Punjab-Haryana High Court
Jatinder Mohan Singh @ Mohini vs U.T.Chandigarh on 10 May, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No. 188-DB of 2008
Criminal Appeal No.1015-DB of 2009
Criminal Revision No.1679 of 2008
Criminal Revision No.1311 of 2008 1
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:May 10, 2012
Criminal Appeal No. 188-DB of 2008
Jatinder Mohan Singh @ Mohini ......Appellant
Versus
U.T.Chandigarh .......Respondent
Criminal Appeal No. 1015-DB of 2009
U.T.Chandigarh ......Appellant
Versus
Jatinder Mohan Singh @ Mohini and others .......Respondents
Criminal Revision No.1679 of 2008
I.P.Attri ......petitioner
Versus
Jatinder Mohan Singh @ Mohini and others .......Respondents
Criminal Revision No.1311 of 2008
I.P.Attri ......petitioner
Versus
Jatinder Mohan Singh @ Mohini and others .......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Criminal Appeal No. 188-DB of 2008
Criminal Appeal No.1015-DB of 2009
Criminal Revision No.1679 of 2008
Criminal Revision No.1311 of 2008 2
Present: Mr.Vinod Ghai, Advocate,
for the appellant in CRA No.188-DB of 2008.
Mr.J.S.Toor, Advocate
for U.T.Chandigarh.
Mr.APS Deol, Sr.Advocate with
Mr.Vishal Rattan, Advocate,
for respondents in CRA No.1015-DB of 2009.
Mr.I.P.Atre, Advocate in person
in revision petitions
****
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned appeals as well as criminal revisions will be disposed of as these have arisen out of a common incident/ judgment.
Vide impugned judgment/ order dated 18.1.2008/ 23.1.2008, trial Court convicted and sentenced accused Jatinder Mohan Singh @ Mohni for commission of offence under Section 302, 307 of the Indian Penal Code, 1860 (IPC for short). Accused Paramjit Singh @ Bittu, Jasmeet Singh @ Rocky, Chetinder Pal Singh @ Honey, Gurpreet Singh @ Patty, Jatinder Pal Singh @ Sonu and Ravinder Pal Singh @ Shelly were acquitted of the charges framed against them vide impugned judgment dated 18.1.2008 by the trial Court. Aggrieved by the same, appellant Jatinder Mohan Singh @ Mohni filed Criminal Appeal No.188-DB of 2008. The State has filed Criminal Appeal No. 1015-DB of 2009 challenging the acquittal of six accused by the trial Court. Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 3 Complainant Mr.I.P.Attri has preferred Criminal revision No.1311 of 2008 seeking enhancement of sentence awarded to accused Jatinder Mohan Singh @ Mohni and Criminal Revision No. 1679 of 2008 challenging the acquittal of the six accused by the trial Court.
The controversy involved in the present case is peculiar. Manisha Attri @ Pinky was driving scooter No.PB-W-4633 on the road dividing sectors 23 and 24, Chandigarh. She was hit by car bearing No.DL-01-CD-2853 driven by Jatinder Mohan Singh @ Mohni. Initially the FIR was registered under Sections 279, 337 IPC. On receipt of report of X-ray examination of the injured, offence under Section 338 IPC was added in the FIR. After the death of injured Manisha Attri, offence under Section 304-A IPC was added in the FIR. Thereafter, at the instance of Mr.I.P. Attri, father of deceased, offences under Sections 302 and 307 IPC were added in the FIR.
Prosecution case was set in motion on the basis of the statement of Manisha Attri (Ex.PW-38/A). Injured Manisha Attri stated in her statement before Assistant Sub Inspector Gurbin Singh that on 25.2.1996, at about 12.30 P.M., she was driving her scooter bearing No.PB-W-4633. Her mother Harjit Kaur was sitting on the pillion seat. She was driving the scooter at a normal speed on her correct side of the road. When she reached near the roundabout of sectors 23/24 and 36/37, a Maruti car came from the opposite direction at fast speed. The car was being driven in a rash manner Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 4 and the driver, after bringing the same towards her side, hit his car against her scooter. As a result of this, both the scooter riders suffered injuries. The car driver stopped the car at some distance and disclosed his name as Jitender Mohan Singh. The number of the car was DL-01-CD 2853. Thereafter, the car driver sped away his car from the spot. She was brought to General Hospital, Sector 16, Chandigarh in a car and from there she was referred to PGI, Chandigarh. The car driver had struck against her scooter due to his fast and negligent driving and as a result she, as well as her mother, had suffered injuries.
On the basis of the statement of the complainant formal FIR No.34 was registered at police station West, Sector 11, Chandigarh under Sections 279, 337 IPC.
Challan was prepared qua commission of offence under Section 304-A IPC on 30.3.1996 but the same was not filed in the Court.
On 26.2.1996, Mr.I.P.Attri moved an application (Ex.DD) before Senior Superintendent of Police, Chandigarh seeking re- investigation of the entire case from an impartial officer. It was averred in the application that a young boy of evil nature had intentionally and knowingly struck his car with the scooter driven by his daughter Manisha. As a result of this his daughter and wife had suffered multiple injuries. The Investigating Officer had not visited the spot with a view to help the accused. In fact, it was a case falling Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 5 under Section 307 IPC as the driver of the car had hit the scooter driven by his daughter intentionally. It was not a case of accident as portrayed by the Investigating officer.
Thereafter, another application Ex.DE was submitted by Mr.Attri before Senior Superintendent of Police, Chandigarh on 27.2.1996. It was averred by the applicant that the investigation had not been conducted in a fair and proper manner by Assistant Sub Inspector Gurbin Singh. The Investigating Officer was carrying out the investigation with a view to help the accused persons. The applicant demanded fresh inquiry. It was also mentioned in the application that two brothers had conspired to commit the heinous crime.
Affidavit of injured Harjit Kaur (Ex.DF) was submitted before Senior Superintendent of Police, Chandigarh dated 18.3.1996. The deponent in the said affidavit averred that her statement had not been recorded by the police. Any statement purported to have been made by her before the police was a fabricated document.
