence(s) became imposed upon the above convicts. However, co-convicts Vinod, and, Manoj preferred Criminal Appeal No.CRA-D-524-DB-2007, titled 'Vinod Vs. State of Haryana' before this Court, and thereons vide judgment recorded on 05.03.2008, this Court though affirmed the verdict of conviction, as became recorded against them, but commuted the sentence of capital punishment to a sentence of life imprisonment, qua an offence punishable under Section 302 of IPC, besides imposed a fine of Rs.10,000/- on each of them, and, in default thereof, sentenced the co-convicts to undergo rigorous imprisonment for a term extending upto two years. Nonetheless the verdict of conviction and consequent therewith sentence(s) (supra), as became recorded against the convict (supra), in respect of charges other than the one drawn under Section 302 of the IPC was not disturbed by this Court.

5. When the instant appeal became listed on 27.09.2022, this Court had made the hereinafter extracted order.

“1. Learned counsel appearing for the State of Haryana submits that the verdict pronounced with respect to the co-convicts by the learned trial Judge concerned on 29.01.2010, upon, Sessions Case No.6 of 2009 though did result in an appeal being made thereagainst, before this Court, however both counsel submit that the relevant appeal has been dismissed. Moreover, they further submit that there has been no challenge to the verdict of dismissal as made upon appeal No.524, as such, the decision made by this Court on appeal (supra) acquires finality.”

THE ACCUSED WAS A PROCLAIMED OFFENDER

6. But obviously the order (supra) does make the verdict as made, by this Court on 05.03.2008, upon Criminal Appeal bearing No.CRA-D-524-DB2007 titled 'Vinod Vs. State of Haryana', to be holding the apposite conclusive, and, binding effect. Resultantly, though the above conclusive and binding verdict, as made in respect of above appeal of co-convicts (supra), would have a telling bearing upon the fate of the instant appeal also. The reason becomes comprised in the factum, that the present convict-appellant, through an order drawn on 10.03.2005, hence was declared proclaimed offender by the learned Judicial Magistrate Ist Class, Siwani,. Therefore, he did not appear before the learned trial Judge concerned, along with the appearing accused, for his being tried alongwith the appearing accused. However, after his becoming arrested on 08.12.2008, but only after compliance being meted to the mandate carried in Section 299 of Cr.P.C., that the trial against him became entered into, which ultimately resulted in the present appellant, being convicted for offence(s) punishable under Sections 332, 353, 302, 307, 397 of IPC. Moreover, he also became convicted for an offence punishable under Section 25 of the Arms Act. Through a separate sentencing order drawn on 02.02.2010, the learned convicting Court sentenced the convict (i) to undergo imprisonment for life and to pay a fine of Rs.10,000/- for an offence punishable under Section 302 of IPC, and, in default thereof, the convict was sentenced to undergo rigorous imprisonment for a further period extending upto two years; (ii) to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/- for an offence punishable under Section 397 of IPC, and, in default thereof, the convict was sentenced to undergo rigorous imprisonment for a further period extending upto one and a half year; (iii) to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- for an offence punishable under Section 307 of IPC, and, in default thereof, the convict was sentenced to undergo rigorous imprisonment for a further period extending upto one year and six months (iv) to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- for an offence punishable under Section 353 of IPC, and, in default thereof, the convict was sentenced to undergo rigorous imprisonment for a further period extending upto six months (v) to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.3,000/- for an offence punishable under Section 332 of IPC, and, in default thereof, the convict was sentenced to undergo rigorous imprisonment for a further period extending upto six months (vi) to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.3,000/- for an offence punishable under Section 25 of Arms Act, and, in default thereof, the convict was sentenced to undergo rigorous imprisonment for a further period extending upto nine months.

7. 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 convict Anoop alias Kirori.

8. Be that as it may, yet despite the present convict being subsequently tried in respect of the extant FIR, which is common also to the one in respect whereof trial became earlier entered into by the learned trial Judge concerned, against the appearing accused, and, which ultimately resulted in a binding, and, conclusive verdict of conviction being recorded against the appearing accused by the learned convicting Court concerned. Moreover, though obviously the above binding, and, conclusive verdict of conviction as recorded against the convicts, by the learned convicting Court, does have a telling effect upon the fate of the instant appeal. The reason being that after surrender of the present convict before the learned trial Judge concerned, but obviously after re-course to the mandate of Section 299 of Cr.P.C., rather being made. Thus, necessarily, then the very same witnesses as earlier stepped into the witness box when trial against the appearing accused opened earlier, did also then re-step into the witness box. Resultantly, with common evidence emerging from a FIR common to both the earlier Sessions Case, and, to the instant Sessions Case No.6 of 2009, rather does necessarily require a similar appreciation being done thereons. Moreover, though a similar verdict as passed earlier in respect of appearing accused is also required to be passed qua the present convict.

