Punjab-Haryana High Court
Ashok vs State Of Haryana on 5 October, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
CRA-D-1073-DB of 2007 & Crl. Revn. No. 381 of 2008 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Criminal Appeal No. D-1073-DB of 2007
Date of decision: October 05, 2013
Ashok
....Appellant
Versus
State of Haryana
....Respondent
Criminal Revision No. 381 of 2008
Date of decision: October 05, 2013
Satpal
....Petitioner
Versus
State of Haryana and another
....Respondents
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice Fateh Deep Singh
1. Whether the Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
Present: Mr. J.S. Yadav, Advocate for the appellant in
CRA-D-1073-DB of 2007
Mr. Pardeep S. Poonia, Additional Advocate General, Haryana
None for the petitioner in Crl. Revision No. 381 of 2008
Tiwana Dalbir Singh
2014.01.10 12:38
I attest to the accuracy and
integrity of this document.
High Court, Chandigarh
CRA-D-1073-DB of 2007 & Crl. Revn. No. 381 of 2008 2
Fateh Deep Singh, J.
The above detailed two matters, one pertaining to appeal by convict appellant Ashok and another by way of Criminal Revision by complainant Satpal against acquittal of accused Satbir being an outcome of common judgment and order of sentence dated 12/13.11.2013 of the court of learned Additional Sessions Judge, Rewari are being disposed of by this common judgment.
Initially on the statement of Satpal complainant Ex. PA made on 11.11.2005 around 6.30 PM before SI/SHO Ram Avtar PW16 the present case by way of FIR Ex. PA/1 was got registered. In his statement complainant stated that deceased Ishwar was his elder brother, an agriculturist by profession and on 10.11.2005 while the complainant after performing his duty around 3 PM reached Rewari, met Madan Lal and thereafter both of them on account of non-availability of a conveyance started on foot from Siha Bus Stand towards village Khaleta and when they reached near the Phirni of village Lohana, it was 10.30 PM. They heard noise and cries. The complainant stated that when they rushed towards the place, saw a vehicle make Tata-407 bearing registration No. HR-47-8989 was parked and its driver Ashok was sitting on the driver seat and was telling his co-accused Satbir and Kalia to drag the deceased Ishwar and throw him under it so that he is able to run over the vehicle and right in their presence the accused had mowed down his brother under the tyres of the Tiwana Dalbir Singh 2014.01.10 12:38 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-1073-DB of 2007 & Crl. Revn. No. 381 of 2008 3 vehicle and seeing the witnesses, the accused ran away from the spot. The motive for this murder was money dispute between Ishwar and the accused Ashok. The Investigating Officer after examining this place prepared rough site plan Ex. PL and from search of the pocket of the dead body found a piece of paper which was taken into police possession through memo Ex. PE. The dead body was got photographed from Ram Rattan PW13. From the place of occurrence the Investigating Officer lifted blood stained earth through memo Ex. PB and impounded the vehicle along with its RC through memo Ex. PD. The vehicle was got mechanically checked from PW9 Shyam Kishore. Thereafter police request by way of Ex. PK/1 was made and Dr. Chander Shekhar PW12 conducted the post mortem examination on the dead body and gave his report Ex. PK as to the cause of death. The belongings of the dead body were taken into police possession and on receipt of report of Chemical Examiner Ex. PJ, Forensic Science Laboratory Ex. PX and PY and on completion of investigation challan was presented against the three accused namely Ashok, Satbir and Anup alias Kalia. Accused Anup alias Kalia being juvenile, his trial was separated from that of the accused.
Upon necessary formalities the accused were put to trial wherein the prosecution examined 16 witnesses. Thereupon through impugned judgment accused Satbir was acquitted whereas accused Ashok was held guilty and sentenced as follows:-
Tiwana Dalbir Singh 2014.01.10 12:38 I attest to the accuracy and integrity of this document. High Court, Chandigarh
CRA-D-1073-DB of 2007 & Crl. Revn. No. 381 of 2008 4 "To undergo rigorous imprisonment for life and to pay fine of Rs 5000/-. In default of payment of fine, to further undergo RI for two months."
