Punjab-Haryana High Court
State Of Haryana vs Rohtash And Others on 8 August, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Criminal Appeal No.130-SBA of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Appeal No.130-SBA of 2002
Date of Decision:08.08.2013
State of Haryana .....Appellant
Versus
Rohtash and others .....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Gourav Verma, Assistant Advocate General,
Haryana, for the appellant-State.
Mr.N.S.Shekhawat, Advocate,
for the respondents.
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MEHINDER SINGH SULLAR , J.(oral) The matrix of the facts and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of the instant appeal filed by the State of Haryana and emanating from the record, as claimed by the prosecution, is that complainant-Jai Parkash (PW7) was working as a over halt agent on commission basis at Railway Station, Nava, District Narnaul. On 14.07.1999 at about 4.45 AM, as soon as he was issuing tickets to the passengers in the booking office of Railway Station, Nava, in the meantime, respondents-accused Rohtash armed with 'lathi' & brick, his brother Sompal and son Matu Singh(for brevity "the accused") armed with 'lathis' entered into the booking office. Accused-Rohtash asked the passengers to go outside and attacked the complainant. When he tried to escape, then the accused Rohtash gave a brick blow, which landed on the backside of his head and on receipt of 'lathi' blow at the hands of Rohtash-accused, he(PW7) felled on the Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 2 ground. Thereafter, all the remaining accused joined and gave severe beatings to him. Although, the occurrence was stated to have been witnessed by his brother Jogender Singh(PW8), Mahender son of Kailash and Pit Ram son of Mahabir, (PW9), but nobody intervened to save him. He became unconscious. At about 5.00 AM, another train arrived at the Railway Station and then TTEs Om Parkash & Brahm Parkash and CTI Amar Singh alighted from the train. They removed the injured to the Civil Hospital, Mohindergarh. Before taking to hospital, he was taken to the Police Post, GRP Mohindergarh, where his statement(Ex.PG) was recorded by ASI Sajjan Singh(PW10). He made his endorsement (Ex.PG/1) and sent it to the Police Station, GRP Rewari for registration of the case.
2. Levelling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that on 14.07.1999, the accused assaulted, used criminal force, caused multiple injuries to deter the complainant from discharging his official duty. In the background of these allegations and in the wake of statement(Ex.PG) of the complainant, the present criminal case was registered against the accused, vide FIR No.182 dated 14.07.1999, on accusation of having committed the offences punishable under Sections 332, 333, 353, 452 and 34 IPC, by the police of Police Station GRP, Rewari, in the manner depicted here-in- above.
3. After completion of the investigation, the final police report (challan) was submitted against the accused by the police to face the trial for the pointed offences.
Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 3
4. Having completed all the codal formalities, the accused were charge-sheeted for the commission of offences punishable under Sections 332, 333, 353, 452 read with Section 34 IPC by the trial Judge. As they did not plead guilty and claimed trial, therefore, the case was listed for evidence of the prosecution.
5. Sequelly, the prosecution, in order to substantiate the charges framed against the accused, examined PW2 Dr.Gajraj Singh, who has medico legally examined Jai Parkash, injured, by way of MLR(Ex.PB) and found the following injuries on his person:-
"1. A lacerated wound of size 3x0.5 cm was present on left mastoid region. It was red in colour.
2. A bruise of size 2x2cm was present on right side face zygomtic region. It was red in colour.
3. Complaint of pain in right lower canine with corresponding injury on a inner aspect of lower lip i.e. a bruise of size 1.5x1cm. It was red in colour.
4. A bruise of size 12x2.5cm was present on left side of chest posteriority with small multiple bruises also. The measured bruise was situated on lower 1/3rd region. It was red in colour.
5. A bruise of size 10x2cm was present on left side of chest anteriorly 5cm above the nipple extending upto mid auxillary line.