9. Be that as it may, in the larger interest of justice it is deemed fit to appraise the evidence adduced by the prosecution against the present convictappellant. In that regard it is necessary to cull out the facts relevant for a decision of the instant appeal.

FACTUAL BACKGROUND

10. The genesis of the prosecution case is embodied in the FIR to which Ex.PA is assigned, thereins, it is narrated that on 03.12.2003, a V.T. Message was received by MHC, P.S. Siwani from Hisar that three youths had snatched a motorcycle from Hrita Bridge and run away towards Sharva Miran. Pursuant thereto, author of the FIR, SI/SHO Bhagwan Dass, PS Siwani, set out with HC Dhruv No.887 and HC Kailash Chand No.452, in a Government Jeep No.HR16- 0935, driven by Constable Subhash No.407, to Dhoolkot Chowk, Rupana, for nakabandi (laying blockade). The nakabandi started at about 5:30 p.m. At that time, Constable Sushil Kumar (No.977), who was posted as Naib Court, JMIC Siwani, met the SHO. While the SHO was talking to him, a motorcycle of black colour was noticed coming from Siwani side with three youths riding it. Having seen the police party, they turned back the motorcycle and fled away. The SHO with other police officials and Constable Sushil Kumar, followed them in the Government Jeep. However, the motorcyclists turned the vehicle towards the middle street of Rupana but the vehicle was caught into mud in the street. Hence, they abandoned the motorcycle there and fled away. Seeing that, the SI/SHO along with HC Dhruv, HC Kailash and Constable Sushil Kumar also left the jeep and ran behind them to apprehend. The miscreants crossed the village and entered into a field. The SHO surrounded the field from Dhoolkot side along with other police personnel, therefore, the miscreants turned towards the Talwandi road. In the meantime Driver of the Government vehicle, Constable Subhash, brought the jeep from Dhoolkot Road to Talwandi Road and surrounded the miscreants. He caught hold of one of them. In the meantime, other two accused fired 2 to 3 rounds at Constable Subhash. The accused who was caught hold of by Constable Subhash, also fired from his pistol not at Subhash but at Constable Sushil, which, however, did not hit him. The SHO also fired two rounds from his service pistol, and then he along with other police officials managed to apprehend the accused, who had been caught by Subhash and who had fired at Constable Sushil Kumar. Having received bullet injuries, the driver of the Jeep, Constable Subhash, became unconscious and collapsed on the ground. The other two accused managed to flee away, in the Government Jeep, along with a police SLR and a magazine of 15 rounds lying therein, towards village Talwandi while indulging in firing. The accused, who was apprehended on the spot, also tried to free himself. During the course of occurrence, the accused and Constable Sushil, received injuries. On enquiry, the accused revealed his name as Manoj son of Narender and the names of his two associates as Vinod son of Lachhi and Anoop son of Rattan Singh. From the search of accused Manoj, a country made pistol along-with magazine of 4 live cartridges of 9 mm were recovered. The SHO flashed the message throughout the district informing the police to hold nakabandi. ASI Madan Lal reached the spot on his motorcycle on receiving the message and accused Manoj alongwith his country made pistol was handed over to him. The SHO arranged a private jeep and carried Constable Subhash to Hissar for treatment. By the time he could reach the CMC, Hisar, Constable Subhash succumbed to the fire arm injuries. On the basis of aforesaid information, a case/FIR under sections 332, 353, 302, 307, 392 and 397 read with Section 34 IPC and Sections 25/27/54 of the Arms Act was registered.