In the light of the submissions of Shri J.S. Yadav, counsel for the appellant, the occurrence as per testimony of PW1 has taken place at a public place on the main road which is well detailed by the scaled site plan Ex. PC proved to have been prepared by PW3 Dharampal as well as rough site plan prepared by the Investigating Officer by way of Ex. PL. The only witness to this occurrence is PW1 complainant Satpal real brother of deceased and Madan Lal PW2 who happens to be brother-in-law of the deceased. The contentions of appellant's counsel that Satpal is working in a private Undertaking at Manesar and resides in village Khaleta is not at all disputed on behalf of the State and as such as has been pointed out in the cross-examination of this PW, it comes that the shortest route from Rewari to village Khaleta is through village Budoli via Mohindergarh road and accepts that his statement that Bus Stand Siha is 20 kms from Rewari is wrong and distance between Rewari and Siha is 17 kms and therefore, presence of this witness who is highly interested certainly needs to be taken with a pinch of salt. Further more PW2 belongs to village Kamalpur and in his cross-examination accepts that he carries on the work of selling milk on bicycle and which he does in the morning as well as in the evening and that PW1 had met him in the market of Bawal Chowk, Rewari around 7.00 PM and claims to have left his bicycle and drums in a shop of Chacha Tilak. Thus, it gives an insight into the likelihood of PW2 being present at the place of the occurrence. Though Shri Pardeep S. Poonia, learned Tiwana Dalbir Singh 2014.01.10 12:38 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-1073-DB of 2007 & Crl. Revn. No. 381 of 2008 5 Additional Advocate General has sought to contend that there is nothing unusual for PW1 and PW2 who are close relations to have planned after their task to go to village Siha in the night but having regard to the fact as has been contended by Shri Yadav, the conduct of these witnesses during their presence at the time of the occurrence needs to be gone into. Though PW1 demonstrates his presence at the time of occurrence but when confronted as to the manner of his travelling to the place of occurrence which he claims by means of a bus but has been unable to show any ticket for it and further more it has come in his cross-examination that they were at a distance of 1/1.5 killas when they heard the noise and when Ishwar was brought out from the truck they were at a distance of half killa. Thus, it is impossible to observe a person at dark night such a happening from such a great distance and claims that tyre of the truck was running over the head of Ishwar who was lying horizontal to the truck. This witness elaborated further that Ishwar was dragged out of the Tata truck by Satbir holding his legs and Kalia holding his hands. Thus, to the mind of this Court it is highly unplausible to see such an incident in detail from far off place as claimed by this witness. Similarly other witness PW2 admits that they were at a distance of half a killa when incident had taken place certainly is highly un- acceptable and unplausible version especially when they admit that throughout the night the dead body was lying on the road. It is established very much on the record that the occurrence has taken place around 10.00 PM on 10.11.2005 and the FIR has been got registered next day i.e. Tiwana Dalbir Singh 2014.01.10 12:38 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-1073-DB of 2007 & Crl. Revn. No. 381 of 2008 6 11.11.2005 at about 6.30 PM after a delay of almost more than 20 hours certainly poses a big question mark over the veracity and truthfulness of these witnesses. In these days of fast communication it cannot be accepted that after the incident these two eye witnesses who were close relations of the deceased kept mum and did not make any effort to either inform the family relations or the police throughout the night till the next evening and which certainly pricks the judicial conscience that all was not well with the prosecution.