Injured Harjit Kaur submitted an application before Inspector General of Police, U.T.Chandigarh (Ex.DB) dated 3.4.1996 stating therein that she knew the accused before the occurrence. The accused had hatched a deep rooted conspiracy to commit her murder, as well as, of her daughter Manisha. Gurmukh Singh, Ramesh Kumar Sukhija (son-in-law of Gurmukh Singh), Jatinder Singh (grand son of Gurmukh Singh), Devinder Singh, Jatinder Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 6 Mohan Singh @ Mohni, Jatinder Pal Singh @ Sonu and Ravinder Pal Singh @ Shelly have conspired with each other and had committed the offence intentionally. All the above seven persons had committed the murder of her daughter after hatching the deep rooted conspiracy. The said persons had enmity against her husband, who had filed a criminal complaint on behalf of the Gaya Parshad against Gurmukh Singh, Ramesh Kumar Sukhija and others. Manisha was also defending a civil suit filed by Ramesh Kumar Sukhija and his wife Ravinder Sukhija against Gaya Parshad on behalf of Gaya Parshad. On 24.2.1996, in the evening accused Jatinder Pal Singh @ Sonu and Ravinder Pal Singh @ Shelly had enquired from her as to whether Manisha would be going to the Courts on Sunday. She had told them in good faith that her daughter would be going to the Court on the next day. On enquiry by Jatinder Pal Singh @ Sonu, Manisha told him that her father would go to Himachal Pradesh as he had to visit their orchard at Fagu. Sonu was known to them and was on visiting terms to their house because his elder brother Gurpreet Singh Saini was a class fellow of the son of the deponent. In order to commit her murder and the murder of her daughter Manisha, accused had come to Chandigarh in car bearing No.DL-1C- D2853. The car in question was being driven by Jatinder Mohan Singh @ Mohni, whereas, the other accused were sitting in the car. At about 1.45 P.M., on 25.2.1996, she was sitting on the pillion seat of the scooter driven by Manisha and they were travelling on road Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 7 dividing sectors 23/24. Jatinder Mohal Singh @ Mohni, after identifying Manisha from the car, went towards Mohali side and then took a turn of the round-about sector 36/37 and 23/24 intentionally and thereafter, struck the car from the opposite direction against their scooter No.PB-W-4633. As a result of this accident, Manisha was thrown on the road. The car was then run over the scooter as well as the lower part of the body of Manisha. Thereafter, all the accused after taking their faces out of the windows declared that the deponent and her daughter had been taught a lesson and sped away towards Sector 16, Chandigarh. The daughter of the deponent had died on 12.3.1996 due to the injuries suffered by her. It was averred that the murder had been committed by the accused persons in pursuance of their common intention/ conspiracy.
Mr. I.P.Attri also moved an application on 3.4.1996 before Inspector General of Police, U.T.Chandigarh, wherein he alleged that in the year 1994, he had filed a complaint on behalf of Gaya Parshad against Gurmukh Singh, Ramesh Kumar Sukhija and others qua fabrication and forgery of sale papers relating to plots No.134 and 135 situated in Rehri Market, Phase IV, Mohali. A couple of meetings had taken place between the parties in the presence of the applicant. Devinder Singh was also present in the meetings along with accused persons and during the course of talks had used threatening language against the applicant. Devinder Singh had declared that he was a person of high connections and would teach a lesson to the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 8 persons pursuing the case of Gaya Parshad. Ramesh Kumar Sukhija and his wife had filed a civil suit to counter the criminal complaint. The said suit was being defended by Manisha. Gaya Parshad being a poor person had left for his village in Uttar Pradesh. Jatinder Singh, grand son of Gurmukh Singh, Jatinder Mohan Singh @ Mohni son of Devinder Singh, Jatinder Pal Singh @ Sonu and Ravinder Pal Singh @ Shelly were friends. The said persons were of questionable characters/ credentials and were taking drugs. All the accused were residing in a close vicinity of each other and were known to each other. Accused Devinder Singh has provided his car for commission of murder of his daughter Manisha and murderous assault on his wife. Devinder Singh had been removed from the post of cashier of Sector 19, Gurudwara Sahib. The applicant had been requesting for fair and proper investigation in the case but the police had not properly investigated the case to help the accused. Hence, it was prayed that offence under Sections 302, 307 and 120-B IPC be added in the FIR.
On 11.4.1996, Sh.I.P.Attri along with some other members of the Bar met Superintendent of Police, Chandigarh requesting that proper investigation be conducted in the case.
Statement of injured Harjit Kaur was recorded during investigation. The said statement is Ex. DQ. A perusal of the same reveals that the injured had stated that on 24.2.1996 at about 6.00 P.M., she had gone to Rehri Market, Mohali along with her daughter Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 9 Manisha. Near the market, they met Rajesh Pal Singh @ Shelly and Jatinder Pal @ Sonu. The said persons inquired from them as to whether Manisha would go to the court on the next day or not. Manisha replied that she was going to Court on next day in connection with some bail matters. Manisha further told them that she would go at 11.00 A.M. and would return back at 2.00 P.M.. On inquiry by Sonu, Manisha told him that her father had gone to Jabli and Fagu and would return back on Sunday. On the next day at about 2.00 P.M., Manisha after doing the court work, was returning along with her on a scooter driven by her (Manisha). They were driving on the road dividing sectors 23-24. A car came from behind in which accused were sitting. The car slowed down near them and one of them said that this girl was advocate and thereafter, the car moved away and after encircling the roundabout of sectors 23/24, 36/37, came back towards their side and struck against their scooter. As a result of this Manisha fell on the bonnet of the car, whereas, she (deponent) fell on the road. Thereafter, the car driver turned the steering and threw Manisha down and moved the car over her body. The boys, who were sitting in the car, were watching through the windows and were saying that they taught them a lesson. Thereafter, the car sped away towards Sector 16, Chandigarh. On 11.2.1996, in the evening she had gone to attend the marriage of Gurpreet Singh @ Happy, who was elder brother of Sonu, along with Manish and her son Boby. The boys namely Jatinder Mohan Singh @ Mohni, Jatinder Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 10 Pal Singh @ Sonu, Satinder Pal Singh, Varinder Pal Singh @ Money, Kanaua, Ravinder Pal Singh @ Shelly, Jasmeet Singh @ Rocky, Gurpreet Singh @ Patty, Paramjit Singh @ Bitu, Yanky and Sonu's other friends were present there. Honey, Kanaua and Bittu were standing near her and her daughter, whereas, Patty, Rocky, Shelly and others were sitting on the roof of the neighbour's house. Honey, Money and Bittu were smoking and were making wrong gestures. Rocky, Patty and Shelly were making bad gestures from the roof of the house. She scolded them and stopped them from making the said gestures and told them to go away. The boys felt bad. Without wasting time, she returned home along with her daughter. Next day she complained qua the occurrence to Sonu's mother. Sonu, Shelly and their parents came to their house and requested not to pursue the present case and accept compensation. However, they had refused to do so.
After completion of investigation and necessary formalities, challan was presented against Jatinder Mohan Singh @ Mohni, Paramjit Singh @ Bittu, Jasmeet Singh @ Rocky, Chetinder Pal Singh @ Honey, Gurpreet Singh @ Patty, Jatinder Pal Singh @ Sonu and Ravinder Pal Singh @ Shelly.
Prosecution in order to prove its case examined 61 witnesses.