6. An abrasion of size 3x2cm was present on right shoulder. It was red in colour.
7. A bruise of size 4x4cm was present on left arm middle 1/3rd laterally. It was red in colour.
8. A bruise of size 6x4cm was present on left knee joint anteriorly. It was red in colour.
9. Two parelle bruises of equal sizes i.e. 8x2cm were present on right knee joint medially. They were red in colour."
On police request and on the basis of x-ray report and films, he opined that injury No.8 was grievous in nature, vide opinion(Ex.PC), Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 4 whereas the remaining injuries were declared simple in nature. PW3- Dr.R.A.Gupta radiologically examined the complainant and found fracture of Patella of left knee joint, by means of report(Ex.PD) and x-ray films(Exs.PD/1 to PD/6).
6. Likewise, PW1 ASI Ram Kumar on receipt of statement of the complainant, recorded the formal FIR(Ex.PA). PW4 Constable Raj Kumar prepared the scaled site plan(Ex.PE) of the place of occurrence on the demarcation of PW-Jogender Singh and Jai Parkash sons of Ram Sarup. PW10 ASI Sajjan Singh has maintained on oath that on 14.07.1999, he recorded the statement(Ex.PG) of Jai Parkash, injured, made endorsement(Ex.PG/1) and sent it to the Police Post, GRP Rewari, for registration of the case. He has visited the hospital and took into possession the blood stained clothes of the injured vide recovery memo (Ex.PH). He inspected and prepared the rough site plan(Ex.PK) of the place of occurrence. Then he went to the house of the accused, where Smt.Sreh Kanwar wife of Rohtash, Banwari Lal and Ghisa Ram were present. They told him that complainant-Jai Parkash had trespassed into their house, left behind a pair of shoes & torn shirt. He took into possession the pair of shoes and torn shirt of the complainant into possession vide recovery memo(Ex.PL). PW5-SI Narender Singh is a formal witness, who has only prepared the final police report(challan) under Section 173 Cr.P.C. in this case.
7. The next to note the testimony of PW6 Sat Parkash Verma, who has maintained that he was posted as Station Superintendent of Railway Station, Satnali. Sub-Station Railway, Nava, was under his Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 5 control. Complainant-Jai Parkash was appointed as over halt agent on commission basis by the office of DRM, Bikaner. His job was to purchase the tickets from him and to sell those tickets at Railway Station, Nava on commission basis. An agreement(Ex.PF) to that effect was executed between the complainant and DRM, Bikaner Division. In cross- examination, he has categorically admitted that complainant-Jai Parkash was not the employee of the Railway.
8. Similarly, PW7-complainant Jai Parkash has, inter alia, repeated the same story, contained in his initial version(Ex.PG) and claimed that the accused have caused injuries and deter him from discharging his official duty.
9. The last to mention is the testimony of PW8-Jogender Singh, brother and PW9-Pit Ram son of Mahabir, relative of the complainant. They have deposed that on 14.07.1999, they were present at Railway Station, Nava and noticed that the accused were beating Jai Parkash in a room. After the occurrence, Jai Parkash came out of the room and felled on the ground in verandah. Then all the accused decamped from the place of occurrence.
10. After the close of the prosecution evidence, the statements of the accused were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as envisaged under section 313 Cr.PC. However, main accused Rohtash has denied the prosecution evidence in its entirety and pleaded false implication in the following manner:-
"On 14.7.99 at 5.00 a.m., Jaiparkash tres-passed our house after Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 6 scaling a wall with a view to commit a crime and he was seen by Matu Singh who cried chor chor. On hearing the cries, Rohtash woke up and Banwari s/o Jagmal Singh, Kapur Singh s/o Dharma were also attracted to the spot and Jaiparkash managed to escape and while he was fleeing someone gave brick-bat to him and Jaiparkash threatened with dire consequence if the matter is reported to the police. A case under Sections 451/325/506 IPC vide FIR No.58 dated 20.7.99 was registered in police station, Satnali regarding this occurrence. While fleeing Jai Parkash left his shoes and shirt behind and fell down on a rocky surface and received more injuries. A Panchayat was convened and in that Panchayat father of Jaiparkash tendered apology for the act of the complainant and as a counter-blast the complainant has got registered this false case."