INVESTIGATION

11. During the course of investigation, the inquest of dead body of the deceased was conducted by SHO Bhagwan Dass on 3.12.2003. During inspection of dead body, he noticed a bullet mark on the left cheek and another bullet injury on the right side limbs. The dead body was bleeding from the nose. The special report under section 157 Cr.P.C., was sent to learned Illaqa Magistrate on 4.12.2003 at 2:45 a.m. During the course of further investigation, Bhagwan Dass, SI/SHO, seized one country made pistol of 9 mm size alongwith 4 live cartridges from accused Manoj and also his own service pistol of 9 mm size along-with magazine. From his service pistol of 9mm with No.15174717, he had fired two rounds of cartridges. The Government Jeep No.HR-16A/0935 of blue colour, was taken into possession from the spot, near village Lalhana, on approach road to Hetampura. The Jeep belonged to PS Siwani. One Yammaha motorcycle with No.HR35/3713 was recovered in front of the house of one Rajbir son of Maru Ram, which had been abandoned there, by the accused. SLR 762 with magazine and cartridges, was recovered after the disclosure statement of accused Vinod, given in police custody on 13.8.2005. It was recovered from a locked room, where the SLR with magazine and 15 cartridges, was lying on a cot. On pointing out by accused Vinod, an identification memo in respect of the scene of occurrence was prepared on 15.08.2005.

COMMITTAL PROCEEDINGS

12. Since the afore offences were exclusively triable by the Court of Session, thus vide committal order dated 16.03.2009, the learned Judicial Magistrate Ist Class, Siwani, committed the accused to face trial before the Court of Session.

TRIAL PROCEEDINGS

13. The prosecution examined as many as 17 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. However, the learned defence counsel did not lead any defence witness.

SUBMISSIONS OF LEARNED COUNSEL FOR APPELLANT

14. The learned counsel appearing for the convict-appellant, has made a vigorous submission before this Court, that no reliance can be placed upon the signatured disclosure statement, as made by victim Anoop alias Kirori. Moreover, he also submits that the consequent therewith recoveries, are also false, resultantly no reliance can also be placed upon the recovery(ies) of incriminatory items, as became made purportedly at the instance of the present convict-appellant.

15. 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.

MEDICAL EVIDENCE (POST MORTEM REPORT)

16. The post mortem upon the body of deceased Subhash, was conducted on 04.12.2003 by PW-13 and Dr. KD Sharma. PW-13 has proven qua his, authoring Ex.PR/1, as relates to the autopsy as made upon the body of deceased Subhash. Moreover, he has proven that the cause of death of deceased Subhash was owing to haemorrhage and shock as a result of bullet injuries as became described thereins. The said ante-mortem bullet injuries are extracted hereinafter.

“1. A contusion 4 x .5 inch pinkish discoloration was present on the scalp in the middle. On opening clotted blood was present in the sub cutaneous tissues was present. The injury was ante mortem in nature.

2. Lacerated wound .5 x .5 cm on the left side of the face which was skin deep.

3. Lacerated wound with inverted margins on the right side chest 6cm below the nipple tearing chest muscles then going deep in omentum injuring right side pleura and lungs injuring them and going deep and entering into vertibra on exploration a metallic part of the bullet was found, which was sealed in glass vial bearing one seal. The vertibra was badly crushed and whole abdomen was full of blood. This injury was ante mortem in nature.”

DISCLOSURE STATEMENT AND CONSEQUENT THEREWITH RECOVERIES

17. During the course of custodial interrogation of the present appellant Anoop alias Kirori, he made a signatured disclosure statement to which Ex.PG is assigned, which becomes extracted hereinafter, whereins he after confessing his guilt, revealed his willingness to ensure the recovery of SLR gun, 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 SLR gun, hence through a recovery memo to which Ex.PG/4 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 ably deny nor proved the denial. Moreover, since also the consequent therewith recoveries, were made through recovery memo to which Ex.PG/4 is assigned. Therefore, when he has not been able to ably prove that the recovery of SLR gun, 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 become cogently proven.