Appellant Jatinder Mohan Singh @ Mohni, when examined under Section 313 of the Code of Criminal Procedure, Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 11 1973 (Cr.P.C. for short), after the close of prosecution evidence, submitted in his written statement as under:-
"The correct position is that at about 1 P.M. or so I accompanied by my cousin Harshinder Singh were going from Mohali to Chandigarh in Car No.DL-1CD-2853 driven by me and it was a rainy day due to which the road was wet. The car was at the normal speed as it had just crossed the Batra Chowk and at the time of impact my car was over taking cycle rickshaw whereas, the scooter on which two ladies were coming from the opposite side had also come to the middle of the road while over taking some auto rickshaw. It all happened suddenly and I applied brakes to my car but could not avoid the hitting, inspite of my best efforts. The scooter was coming at quite a fast speed. For a moment I halted my car, then I had to drive it away as the mob came shouting towards me and I got scared that I may not be beaten by the mob. Even the brick bat and some cricket ball was thrown into the front screen of my car as a result of which the glass broke. Neither Manisha nor Harjit Kaur were run over by my car. Manisha had not fallen on the bonnet or the front screen of my car. I did not reverse my car. It is all a matter of chance that the occurrence took place due to the faulty driving of Manisha Attri, Advocate. I later on Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 12 learnt that Manisha expired on 12.3.1996."
The other accused, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, submitted that they were innocent and had been falsely involved in the case.
The accused examined six witnesses in their defence. Learned counsel for the accused have submitted that the statements of the eye witnesses had been recorded much after the accident and hence, no reliance could be placed on the same. All the alleged eye witnesses were interested witnesses and were known to the father of the deceased and had deposed falsely at his instance. Injured Harjit Kaur as well as her husband had been changing their stand from time to time and had been introducing different motives qua the occurrence. In case, there was truth in the version set up by injured Harjit Kaur at a later stage, she could have named the accused in her initial statement as she already knew the accused. The story that the car first crossed the scooter to verify the identity of Manisha and was then again driven back towards them was coined at a later stage. In fact, as per the initial version, there were only two persons in the car. The said version was given by the person, who had taken injured Harjit Kaur to the hospital. The medical evidence did not corroborate the version of the eye witnesses that the deceased had been crushed under the tyres of the car. Appellant Jatinder Mohan Singh @ Mohini had no connection with the other co-accused and they had been rightly acquitted by the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 13 trial Court. In fact, it was a case of accident falling under Section 304-A IPC and not a case of murder or attempt to murder.
Mr.I.P.Attri, who is assisted by the learned State counsel, has submitted that the investigation in the present case had not been conducted in a fair and proper manner. In fact, Manisha or Harjit Kaur had not made any statements before the police. Rather their statements had been forged by the Investigating officer to help the accused. The car and the scooter had been badly damaged which showed that the car had been struck against the scooter intentionally to cause the murder of the scooter riders. The statements of the eye witnesses were not intentionally recorded by the investigating officer. The presence of the eye witnesses at the spot were natural as they were residing/ present in the nearby area. The crush injury on the person of the deceased might not have been visible due to heavy clothing worn by her as it was a winter season. In fact, the ocular version was duly corroborated by the medical evidence. Mr. Attri has further submitted that as per the ocular version, after the car driven by accused Jatinder Pal Singh @ Mohini struck against the scooter driven by Manisha, both the scooter riders were thrown in the air. Harjit Kaur fell on the road, whereas, Manisha fell on the bonnet of the car. Manisha had struck against the front wind screen of the car. Her body was half pushed inside the car due to complete breaking of the front windshield. Thereafter, she was thrown out of the car and was run over by the driver of the car to ensure that she died. The Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 14 number of injuries on the person of the deceased led to the inference that it was a case of murder and not accident. Since the case rests on eye witness account, motive loses its significance. Even other wise, it was difficult for the prosecution to establish motive as it was not possible to spell out as to what was going out in the minds of the accused. The reports of the experts proved on record also corroborated the ocular version that it was a case of murder and attempt to murder. Mr. Attri has further placed reliance on the suggestions given to some of the witnesses by the defence to support his argument that the accused had admitted the commission of crime. No identification parade was necessary in this case as PW Harjit Kaur already knew the accused. Mr. Attri has also placed reliance on the bail applications moved by accused Jasmeet Singh, Paramjit Singh and Gurpreet Singh to substantiate his argument that they had admitted their presence in the car at the time of commission of crime. Further Mr. Attri has stated that in the bail applications filed by the accused, they had admitted their presence at the spot as they had not specifically denied the same but had only stated that there was no evidence available on record against them. No reliance could be placed on the defence evidence as they were all false witnesses. Accused Sonu and Shelly had suffered extra judicial confession before PW-25 Bhuvnendu Pal. In support of his arguments, Mr.Attri has placed reliance on State of Haryana vs. Ram Kumar 2008 (4) RCR (Criminal) 308, wherein, it has been held as under:-
Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 15 "The Court can also draw inference from undisputed facts by virtue of section 114 of the Evidence Act, which empowers the Court to presume existence of a fact which it thinks, is likely to have happened." Mr.Attri has also placed reliance on Anda and others vs. the State of Rajasthan 1966 Crl.L.J. 171, wherein, it has been held as under:-
"The third clause views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature. If the intended injury cannot be said to be sufficient in the ordinary course of nature to cause death, that is to say, the probability of death is not so high, the offence does not fall within murder but within culpable homicide not Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 16 amounting to murder or something less."
Mr.Attri has further placed reliance on Sewa Singh vs. Emperor AIR 1930 Lahore 491, wherein, it has been held as under:-
"Where no sufficient motive for the assault on the deceased is shown the mere fact that the prosecution does not establish any additional motive for the assault cannot be taken as a fatal defect in the prosecution case. The accused may be the only surviving person knowing the cause of enmity with the deceased and the failure of the prosecution to elicit it is not a sufficient reason to disbelieve the eye witnesses."
" The best criterion of the force and character of a blow is to regard the result which it has effected. A person delivering a violent blow with a lethal weapon like a lathi on a vulnerable part of the body as the head must be deemed to have intended to cause such bodily injury as he knew was likely to cause the death of the person to whom the injury was caused."
Mr.Attri has further placed reliance on Gopi Chand vs. Emperor AIR 1930 Lahore 490, wherein, it has been held as under:-
"Intention of the culprits has to be gathered from their acts and all the surrounding circumstances."
Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 17 "Where from the circumstances there can be no doubt that the intention of the accused was to cause the death of a person, they must be assumed to have intended the natural consequences of their act and the burden lies heavily on them to prove that they had some other intention. In absence of any such proof the accused can be held guilty under Section 307."
"If the witness admits to have made the statement the previous statement in writing need not be proved. If he denies to have made any such statement and it is intended to contradict him the relevant portions of the record contrary to his statement in court must be read to him and the witness should be given the opportunity to reconcile the same. It is only after this is done that the record of the previous statement becomes admissible in evidence for the purpose of contradicting the witness and can then be proved in any manner provided by law."
Mr.Attri has also placed reliance on Satpal and others vs. State of Punjab 1995 Supp (4) SCC, wherein, it has been held as under:-
" It was sought to be argued on behalf of the appellants that the learned Courts below failed to notice that the prosecution signally failed to prove the motive ascribed for the alleged murder, thereby making its case suspect. Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 18 Since both the learned Courts below found the evidence of the eye witnesses regarding the actual murder acceptable, the motive and for that matter proof therefor, paled into insignificance."