11. Sequelly, the same line of defence was adopted by the remaining accused. They in order to prove their defence version, examined DW1-Constable Satpal, who has proved the copy of FIR No.58 dated 20.07.1999(Ex.DF) under Sections 451, 323 and 506 IPC, pertaining to the Police Station Satnali, in which, final police report (challan) has already been submitted in the Court of Area Magistrate against complainant-Jai Parkash son of Ram Sarup. DW2-Parbhati Lal, Sarpanch of Village Gram Panchayat, Nava, has stated that on 14.07.1999, a Panchayat was convened and accused-Rohtash had complained that on that day at about 4/4.30 AM, complainant-Jai Parkash son of Ram Sarup has trespassed into their house with ulterior motive. Jai Parkash was called in the Panchayat, but he was not available. His father attended the Panchayat proceedings and showed his ignorance. However, he felt sorry on behalf of his son(complainant) for his illegal act. He further maintained that there was a general practice in the area to solve such like disputes at Panchayat level. This is the entire evidence Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 7 brought on record by the parties.
12. Taking into consideration the entire evidence brought on record, the trial Judge has acquitted the accused, by virtue of impugned judgment of acquittal dated 07.02.2001.
13. Aggrieved thereby, appellant-State of Haryana has preferred the instant appeal, to challenge the impugned judgment of acquittal. That is how, I am seized of the matter.
14. What cannot possibly be disputed here is that all the cogent cardinal fundamental principles and basic rules of criminal law/jurisprudence, have to be kept in focus while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against him. The criminal proceedings require strict proof of guilt. It is the legal evidence, on the basis of which, the decision of a criminal court is based and is the legal requirement of criminal justice. Otherwise, in the absence of cogent substantive evidence, the Courts have no option, but to record an order of acquittal howsoever painful the same may be.
15. At the same time, it is well settled principle of law that in case of judgment of acquittal, the appellate Court should give proper weightage and consideration to the views of the trial Judge as to the credibility of the evidence, the presumption of innocence in favour of the accused, particularly when he was acquitted by the trial Court and his Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 8 rights of benefit of any doubt. The appellate Court should be slow in disturbing a finding of fact arrived at by the Judge, who had the advantage of observing the conduct & demeanor of the witnesses in the Court, the appellate court can only interfere, in case the judgment of acquittal is palpably wrong, totally ill-founded, wholly mis-conceived, based on erroneous analysis of evidence, non-existent material demonstratively un-sustainable, perverse and on very substantial and compelling reasons. Reliance in this regard can be placed on the judgment of Hon'ble Apex Court in case Ghurey Lal v. State of U.P. 2008 (10) SCC 450.
16. As indicated here-in-above, the prosecution claimed that the accused have assaulted, used criminal force and caused multiple injuries to deter the complainant(public servant) from discharging his official duty and they were charge-sheeted for the commission of offences punishable under Sections 332, 333 and 353 IPC, which postulate and deal with deterrence of public servant from the discharge of his official duty. In other words, these penal provisions can only be invoked, if the aggrieved/injured person is actually a public servant at the relevant time and not otherwise.
17. Such, thus, being the legal position and evidence on record, now the foremost and important question, which invites immediate attention in this appeal is, as to whether the prosecution has been able to prove that complainant(PW7) was actually a public servant at the time of the occurrence or not?
18. Having regard to the rival contentions of the learned counsel Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 9 for the parties and evidence brought on record, to my mind, the answer must obviously be in the negative, as the prosecution has miserably failed to prove that the complainant was a public servant at the relevant time.
19. As is evident from the record that, the case of the prosecution from the very beginning, even as admitted by the complainant, is that he was working as over halt agent on commission basis. The statement of PW6-Sat Parkash Verma, is very significant and relevant in this respect, wherein, he has stated that he was posted as a Superintendent of Railway Station, Satnali. There is Railway Sub-Station in the name of Nava, which was under his control. The complainant was appointed as halt agent, vide agreement(Ex.PF) by the office of DRM Bikaner. His job was to purchase the tickets from him and to sell those tickets to the passengers at Railway Station, Nava, on commission basis. In cross- examination, he has categorically admitted that Jai Parkash was not the employee of Railway(public servant). That means, the prosecution has badly failed to prove that the complainant was a public servant. On the contrary, it is established on record that he was just a halt agent and was selling the tickets to the passengers on commission basis. Once, it is proved that the complainant was not at all the public servant at the relevant time, in that eventuality, to me, the accused cannot legally be charged/convicted for the commission of offences punishable under Sections 332, 333 and 353 IPC. They were not charge-sheeted for any other offence, except the indicated offences.
