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DAVINDER KUMAR ALIAS BUNTY versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Davinder Kumar alias Bunty v. State of Punjab - CRA-D-141-DB-2005 [2007] RD-P&H 26 (8 January 2007)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.

Davinder Kumar alias Bunty APPELLANT

VERSUS

State of Punjab RESPONDENT

CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL
HON'BLE MR.JUSTICE BALDEV SINGH

Present:- Mrs.Simsi Dhir, Advocate for the appellant (in Cr.A.141-DB of 2005)

Mr.R.P.S.Athwal, Advocate for the appellant (in Cr.A.226-DB of 2005)

Mr.H.P.S.Aulakh, Advocate for the appellant (in Cr.A.268-DB of 2005)

Mr.S.S.Randhawa, Senior D.A.G. Punjab.

MEHTAB S.GILL, J.

We will be deciding Criminal Appeals No.141-DB of 2005, 226-DB of 2005 and 268-DB of 2005 by this common judgment, as they arise out of the same judgment/order dated 4.2.2005 of the Sessions Judge, Ropar, by which he convicted appellant Davinder Kumar alias Bunty under Sections 302/34 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/-, in default, to further undergo RI for two years. He also convicted appellants Puneet Mehta and Naresh Kumar under Section 302 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs.2000/- each, in default, to further undergo RI for two years. All the three appellants were also convicted under Section 392 I.P.C. and sentenced to undergo RI for seven years and to pay a fine of Rs.1000/- each, in default, to further undergo RI for one year.

The prosecution case is unfolded by the statement of Karam Singh Sarpanch Ex.PL given to Inspector Lehmber Singh, S.H.O. Police Station Nurpur Bedi at Jhaj Chowk. Karam Singh stated that he resides in Village Kalma and is Sarpanch of the village. On 18.6.2000 at about 12 noon, he was present in his house and he came to know that the dead-body of an unknown person was lying in the ditches near the Moranwala Dhaba which is situated about 250 yds. on the western side of the road. Karam Singh along with Joginder Singh Panch and Sarwan Kumar reached the spot and saw the dead-body of an unknown person lying in the ditches. It had a number of injuries on the body. The deceased seemed to be about 24-25 years of age, height 5'-4". He was clean shaven and strongly built. The deceased was wearing a white gray colour baniyan and green colour terricot pant. It seemed that some unknown person/persons had murdered the unidentified person and thereafter thrown his body in the ditches. Kirpal Singh Sarpanch left Sarwan Kumar and he along with Joginder Singh Panch went to the police station to lodge the report. On the basis of this statement, F.I.R. Ex.PL/3 was recorded and the special report was sent to the S.D.J.M. on the same day i.e.

18.6.2000 at 5.45 p.m.

The prosecution to prove its case brought into the witness-box Dr.Guriqbal Singh PW-1, Jagtar Singh PW-2, Roshan Lal PW-3, Param Ram PW- 4, Constable Sarup Singh PW-5, Kuldip Singh PW-6, Ram Kishan PW-7, Karan Singh ASI PW-8, Nitu Verma PW-9, Varinder Kumar PW-10, MHC Randhir Singh PW-11, Karam Singh PW-12, Sher Singh PW-13, HC Raghbir Singh PW-14, Inspector Lehmber Singh PW-15 and SI Vinod Singh Sirohi PW-16.

Learned counsel for appellant Puneet Mehta, Shri R.P.S.Athwal, Advocate has argued that the last seen evidence as spelt out by Ram Kishan PW-6 is not believable. D.D.R. No.7 dated 20.6.2000 Ex.PR, does not mention the name of the accused. Statement under Section 164 Cr.P.C. of Varinder Kumar PW-10 which was recorded by the police was recorded on 6.9.2000. Varinder Kumar PW-10 as per the prosecution case, came in the custody of the police after 3 days of the occurrence. There are glaring discrepancies between the statement given by Varinder Kumar PW-10 under Section 164 Cr.P.C. and his statement given on oath before the Court. In the Inquest Report Ex.PC/1, names of the accused have not been disclosed and as per Ex.PC/2, only the statement of Gurnam Singh witness in the inquest report has been attached. There is no statement of Ram Kishan PW-7 with the inquest report. Though the statement of Ram Kishan PW-6 has been exhibited as PC/3, but it cannot be found anywhere on the record. As per the Investigating Officer SI Sher Singh PW-13, the deceased did not have any shirt when his body was recovered. Dr.Guriqbal Singh PW-1, has opined that a shirt was handed over to him, it being that of the deceased.

Learned counsel has further argued that there are 35 stab injuries on the person of the deceased. It is strange that the appellants did not harm Varinder Kumar PW-10, who allegedly was seeing the murder taking place. Varinder kumar PW-10 would also not have been spared if he had been along with the deceased.

He is a planted witness. Varinder Kumar PW-10 was not harmed, but was told to go back after he was given Rs.50/- to buy his ticket. Appellants, if they had been criminals, would not have let Varinder Kumar go back to tell the story of the murder of Harmesh Kumar to his father Ram Kishan PW-7 and the police. The Investigating Officer Inspector Lehmber Singh PW-15, has stated that the place of recovery is very easily accessible. Place of recovery of dagger Ex.P1, was also very easily accessible. Appellants would not have thrown the dagger on the road side, so that everyone could easily see it. Ram Kishan PW-7 has stated that he works as a Mason. If he had been working as a Mason, then he would not have been with the deceased when the Taxi of the deceased was hired. Varinder Kumar PW-10 has stated in his testimony that they crossed two rivers i.e. Sutlej and Yamuna. There was no need for the appellants to throw the body on the road side, but they could have easily disposed it of by throwing the body into these rivers.