Mr.Attri has next placed reliance on Basdev vs. State of Pepsu 1956 S.C.488 (AIR V 43 C 84 July), wherein, it has been held as under:-
"Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion."
In the present case initially the investigation was done by treating it as a case of accident. The car driven by accused Jatinder Mohan Singh @ Mohni had struck against the scooter driven by Manisha with Harjit Kaur sitting as a pillion rider. Thereafter, on the applications moved by Mr.I.P.Attri, challan was presented under Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 19 Sections 302/ 307 IPC. Thus, the question that requires consideration in this case is as to whether it is a case of accident, as submitted by the defence or it was a case of murder/ attempt to murder as stated by injured Harjit Kaur.
We have carefully gone through the entire evidence on record. Let us examine the evidence on record to come to the conclusion as to whether it is a case of accident or murder and whether all the accused conspired with each other to commit murder of deceased Manisha and attempted to commit murder of injured Harjit Kaur.
PW-26 Dr.Deepak Bakshi deposed that on 25.2.1996, at about 2.30 P.M., he had medico legally examined Harjit Kaur and had found following injuries on her person:-
"1. Complains of pain in the right leg hip region. Advised X-ray.
2. Lacerated wound 5 cms x .5 cms on the right temporal region. Fresh bleeding present. Advised X-ray."
Both the injuries were blunt in nature. He further deposed that injury No.1 was declared grievous on 26.3.1996 after the receipt of report of radiologist.
PW-28 Dr.Pawan Kumar Bansal deposed that on 12.3.1996, he had conducted postmortem examination on the dead body of Manisha and had following injuries on her person:-
"1. Blackening of both eyes.
Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 20
2. Both the legs were broken i.e. Fracture shaft of femur.
3. Abrasion right shoulder joint with fracture shaft humerus.
4. 4 x 4 cm deep wound on right forearm.
5. Multiple abrasion all over the body.
6. Swelling on the left hand with fracture both bones.
On opening the body, the following internal injuries were present:-
1. Fracture right tempro occipital bone present meninges congested on cut section of the lungs blood mixed with the pus comes out.
2. Fracture and dislocations. Fracture shaft, femur both legs.
3. Fracture shaft humerus with fracture patella left.
4. Fracture ischiopubic bone, fracture left hand.
In his opinion the cause of death was septicemia due to multiple injuries suffered by her, which were sufficient to cause death in the ordinary course of nature.
The present case rests on eye witness account. Let us examine as to whether the statements of the eye witnesses qua the manner of occurrence inspire confidence especially when the version that it was a case of murder was brought in by the complainant after a long delay. It would be necessary to examine the effect of delay in putting forth the version qua murder by the complainant party. There Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 21 is no dispute that every delay in lodging of the FIR may not be fatal to the prosecution case if there is a plausible explanation for the same. However, where the delay in setting up a particular version by the complainant party is not duly explained then the same leads to the inference that the said version is a result of deliberations, consultations and the possibility that a confabulated version has been put forth cannot be ruled out.
In the present case, initially Assistant Sub Inspector Gurbin Singh had recorded the statement of the deceased. The said statement is Ex.PW-38/A on record and it was recorded on 6.35 P.M. on 25.2.1996. The statement of the deceased as recorded by Assistant Sub Inspector Gurbin Singh has already been reproduced above. Mr.I.P.Attri, who is a practicing lawyer and father of deceased Manisha, has vehemently argued that Manisha was not in a position to suffer any kind of statement before the Investigating Officer due to her serious condition. The said argument of Mr.Attri is not substantiated from record. Mr. Attri is not an eye witness to the occurrence. After the occurrence, Harjit Kaur (PW-19) was removed to the hospital by Rajinder Kumar, whereas, Manisha was removed to the hospital by Mrs.Rupan Deol Bajaj (PW-47). The statement of the said witness is relevant as she was the first person who spoke to Manisha while she was being taken to the hospital in her car.
PW-47 Rupan Deol Bajaj deposed that on 25.2.1996, she was coming from her house towards village Daun. At about 2.15 or Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 22 2.20 P.M., when she reached near Balmiki Temple on the dividing road of Sector 23/24, Chandigarh she noticed that there was a large crowd gathered at the spot. She stopped her car and got down to ascertain as to what was the matter. She found a young girl aged 23-24 years sitting on the road with her legs twisted in an odd manner. The girl seemed to be in great pain and was crying. However, no body was coming forward to take that girl to the hospital. With the assistance of her gunman and the other people present at the spot, she took the girl in her car to General Hospital, Sector 16, Chandigarh. The girl appeared to be quite agitated and stated that she had been hit by a blue coloured Esteem car. The girl wanted that the said car be chased. She told the girl to relax and also assured her that she would take care of her till someone from her family arrived in the hospital. The girl was worried about her mother and she told her that nothing would happen to her mother. The girl disclosed her name as Pinky and told her that she was an advocate and further disclosed to her that she was going back home after attending bail matters in the Court. The girl also told her that her father, who was an advocate, was not in town. The girl gave her the phone number of Mr. Marwaha and she informed him qua the accident.
Thus, from the testimony of PW-47, it is evident that Manisha was conscious and was in her senses after the occurrence. It is not the case that Manisha became unconscious after the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 23 accident and hence her statement could not have been recorded by the investigating officer. Ex.PW 57/D is the medical treatment record of Manisha. A perusal of the same reveals that the patient had been brought to the hospital i.e. PGI, Chandigarh with alleged history of road side accident on 25.2.1996 at 1.30 P.M. The patient was conscious and coherent and was complaining of pain in both the legs. Thereafter, the treatment of the injured was started. The statement of Manisha recorded by the investigating officer is duly signed by her. The investigating officer was acting in discharge of his official duty and had no reason to falsely record the statement of Manisha qua the occurrence. Manisha had not disclosed to PW-47 qua the manner of occurrence as putforth by the eye witnesses examined during trial. There was sufficient time available with Manisha to have narrated the manner of occurrence, as disclosed by the eye witnesses, to PW-47 when she travelled in her vehicle to the hospital. Further it is evident from record that Manisha also knew the accused and was a practising lawyer. In case the accused had actually made a murderous attack on her, as alleged by the eye witnesses examined during trial, she would have told the said fact to PW-47 or to the doctor who had intially examined her or to the Investigating Officer. The statement of Manisha was recorded by the investigating officer, Assistant Sub Inspector Gubin Singh at 6.35 P.M. PW-3 Naunihal Singh Gill has deposed that on 25.2.1996, Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 24 on reciept of information qua serious injuries suffered by Mrs. Attri and her daughter Manisha, he reached PGI, Chandigarh at about 6/ 6.30 P.M. At that time the doctor was applying bandage on Manisha. Manisha was crying in pain but she was conscious. The said witness further deposed that Manisha had told the Assistant Sub Inspector that while she was going on the scooter, one Maruti car of blue colour had come from the opposite direction abruptly towards her side and had struck against her scooter. She fell down and had been run over by the car. Thus, as per PW-3, Manisha had made a statement before the Assistant Sub Inspector in his presence. From the statement of PW-3, it is evident that Manisha had not disclosed the name of any person to the Assistant Sub Inspector nor had told him the manner of occurrence as disclosed by the eye witnesses examined during trial. PW-3 had deposed that the version disclosed by Manisha to the Assistant Sub Inspector had not been reduced into writing nor she had been made to sign at any paper in his presence. The said witness was known to the family of the injured for the last 13-14 years prior to the occurrence. From the statement of this witness it is evident that Manisha was conscious and was capable of making a statement.