20. This is not the end of the matter. The story of the prosecution is highly improbable. It is very difficult to consume that the Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 10 accused would dare to enter the Railway ticket office and accused- Rohtash would cause injuries to the complainant, with the brick and lathi, that too in the presence of 50-60 passengers. Again, it does not appeal to reason that no passenger would intervene and save the complainant from the accused. In addition to it, according to the prosecution that PW8- Jogender Singh, brother of, and PW9-Pit Ram, relative of the complainant, had also witnessed the occurrence. They neither intervened to free him from the clutches of the accused, nor removed him in an injured condition to the hospital, for the reasons best known to them, which is against natural human conduct. The injured was stated to have been removed to the Police Post, at the first instance and then to the hospital by TTEs Om Parkash & Brahm Parkash and CTI Amar Singh, who have alighted from the train, which reached at the Railway Station at 5.00 AM on that day. They were the most relevant and important witnesses, to corroborate the statement of the complainant. The prosecution has neither examined them, nor any cogent explanation is forthcoming on record. In other words, the prosecution has withheld the best possible evidence, for the reasons best known to it. Hence, an adverse inference against it is inevitable in this relevant connection. It renders the prosecution story deeply doubtful.
21. Moreover, according to PW7 and PW9, blood oozed out from the injury caused by the accused, had fallen on the floor of the booking office. But this fact is stoutly denied by the investigating officer (PW10), wherein, he has maintained that no blood was found spilled on the ground. PW7 claimed that the occurrence had taken place inside the Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 11 office room and after receipt of injuries, he felled on the floor of the booking office itself, whereas PW8 has admitted that the injured felled on the ground in verandah, from where, he picked him to remove to the Civil Hospital, Mohindergarh. PW9 has also stated that the accused caused injury to the complainant inside the booking office. But as per site plans (Exs.PK and PE), the place of occurrence is shown on the platform and not in the booking office. According to PW8, the injured was taken to the Police Post, GRP,Mohindergarh, before removing him to the hospital.
22. Above all, during the cross-examination, PW8 has admitted in his statement(Ex.DA) that when he reached at the platform, 50-60 passengers were present there and they told him that the accused had assaulted his brother. Similarly, PW9 has stated that he was sitting on the bench, when all the accused came there. He has also admitted that complainant-Jai Parkash was not visible from the place, where he was sitting. He kept standing at a distance, when the accused were inflicting injuries on the person of the complainant. That means, PW8 and PW9 did not actually witness the occurrence. They were not present at the spot. If, they were present at the spot, then their natural conduct would have been to quickly intervened in the matter to save the complainant from the clutches of the accused and then to remove him to the hospital. They have not shown the required prudence, which a normal person is expected to demonstrate in the ordinary and natural course of the events. They were subsequently introduced by the prosecution at a later stage. So, no implicit reliance can be placed on the statements of PW7 to PW9. Moreover, the prosecution has concealed the origin of the occurrence. Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 12 Therefore, presence of the witnesses at the place of occurrence is doubtful and defence version is probable.
23. Likewise, there is yet another aspect of the matter, which can be viewed entirely from a different angle. The case/defence of the accused from the very beginning was that on 14.07.1999 at about 4.30 AM, the complainant had trespassed into their house by scaling over the wall, to commit some crime. He was noticed by Matu Singh, who raised the noise "chor chor". On hearing the noise, accused-Rohtash woke up. Banwari son of Jagmal Singh and Kapur Singh son of Dharma were also attracted to the spot and the complainant managed to escape. While, he was in a process of fleeing, someone gave brickbat to him, which hit on the backside of his head. Then complainant-Jai Parkash threatened them with dire consequences, if the matter was reported to the police against him. The accused have maintained that they reported this matter to the police, wherein, a criminal case was registered against the complainant, vide FIR No.58 of 1999 under Sections 451, 323 and 506 IPC, by the police of Police Station Satnali regarding this occurrence. While fleeing, Jai Parkash left his shoes and torn shirt in their house and felled on a rocky surface and received injuries. As Panchayat was convened, in which, father of the complainant tendered apology on behalf of his son. DW1-Constable Satpal has duly proved the registration of the case, by way of FIR No.58 of 1999(Ex.DF) against the complainant in Police Station Satnali. He deposed that after completion of the investigation, final police report(challan) has already been submitted against the complainant in the concerned court. DW2-Parbahati Lal, Sarpanch, has Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 13 also duly corroborated the defence version in this relevant context.