As per the prosecution case, injuries were inflicted on the deceased when he was made to sit at the rear seat. No blood stains were found in the vehicle allegedly used by the appellants. The vehicle was impounded as per the statement of SI Vinod Singh Sirohi, S.H.O., Police Station Kutubsher (PW-16). Recovery memo of the Tata Sumo is Ex.PW.

Learned counsel for appellants Naresh Kumar and Davinder Kumar alias Bunti Shri H.P.S.Aulakh and Mrs.Simsi Dhir, Advocates have adopted the arguments of Shri R.P.S.Athwal, Advocate.

Learned counsel for appellant Naresh Kumar has added that the site plan Ex.PS was prepared and the body was recovered on 18.6.2000. It was day time and it is strange that no one saw the body till 12 noon. It was lying 2-1/2 feet away from the road as per the statement of Investigating Officer Inspector Lehmber Singh PW-15. Inspector Lehmber Singh PW-15 has not said anything regarding the clothes of the deceased being blood-stained. Kedar Nadh was a very material witness qua recovery of Kirpan Ex.P1, but was given up by the prosecution as being unnecessary.

Learned counsel for the State has argued that statement of Varinder Kumar PW-10 under Section 164Cr.P.C. and the last seen evidence of Ram Kishan PW-7 and the testimony of Varinder Kumar PW-10 in Court fully prove the case of the prosecution. There are no infirmities in their statements. Ram Kishan PW-7 has categorically stated that the appellants had taken the Taxi on hire and Varinder Kumar PW-10 was taken along by deceased Harmesh Kumar as a Helper. The body of the deceased was recovered and identified by Ram Kishan PW-7 and Gurnam Singh. Probably the intention of the appellants was to sell the Tata Sumo to the acquitted accused Tejinder Singh. Varinder Kumar PW-10 has no animosity with the appellants to falsely implicate them.

We have heard the learned counsel for the parties and perused the record with their assistance.

On 17.6.2000 at 2 p.m. appellants hired a Tata Sumo which was owned by Ram Kishan PW-7 and was driven by deceased Harmesh Kumar from the Taxi Stand Garshankar. Ram Kishan PW-7 on 17.6.2000 at about 1.30 p.m.

was contacted by the appellants for hiring the Tata Sumo. He knew the appellants earlier. The vehicle was hired to go to Anandpur Sahab and Naina Devi. On 18.6.2000 when Ram Kishan PW-7 reached Kalma turning, they saw some persons and some policemen standing on the road side. On stopping, they saw the dead- body of Harmesh Kumar lying on the side of the road. Varinder Kumar PW-10 came back after 3/4 days. The Tata Sumo was taken into possession as per the statement of SI Vinod Singh Sirohi, S.H.O. Police Station Kutubsher ( U.P.) PW-16 that at about 5 a.m. on 22.6.2000 coming from the side of Mandi, it was driven by Tejender Singh who is a resident of Saharanpur. Tejender Singh, the acquitted accused was interrogated and he stated that the Tata Sumo was handed over to him by appellant Puneet Mehta for concealment. SI Vinod Singh Sirohi, S.H.O. of Police Station Kutubsher (PW-16) informed Police Station Nurpur Bedi about the taking into custody of the Tata Sumo and that an F.I.R. Ex.PW had been registered at Police Station Kutubsher.

Similarly, Varinder Kumar PW-10 has stated in his testimony before the Court that Harmesh Kumar was known to him. On 17.6.2000 Harmesh Kumar asked him to accompany him to Anandpur Sahab along with some passengers. The passengers were appellants Puneet, Devinder Kumar alias Banti and Naresh Kumar. After visiting Anandpur Sahab and Naina Devi, appellants along with deceased Harmesh Kumar and Varinder Kumar PW-10 started towards Garshankar.

When they reached near Kolan Wala Tobha, Puneet got the vehicle stopped and there they had liquor. When they reached near the bridge of river Sutlej, the vehicle was again stopped by Puneet Mehta to answer the call of nature. They again started and after some distance appellant Naresh on the pretext that he was not feeling well, had the Tata Sumo stopped again. Appellants came down from the vehicle and talked to each other. Thereafter appellant Davinder Kumar alias Bunti came to the vehicle and he pressed the neck of Varinder Kumar PW-10 and gave him a blow also. A knife was placed on his abdomen and at the same time, appellant Puneet Mehta gave a knife blow to Harmesh Kumar. About 30/35 injuries were inflicted. Varinder Kumar PW-10 became unconscious because of the pressing of his throat. Thereafter the appellants along with Varinder Kumar went to Saharanpur and on the way they threatened him, that if he told anyone about the murder of Harmesh Kumar, he would also meet the same fate. Tejender Singh the acquitted accused met them at Saharanpur and a deal of Rs.90,000/- was struck to sell the Tata Sumo. On the third day, the appellants let Varinder Kumar PW-10 free and he came back to Jagraon from where he gave a telephone call to Garshankar. Inspector Lehmber Singh of Police Station Nurpur Bedi interrogated him, but it came out that Varinder Kumar PW-10 was not involved in the commission of the offence, but was also a victim.

Similar is the statement Ex.PZ/1 given under Section 164 Cr.P.C. by Varinder Kumar PW-10 on 6.9.2000 before the J.M.I.C., Anandpur Sahab.

Statement of Ram Kishan PW-7, the last seen evidence and the eye-witness account given by Varinder Kumar PW-10 and his statement under Section 164 Cr.P.C. are truthful and inspire confidence. The medical evidence corroborates the ocular account.

We do not find any infirmity in the judgment of the learned trial Court.

All the three appeals are dismissed.

( MEHTAB S.GILL )

JUDGE

( BALDEV SINGH )

December 11, 2006 JUDGE

GD

WHETHER TO BE REFERRED TO REPORTER? YES/NO


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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