PW-11 Rita has corroborated the statement of PW-3 Naunihal Singh Gill and has stated that she was present in PGI Chandigarh along with her brother and had met Manisha. Manisha had disclosed to her about the manner of occurrence. She further Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 25 deposed that police officer had not recorded the statement of Manisha. The said witness has not deposed that the names of the accused were disclosed to her by Manisha. Rather as per this witness, Manisha was conscious and communicative and hence, the argument raised by Mr.Attri that Manisha was unable to suffer her statement before the Investigating officer is rebutted. The statement of this witness was recorded after a long delay and thus, fails to advance the prosecution case.
PW-4 Brijpal deposed that on 25.2.1996 at about 2.30 P.M., he was present on the dividing road between sectors 15/ 16 and was waiting to cross the road. In the meantime, one Maruti car of blue colour came from Sector 24 side at a high speed. Front wind screen of the car was completely broken. The said car was being followed by the police on two motorcycles. He could not identify the persons sitting in the car. Thereafter, he reached General Hospital, Sector 16 and saw that the police officer was getting the signatures of the injured on the blank papers, while she was in the process of being shifted to PGI Chandigarh. The said witness in his cross- examination deposed that he knew Mr.Attri prior to 25.2.1996. The statement of the said witness is rebutted by PW-47 Rupan Deol Bajaj as the said witness had arranged for a doctor and a nurse to accompany the patient to PGI Chandigarh and had thereafter, left sector 16, hospital. The said witness (PW-47) has deposed that the police officials were present at the spot but she has not deposed that Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 26 the signatures of the patient were obtained on any blank paper. PW- 4, in his cross-examination deposed that he had narrated the occurrence witnessed by him after one month to Mr.Attri. Since the said witness was known to Mr. Attri, the possibility that he had deposed with a view to advance the version put forth by Mr.Attri cannot be ruled out. Hence, the statement of PW-4 fails to advance the case of the prosecution that no statement of Manisha was recorded by Assistant Sub Inspector Gurbin Singh.
PW-25 Bhuvnendu Pal, brother of the deceased and PW- 48 Sanjay Bashist have also deposed that on 28.2.1996 when they met Manisha in the hospital, she had narrated to them the manner of occurrence. However, the said witnesses have not deposed that Manisha had told them the names of the occupants of the car but from their statements it is evident that Manisha was conscious on 28.2.1996. PW-51 Mr. Attri also deposed that on 26.2.1996, he had met his daughter in PGI, Chandigarh and she had disclosed to him the manner of occurrence. However, he has not deposed qua the names of the accused disclosed to him by his daughter but his statement reveals that Manisha was conscious on 26.2.1996.
After carefully analysing the above evidence on record, we are of the opinion that Assistant Sub Inspector Gurbin Singh had recorded the initial version as disclosed to him by the victim. Manisha was conscious and was in a position to make a statement before the police. Further Manisha was a lawyer and was praticing on the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 27 criminal side also and thus, knew what she was doing when she signed her statement before police.
In the present case, the intial version as disclosed by Manisha was that her scooter had been hit by the car in question. The car in question was chased by the police and was apprehended from the market of Sector 10, Chandigarh. PW-29, Constable Ranjot Singh deposed that on 25.2.1996, he was posted in police control room. At about 4.00 P.M. he received the message that an Esteem car was parked in the market of Sector 10, Chandigarh and the said car was involved in an accident. On reaching the spot, he found the car parked there bearing registration No.DL 01-CD-2853. Jatinder Mohan Singh, driver of the car was sitting in the car. The car was taken in possession. Jatinder Mohan Singh was arrested by Assistant Sub Inspector Gurbin Singh. In his cross-examination, he deposed that constable Malkiat Singh gave the message to control room and they were deputed by the control room to go to the spot.
Constable Malkiat Singh has been examined by the defence as DW-5. The said witness deposed that on 25.2.1996, at about 2.00 P.M. he was returning from his house and saw a car i.e. Maruti -1000 going ahead of him on the road dividing sectors 23-24 towards sector 16. The car turned towards right side and struck against the scooter coming from the opposite direction with two ladies riding on it. One of the scooter riders fell on the road, whereas, the other fell on the car itself. After some time the lady, Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 28 who had fallen on the car fell on the road. Thereafter, the car sped away towards sectors 15/ 16 Chandigarh. He chased the car and intercepted it in Sector 10, Chandigarh and thereafter, informed the police control room qua the accident. The statement of DW-5 Constable Malkiat Singh corroborates the version of PW-29 Constable Ranjot Singh and hence, the same cannot be brushed aside nor it be said that DW-5 was a false witness.
Thus, the car in question was taken in possession from Sector 10 market and accused Jatinder Mohan Singh was arrested by Assistant Sub Inspector Gurbin Singh. A case was registered under Sections 279, 337 IPC. Thereafter, offence under Section 338 IPC was added lateron as the injured had suffered grievous injuries.
So far as injured Harjit Kaur is concerned, she was discharged from the hospital on 26.2.1996. The case of the complainant party is that statement of Harjit Kaur (PW-19) was not recorded by the investigating officer. The said statement recorded by the investigating officer on 26.2.1996 under Section 161 of the Code of Criminal Procedure is available on record as mark 'DF'. The said statement is on the same lines as that of deceased Manisha Ex.PW 38/A. Harjit Kaur has denied having made the said statement to the investigating officer. Harjit Kaur (PW-19) submitted her affidavit Ex.DF dated 18.3.1996, wherein, she averred that her statement was not recorded by the investigating officer. In the said statement, she did not name any person as an accused. In the said Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 29 affidavit, she had simply averred that the statement purported to have been made by her before police officer was a fabricated document. Affidavit Ex.DF was allegedly sworn by Harjit Kaur before oath commissioner. In her cross-examination, PW-19 deposed that she had not appeared before the oath commissioner as she was confined to bed . Her signatures on the affidavit had been obtained at her residence but she had not gone to Chandigarh to get the same attested. Due to this reason, she did not know the name of the oath commissioner. Without going into the authenticity of the affidavit, it is evident that PW-19 had not given any version qua the manner of occurrence in the said affidavit.