“xxx

Disclosure Statement of accused Anoop alias Kirori

In the presence of witnesses accused Anoop @ Kirori s/o Rattan Singh Jat r/o Baliyali under police custody voluntarily without any pressure disclosed during investigation that, “Five years ago from today I, Vinod s/o Lachhi Ram Brahman r/o Mithathal and Manoj s/o Narender Brahman r/o Bamla all the three are going on a yamaha motor cycle from Siwani to Bhiwani Rupana road. When we reached near village Rupana and saw that there was Naka hold by police. To saw the police we have turned up our motorcycle back and police pursue us then we entered in the village without motorcycle. There was mud in the street. When the motorcycle was slip we left it and run towards the fields. The police pursue us. Manoj run away in other side. I and Vinod came out from the fields and came on Talwandi road. Then a constable try to apprehend us and Vinod taken into grip the constable and my revolver which was snatched by me from Lila Ram ASI at Bhiwani and shot fire to the constable and the jeep which was standing near by I and Vinod sit in that Jeep in which SLR gun was also placed run away toward Lalhana. We parked the jee near Lalhana and took the SLR Gun I and Vinod snatched a motorcycle and fled away. That the snatched motor cycle was placed near the pond of village Jharvai and started to go on foot. I and Vinod concealed the SLR gun in the heap of mauza fodder near Galkatt village. The place where the constable was shot fired and motorcycle was snatched and left and the SLR was concealed in the mauza Fodder heap. I can identify all the places. Disclosure statement was recorded. The accused and witnesses signed on the disclosure statement.

Anoop Singh Accused Sd/- Anoop (Hindi)

1. ASI Madan Lal P.S. Siwani

sd/- Madan Lal ASI (English)

2. EHC Jagbir Singh 963 P.S. Siwani

sd/- Jagsir Singh 963 (English) Sd/- 8.12.08

SHO, P.S. Siwani”

FSL REPORT

18. Through memo No.149-DSP(s) drawn on 10.02.2009 certain incriminatory items/weapons of offence became sent vide RC No.49 of 17.02.2009, through Sajjan Kumar No.447 to the FSL concerned, for examinations thereof being made by the Expert concerned. The result of the examination as made by the FSL, on the .38 self loading revolver, makes it forthrightly clear, that the firing mechanism thereof was found to be in order, but the ballistic expert has refrained from making any firm opinion, about the timing of bullets/pellets being fired therefrom. The report of the Ballistic Expert is carried in Ex.PQ. The relevant result is extracted hereinafter.

“RESULT

1. The .38” revolver marked W/1 is a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was found in working order.

2. The .38” revolver marked W/1 had been fired through. However, scientifically, the time of its last firing can not be given.”

However, since in the opening of the Ex.PQ the ballistic expert has pronounced that smokeless powder was detected from the barrel of .38 revolver, resultantly when a bullet did become fired therefrom. Thus, even if the ballistic expert, has refrained from giving a firm opinion about the timing when the relevant firearm was used, so as to relate it to the time of occurrence of the crime event. Nonetheless, since as above stated the present convict remained under absconsion from 10.03.2005 to 08.12.2008. Therefore, it appears that evidence with respect to the time or age of the user of the firearm by the present convict, so as to relate it to the time of the happening of the crime event, but may have disappeared or the relevant evidence may have deteriorated, but obviously with the above prolonged elapse of time, since its user, and, its recovery being made. Conspicuously also when the signatured disclosure statement made by the convict has been for reasons (supra), concluded to be completely valid besides when the same also holds the requisite evidentiary worth, thus, when also the effectuation of the relevant recovery was but a sequel thereof. Resultantly, when the relevant recoveries are also valid, and but, do embody the best incriminatory evidence especially when they are proven to be neither concocted nor tainted. Therefore, irrespective of the ballistic expert not making any vivid echoing in Ex.PQ, with respect to the time of user of the crime weapon by the convict, yet the factum of its user at the relevant time by the convict becomes fully established.

SUMMARIZATION OF PRINCIPLES

I. If a signatrured disclosure statement leads to the relevant recovery(ies) of weapon(s) of offence, being made at the accuseds' instance, then evidentiary worth is to be assigned thereto(s).

II. The assigning of evidentiary worth to a signatured disclosure statement made by the accused, hence leading to the makings of the relevant recovery(ies) at the accuseds' instance ensues from the trite principle, that the confession of guilt carried in a proven disclosure statement as made by the convict would not become a bald or simpliciter confession nor also would be hit by Section 25 of the Indian Evidence Act, but only if it leads to the relevant recovery(ies) being caused at the instance of the accused.

III. The signatured disclosure statement of the convict, leading to the making of the relevant recovery(ies), enjoys immense evidentiary credit, but only if the accused is not able to either ably deny nor is able to prove the relevant denial. If the accused ably denies his signatures carried on the relevant memos, besides also ably proves the relevant denial. Thus, the relevant drawn memo besides the recovery(ies) as made in pursuance thereof, do become tainted with a blemish of such recovery(ies), being engineered or manufactured by the investigating officer concerned.

FINAL ORDER

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

20. Records be sent down forthwith.