No doubt PW12 Dr. Chander Shekhar has proved through post mortem report Ex. PK the injuries on the dead body of Ishwar and as per his testimony there is a lacerated wound on the left chin, reddish brown abrasions on the right forearm and elbow, multiple brown reddish abrasion on the left thigh and left leg, multiple brown reddish abrasion over right knee and punctured wound over left lower leg and reddish brown abrasion over right axilla and over bilateral chest and abdomen. The doctor in his cross-examination has stated that there was no crush injury on the dead body of the deceased. No tyre marks were observed on the body of the deceased. Thus emphatically makes it clear that the eye witness account so spelled out by PW1 and PW2 is totally in contrast to this medical evidence and what has been stated by these PWs is devoid of truth. Though the Chemical Analysis of the viscera Ex. PJ did not detect any poison and Forensic Science Laboratory report Ex. PX and PY shows that there was human blood on the garments of the deceased and it is rightly contended on behalf Tiwana Dalbir Singh 2014.01.10 12:38 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-1073-DB of 2007 & Crl. Revn. No. 381 of 2008 7 of the appellant that they do not dispute as to the death of the deceased and which they claimed to be on account of an accident. The recovery of blood stained chit regarding sale of gwara Ex. PE and also proved by SI Ram Avtar does not in any manner advances the case of the prosecution. The recovery of vehicle and the RC through memo Ex. PD by SI Ram Avtar at the most shows the involvement of the vehicle but not suggestive of the fact that the deceased was put to death by crushing him beneath this vehicle. To the very query of the Court, learned Addl. AG was clearly at loss of words as to by what evidence the prosecution has proved the blood on the tyres of the vehicle. The tyre marks on the road as it is in all likelihood that after crushing a person tyre marks on account of blood stains ought to be there and which the Investigating Officer has failed to prove on record. Testimonies of PW5 HC Sajjan Singh, PW6 HC Bhagwan and PW4 ASI Desh Raj are mere formal in nature and that too of PW10 C. Sandip Kumar and PW11 C. Sanjay Kumar by way of affidavits Ex. PG and PH respectively.
The only semblance of evidence that has come is through testimony of PW8 Dashrath Singh who has only seen that the deceased and the two accused had alighted from the truck in his presence and this witness in his cross-examination accepts that he is the maternal uncle of the widow of Ishwar and has not given any leads into this occurrence. The deposition of PW15 Vidhya has not much to offer except the motive that there was some money transactions between accused and the deceased and when Tiwana Dalbir Singh 2014.01.10 12:38 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-1073-DB of 2007 & Crl. Revn. No. 381 of 2008 8 confronted with the statement Ex. DB accepts that she has not mentioned that there was dispute of Rs 1,25,000/- between them. The statement of PW16 SI Ram Avtar is only to the investigation mere formal in nature and that too of C. Sanjay Kumar PW14.
Thus evaluating the evidence of the prosecution it clearly emerges that the presence of PW1 and PW2 at the time of occurrence is highly doubtful and the mode of this murder as spelled out by them stands improbalised thus casting another set back to the prosecution version. The learned trial court has taken a pure lackadaisical approach in this matter inspite of the fact that in the defence evidence DW1 Sumar Singh Ex. Sarpanch, DW2 Jagdish Sarpanch and DW3 Balbir Singh Sarpanch of the villages have testified in no uncertain terms that it was on account of an accident unclaimed body was lying in the area of village Siha and it was on the next day morning the body was identified, appears to be more plausible and acceptable. Thus, there has been misconstruing of the evidence by the learned trial court and by this mis-interpretation has come to a wholly unjustified conclusion. The prosecution story is based on surmises and conjectures creating strong suspicion and doubt over its veracity. Since suspicion cannot take place of proof, therefore, keeping in view the evidence of the prosecution which falls within the realms of suspicion, we give benefit of doubt to appellant Ashok and thereby accept this appeal setting aside the judgment and order of conviction. In the light of what has been Tiwana Dalbir Singh 2014.01.10 12:38 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-1073-DB of 2007 & Crl. Revn. No. 381 of 2008 9 detailed above finding the prosecution version to be devoid of truth, we are not inclined to allow the revision which also stands dismissed.
(Hemant Gupta)
Judge
(Fateh Deep Singh)
October 05, 2013 Judge
'tiwana'
Tiwana Dalbir Singh
2014.01.10 12:38
I attest to the accuracy and
integrity of this document.
High Court, Chandigarh