Thereafter, PW-19 had submitted another affidavit on 3.4.1996 Ex.DB. In the said affidavit PW-19 Harjit Kaur named seven persons as accused i.e. Jatinder Mohan Singh, Gurmukh Singh, Ramesh Kumar Sukhija, Jatinder Singh, Devinder Singh, Jatinder Pal Singh @ Sonu, Ravinder Pal Singh @ Shelly. She also attributed the motive that Manisha was defending civil suit filed by Ramesh Kumar Sukhija against Gaya Parshad on behalf of the defendant. Due to this reason, the said seven accused had hatched conspiracy to commit the murder of Manisha. A day before the occurrence, Jatinder Pal Singh @ Sonu had been told by Manisha, on his enquiry, that she would be going to the Court at 11.00 A.M. on 25.2.1996 along with her mother. All the accused except Sonu were travelling in the car at the time of occurrence and after verifying the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 30 identity of Manisha, while overtaking their scooter, had returned back from the roundabout and had deliberatly struck their car against their scooter which had resulted in death of Manisha.
Thereafter, PW-19 made another statement during investigation on 28.6.1996 Ex.DQ, wherein a new motive was introduced. Names of Gurmukh Singh, Ramesh Kumar Sukhija, Jatinder Singh and Davinder Singh were deleted. Paramjit Singh @ Bittu, Jasmeet Singh @ Rocky, Jatinder Pal Singh @ Honey and Gurpreet Singh @ Patty were named as accused alongwith Jatinder Mohan Singh @ Mohni, Jatinder Pal Singh @ Sonu and Ravinder Singh @ Shelly. In the said statement a new motive was introduced that infact, on 11.2.1996, she had gone to attend the marriage of Gurpreet Singh @ Happy, elder brother of accused Sonu along with Manisha and her son Boby. There the accused were talking in a bad language and were making bad gestures and she had rebuked them and due to this reason, the accused in connivance with each other and with a common intention had struck their car against their scooter.
Thus, so far as PW-19 Harjit Kaur is concerned, she has been changing her version from time to time. Presence of PW-19 Harjit Kaur at the spot cannot be doubted as she had herself suffered injuries in the occurrence. However, the said witness has denied her initial statement recorded by the Investigating officer. She had submitted two affidavits i.e. Ex.DF and Ex.DB. Thereafter, her Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 31 statement Ex.DQ was recorded on 28.6.1996.
A perusal of examination-in-chief of PW-19 reveals that while appearing in the witness box, she has supported the version given by her in her statement Ex.DQ. A reading of the statement of PW-19 reveals that she knew all the accused as they were present in the marriage ceremony of Gurpreet Singh @ Happy. She has also stated in her examination-in-chief that Jatinder Pal Singh @ Sonu and Ravinder Pal Singh @ Shelly were students of Government Senior Secondary School, where she had worked as Mathemetics teacher since 1985. As per this witness, six persons were sitting in the car which crossed their scooter on the road dividing sectors 23-
24. One of the persons in the car identified her daughter as Pinky, Advocate. Thereafter, the car was brought parellel to their scooter and continued in that way to some extent. The car was then taken towards Batra chowk and was brought back on the same road. The car driver brought the car diagonally towards them. She asked her daughter to slow down the speed of the scooter as the occupants of the car were known to them and they had met them a day earlier. The car driver then accelerated his car. She called bad names to them. Thereafter, the car struck against their scooter. Jatinder Pal Singh @ Honey and Chhetinder Pal Singh were sitting by the side of the driver.
Thus, from the statement of this witness, it is evident that she knew the accused persons before the occurrence. However, Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 32 there is no explanation on record as to why she did not name the accused immediately after the occurrence or disclose the version put forth by her on an earlier date. Her first affidavit was submitted on 3.4.1996 qua the manner of occurrence and thereafter, her statement was recorded on 28.6.1996, wherein, a new motive was introduced and some of the earlier accused were dropped and names of four new persons as accused were added. PW-19 is the star witness of the prosecution but her statement is rendered doubtful due to inordinate delay in putting forth her version qua the manner of occurrence and that too by changing the motive and names of accused. The version put forth by PW-19 qua the manner of occurrence is rendered doubtful on account of unexplained delay in putting forth the said version by her. PW-19 was sent home on the next day of the occurrence. Although Manisha remained admitted in the hospital up to 12.3.1996 and thereafter, her last rites were performed but even then there is no explanation qua the delay in putting forth the present version by PW-19 as disclosed by her during trial.
After carefully going through the testimony of PW-19 in view of the factual background referred above, we are of the opinion that the statement of PW-19 qua the manner of occurrence as put forth by her fails to inspire confidence.
Prosecution has examined various other eye witnesses, who had allegedly witnessed the occurrence in support of its case. Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 33 PW-2 Khushi Ram deposed that on 25.2.1996, at about 2.00 P.M., he was sitting in the park adjacent to his house. He saw a blue coloured Maruti esteem car coming from the side of sector 16 at a high speed and in a zig-zag manner. Because of the said action of the driver he was attracted towards the car. The car was then brought back from Balmiki temple chowk at a high speed in a zig-zag manner. After crossing the STD booth, the driver diagonally drove towards the scooter driven by a girl and with a lady sitting on the pillion seat. The scooter was coming from the side of sector 16. As a result of the impact, both the ladies were thrown in the air. The girl fell on the bonnet of the car, whereas, the lady fell on the road. The front screen of the car was broken completely. The girl fell in front of the car and the car was reversed for about two feet and then run over the body of the girl as well as the scooter. The car driver then took the car towards sector 16. The occupants of the car were saying 'killed-killed'. He could only see two persons including the driver. Some more persons were sitting in the car but he could not count them. He could not note down the number of the car. Thereafter, John Mohammad helped the girl to get up but she was unable to do so as her legs were fractured. They stopped a car and the older lady was sent with him to the hospital. The girl was taken to the hospital by a lady in her car. His statement was recorded after two months of the occurrence. He was unable to identify the occupants of the car. In his cross-examination, he deposed that in his statement dated Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 34 14.9.1996 the had not mentioned the fact that some persons were sitting in the car on the rear seat. His son Rajesh Sharma was a practising advocate and sat with Mr. Bhullar in his chamber No.218.
The statement of PW-2 fails to advance the prosecution case as this witness had failed to identify the occupants of the car. Further the statement of this witness was recorded after two months of the occurrence. No explanation is forthcoming on record as to why this witness did not get recorded his statement immediately after the occurrence.