24. Not only that, even the complainant while appearing as PW7, admitted in his cross-examination that a criminal case was registered against him, by means of FIR(DF). He was arrested and is facing trial in that case. Similarly, PW10-ASI Sajjan Singh, who is the investigating officer has categorically deposed that on the fateful day, when he went to house of the accused, where Sreh Kanwar wife of Rohtash, Banwari Lal and Ghasi Ram were present. They told that Jai Parkash had trespassed in their house and left behind a pair of shoes and torn shirt, which were presented and were taken into possession, vide recovery memo(Ex.PL). Even the defence version was supported by Banwari Lal and Ghasi Ram in their respective statements(Exs.DC and DD). No explanation, much less cogent, is forthcoming on record to explain the recovery of shoes and torn clothes of the complainant from the house of the accused.
25. The matter did not rest there. It remained an unfolded mystery that as to why the accused would attack the complainant without any rhyme & reason. No motive is forthcoming on record even to suggest remotely, as to why the accused would cause injury to the complainant at Railway Station in the presence of 50-60 passengers. On the peculiar facts, in the special circumstances of the instant case and the specific probable defence put-forth by the accused from the very beginning, the motive was very essential and significant in this relevant connection, which is totally lacking in the instant case.
26. In this manner, it stands proved on record that the instant occurrence has not taken place, in the manner as projected by the Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 14 prosecution. On the contrary, it stands proved on record that the complainant had trespassed the house of the accused, by scaling over the wall, in order to commit some crime at about 4.45 AM. He was noticed by Matu Singh, who raised the noise, which attracted accused-Rohtash and other indicated persons. They tried to apprehend, but the complainant escaped. In the process of escaping, he left his shoes and torn clothes in the house of the accused. So, the possibility of his sustaining injuries by scaling over the wall, or by throwing the brickbat by someone from the crowd, cannot possibly be ruled out. Thereafter, the complainant cooked- up a false version and lodged the report against the accused, after due discussion, deliberation, after-thought and in order to create a false defence of the earlier incident. Hence, the contrary contentions of the learned State Counsel "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
27. Therefore, taking into consideration the highly improbability of the prosecution version, insufficiency, inadequacy, its contradictory evidence, probability of defence evidence and if the totality of facts and circumstances, emerging out from the evidence on record, as discussed here-in-above, are put together, then, to my mind, the conclusion is inescapable and irresistible that the evidence brought on record by the prosecution against the accused falls short, as is required to prove a criminal charge under Sections 332, 333, 353, 452/34 IPC, which entails the acquittal of the accused and the trial Judge has rightly acquitted them in this respect.
28. Meaning thereby, the trial Judge has examined the matter, Rani Seema S 2013.08.19 16:12 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.130-SBA of 2002 15 appreciated the evidence in the right perspective and recorded the cogent grounds in this relevant connection. The learned State counsel did not point out any material, much less cogent, so as to warrant any interference in the impugned judgment of acquittal. Such articulated impugned judgment of acquittal, containing valid reasons, cannot possibly be interfered with by this Court, unless and until, the same is illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned State counsel, so, the impugned judgment of acquittal deserves to be and is hereby maintained in the obtaining circumstances of the case.
29. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
30. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such.
August 08, 2013 (MEHINDER SINGH SULLAR)
seema JUDGE
Whether to be referred to reporter? Yes/No
Rani Seema S
2013.08.19 16:12
I attest to the accuracy and
integrity of this document
High Court Chandigarh