PW-5 John Mohd. has deposed qua the manner of occurrence as disclosed by PW-2. The said witenss further deposed that in May 1996, his statement was recorded by DSP Randhawa. His statement was again recorded in February 1997 by Inspector Dhawan of CIA staff. His statements Ex.DK (twice numbered) were recorded on 10.9.1996 and 6.2.1997. He identified Jatinder Mohan Singh as the driver of the car and pointed out towards accused Chetinder Pal Singh as the person, who was sitting beside the driver. The witness further stated that all the remaining four accused except Jatinder Pal Singh son of Charanjit Saini were sitting on the rear seat of the car. In his cross-examination, he deposed that he was working as a clerk since the year 1995 with Mr.Bhullar and Mr.Rajesh Sharma. He was also helping them in their domestic works. On the next day of the incident i.e. 26.2.1996, he gone to the chamber of Mr.Attri to inquire about the well being of the victim. On 25.2.1996, Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 35 itself he had told about the manner of occurrence to Mr.Attri when he had come to the spot at about 4.00 P.M. The witness was duly confronted with the improvements made by him in his earlier statements. He further stated that Manisha was also practising advocate in the District court. He identified the victim even at the time of accident. He denied the suggestion that he was making the statement at the instance of Mr.Bhullar but admitted as correct that Mr.Bhullar and Mr.Rajesh Sharma were present in the Court on the said day when his statement was recorded.
The statement of PW-5 also fails to inspire confidence. The said witness knew the victim and if he was present at the spot, he would have made efforts to take the injured to the hospital. Rather some other passersby had taken the injured to the hospital. In case PW-5 had actually witnessed the occurrence and informed Mr.Attri qua the manner of occurrence as stated by him then in the initial version itself the names of the accused would have been mentioned. The delay in recording of the statement of this witness makes his testimony doubtful. Mr.Attri is an advocate and in case he had been narrated the manner of occurrence by this witness, he would have made efforts to get the statement of PW-5 recorded immediately after the occurrence. The said witness did not know the accused prior to the occurrence. No identification parade was conducted in this case. Hence, the identification of the accused by this witness in Court cannot be relied upon especially when the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 36 statement of this witness was recorded for the first time after a long delay. It appears that this witness might have been falsely introduced at a later stage being known to complainant party and deceased to strengthen the version put forth by the complainant party.
PW-6 Rajpal is another witness, who had allegedly witnessed the occurrence. The said witness has also corroborated the manner of occurrence as deposed by PW-2. This witness identified Jitender Mohan Singh as the driver of the car and stated that Jasmeet Singh accused was sitting on the rear seat of the car towards the door. He failed to identify the other accused. In his cross-examination, he deposed that he had gone to PGI on the next day of the occurrence to enquire about the health of the daughter of Mr.Attri. He had met Mr.Attri prior to the occurrence. He also knew Manisha prior to the occurrence. He had appeared as a surety in a couple of cases pending in district courts. In those cases, Mr.Attri was the advocate for the accused. The statement of this witness for the first time was recorded on 15.9.1996 (Ex.DL/1). Thereafter, his statements were again recorded on 10.2.1997 (Ex.DL) and 17.8.1997 (Ex.DM). The witness was duly confronted with the statements qua improvements made by him during his cross- examination.
The testimony of this witness fails to inspire confidence. The said witness knew the victim and was allegedly driving a Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 37 threewheeler at the time of occurrence. In case, he was actually present at the spot, he would have removed the injured to the hospital in his vehicle as he knew the victim. It is not believable that he could identify the occupants of the car but not the scooter riders. The said witness was driving with his face towards the scooter and hence, in normal circumstances, it was expected from him to have recognised the scooter riders. The car had come from behind and the possibility that he could identify the occupants of the car is remote as compared to his capability to identify the scooter riders. The said witness did not know the accused prior to the occurrence. No identification parade was conducted in this case qua identification of the accused. Hence, the identification of the accused by this witness in courft cannot be relied upon especially when the statement of this witness was recorded for the first time after a long delay. Hence, the possibility that he had later on been introduced as a witness to strengthen the prosecution case cannot be ruled out as he knew the victim as well as her father.
Another eye witness examined during trial is PW-7 Ramesh Kumar. The said witness has also corroborated the statement of PW-2 qua the manner of occurrence. He further deposed that all the accused persons except Jatinder Pal Singh were occupants of the car. All the persons had raised slogans that they had taken revenge. His statement was recorded by Mr.Dhawan after 11-12 months of the occurrence. In his cross-examination he Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 38 deposed that none of the accused were subjected to identification parade at any point of time before him. He knew Mr.Attri since the year 1985. He got to know Manisha in the year 1995. On the next day, he had gone to PGI and had met Mr.Attri and had informed him qua the occurrence. Initially he had gone to the court complex but Mr.Attri was not available there. He reached the residence of Mr.Attri at about 4/ 4.15 P.M. at Mohali.
The statement of this witness fails to inspire confidence. The said witness was also known to the victim and her father. In his cross-examination, he deposed that he was a social worker and active in politics. As per this witness he had informed Mr.Attri qua the occurrence witnessed by him on the next day when he met him in the PGI. However, the names of the accused except accused Jatinder Mohan Singh @ Mohni saw the light of the day after a long delay. In case, the said witness had witnessed the occurrence then he would have immediately raised hue and cry qua wrong recording of the FIR and would have made sure that his statement was immediately recorded as the said witness is active in politics and is a social worker. The said witness did not know the accused prior to the occurrence. No identification parade was conducted in this case. Hence, the identification of the accused in court by this witness cannot be relied upon especially when the statement of this witness was recorded for the first time after a long delay. The fact that this witness did not get recorded his statement immediately after the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 39 occurrence renders his presence at the spot doubtful. The possibility that he has been later joined as a witness to help the complainant party as he was known to them cannot be ruled out.
PW-18 Kamal Kishore is another eye witness examined by the prosecution. The said witness has also corroborated the manner of occurrence as disclosed by PW-2. He stated that all the accused present in the court were occupants of the car but he could not tell their names. In his cross-examination, he deposed that the police had not come to the spot on the day of occurrence. Mr. Attri had met him about a month prior to the recording of his statement.
The statement of this witness fails to inspire confidence. As per this witness his statement was recorded after 2 / 2 ½ months of the occurrence in police station, Sector 17, Chandigarh. The said witness has stated that the police had not reached the spot on the day of occurrence, whereas, as per PW-14 Inderpal Singh, photographer, he had gone to the spot on the day of occurrence and had taken the photographs of the scooter. At that time, Assistant Sub Inspector Gurbin Singh and one constable were present there. In case PW-18 had witnessed the occurrence, he should have immediately got recorded his statement qua the manner of occurrence. Further the said witness did not know the accused and had not participated in any identification parade qua the identification of the accused. In these circumstances, the identification of the accused by this witness for the first time in Court cannot be relied Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 40 upon.
PW-37 Sukhbir Singh is another witness, examined by the prosecution, who had reached the spot after hearing the noise made by the striking of the two vehicles. He deposed that on hearing the noise, he reached the spot and saw that a car of blue colour with its broken front wind screen was going towards sector 16 side. The car was bearing registration number of Delhi but he had failed to note down the same. There were six occupants in the car. However, the said witness failed to identify the occupants of the car during trial and also deposed that he had not witnessed the occurrence. In these circumstances, the statement of the said witness fails to advance the prosecution case.
PW-48 Sanjay Bashist is another witness, examined by the prosecution, who has deposed that on 28.2.1996, he had gone to PGI along with his friend Bhuvnendu Pal (brother of Manisha). Manisha had told him that she was returning from the Court on 25.2.1996 and was present on the road dividing sectors 23-24. A dark blue colour esteem car over took her and thereafter, after encircling the roundabout, the car again came from the opposite direction and struck against her scooter. Her mother was sitting on the pillion seat of her scooter at that time. The car had intentionally crushed them. From the statement of this witness, it is evident that Manisha was conscious on 28.2.1996 and was in a position to disclose to this witness that she had been intentionally hit by the car Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 41 driver. However, the statement of this witness fails to advance the prosecution case as he has been unable to disclose the names of the occupants of the car.
Thus, the witnesses examined by the prosecution to establish the presence of other accused except accused Jatinder Mohan Singh @ Mohni at the spot fail to inspire confidence. The statements of all the said witnesses were recorded after a long delay. Further no identification was got conducted during investigation to establish the identity of all the accused except accused Jatinder Mohan Singh @ Mohni. So far as accused Jatinder Mohan Singh @ Mohni is concerned, he had admitted the fact that he was driving the car in question on the day of occurrence but he had taken the plea that it was a sheer case of accident. The identification by the eye witnesses of the occupants of the car for the first time in the court cannot be relied upon especially when their statements were recorded after a long delay.
Their Lordships of the Hon'ble Supreme Court in Dana Yadav @ Dahu v. State of Bihar, 2002(4) R.C.R. (Criminal) 314, underlining the importance of test identification parade during investigation of a criminal case, have observed as under:-
"It is also well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in court inadmissible rather the same is very much admissible in Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 42 law. Question is what is its probative value? Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes criminal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence".
To the same effect is the ratio of judgment of the Hon'ble Supreme Court in Md.Kalam @ Abdul Kalam v. State of Rajasthan, 2008(2) RCR (Criminal) 631. In the above said case, the Hon'ble Supreme Court has gone further to say as under:-
"12. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 43 had no particular reason to remember the person concerned, if the identification is made for the first time in Court."
PW-25 Bhuvnendu Pal is the brother of deceased Manisha. The said witness has deposed that on coming to know about the occurrence, he had reached Mohali by train on 27.2.1996 from Deljapur (Maharashra) along with his friend Sanjay Vashisht. On 28.2.1996, he went to PGI, Chandigarh along with Sanjay and met his sister Manisha. She narrated to him qua the manner of occurrence. On 28.2.1996, the condition of his sister became critical. He was told by Mrs. Kailash Marwaha, their landlord, and her son that Jatinder Pal Singh @ Sonu's mother had met them with regard to compromise. On 2.3.1996, Sonu and Shelly accused met him in PGI Chandigarh and requested him that he should ask his father to stop making complaints. He inquired from him that as to why they had asked from Manisha about her schedule on 24.2.1996. He (witness) told them that although Sonu was not sitting in the car on the next day but Shelly and his other friends were present in the car. On 11.2.1996 at the time of marriage of Gurpreet Singh, elder brother of Sonu, he was present there along with his sister and mother. All the accused were present there. On 10.3.1996, Sonu and Shelly had met him in PGI and asked him that in case Pinky died then what kind of case would be registered against them. He replied to them that they had deliberatly killed her. His father, who was standing quite Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 44 near to him, said that Pinky would survive and he should not talk about her murder. His father felt enraged on seeing Sonu and Shelly. On 12.3.1996, Pinky died. On 22.3.1996, parents of Sonu @ Jatinder Pal Singh came their house and said that they could not attend the last rites ceremony of Pinky. His father told them that they had not done so as their son was also responsible for murder of Pinky. His father had told the parents of Sonu to leave their house. Even thereafter, accused continued making efforts for compromise.
This witness has been examined to establish the circumstance of extra judicial confession by accused Sonu and Shelly and the compensation offered by the parents of Sonu. He has also deposed that his sister had disclosed to him the manner of occurrence. The statement of this witness fails to advance the prosecution case. Although this witness has deposed that his sister had disclosed to him qua the manner of occurrence but he has not given the details in this regard nor has named the occupants of the car. The said witness deposed that on 2.3.1996, Sonu and Shelly had confessed that they had killed his sister, although Manisha ultimately died on 12.3.1996. As per this witness, parents of Sonu had offered compensation through his landlord on 28.2.1996 but at that time Sonu was not facing any criminal proceedings nor any statement had been recorded against him. From the statement of this witness, it is evident that Manisha was conscious on 28.2.1996. Thus, even on that day, Manisha had not disclosed to him the names Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 45 of the accused. As per this witness on 22.3.1996, parents of Sonu had come to their residence and his father had told them that their son Sonu had hand in the murder of Pinky. There is no explanation on record as to why the names of the accused were not disclosed to the police before 3.4.1996. As per this witness, Mr. Attri was also present on 10.3.1996 when Sonu and Shelly had come to meet him in PGI Chandigarh. In these circumstances, the statement of this witness also fails to advance the prosecution case.
Mr. Attri has placed reliance on a report Ex.PD of the Forensic Science Laboratory qua the scooter wherein, it has been observed that the spare wheel and the front seat of the scooter appeared to have been damaged/ twisted due to strong force from the rear side to the front side. Mr. Attri has also placed reliance on the photographs of the scooter to substantiate his argument that in fact the scooter had been, at the first instance, hit by the car from the front side and thereafter, it was again hit from the back side. The argument raised by Mr. Attri has been duly considered by us but the same fails to advance his argument that in fact the car had intentionally struck against the scooter with an intention to cause death of the scooter riders. Since the pillion rider had fallen on the road after the accident and Manisha had fallen on the bonnet of the car and thereafter on the road, there was no occasion for the car driver to have struck the scooter from behind. Further this argument of Mr.Attri loses its significance as the statements of the eye Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 46 witnesses examined by the prosecution to establish that all the accused were present in the car with a view to commit murder of Manisha and her mother and had struck the car against their scooter intentionally is not established.
The fact that deceased Manisha had been run over by the car again after she had fallen down from the bonnet of the car is not established on record. No crush injuries were observed by the doctors on the person of the deceased. Hence, the argument raised by Mr.Attri that Manisha had been again run over by the car with a view to commit her murder by the occupants of the car is not established on record.
It is an established proposition of law that in a case based on eye witness account, motive to commit the crime loses its significance. In case the eye witness account is believable then, merely because the motive is not established on record, cannot be said to be fatal to the prosecution case. It is difficult for the prosecution to establish on record as to what was going in the mind of the accused. However, in the present case, the prosecution had tried to establish motive with the accused to have committed the murder of the deceased. At one instance, the motive was set up by injured Harjit Kaur as well as Mr. Attri by submitting applications/ affidavit to the effect that Manisha was pursuing the case on behalf of Gaya Parshad filed against him by Ramesh Kumar Sukhija. Mr. Attri, during the course of arguments, has submitted that Devinder Singh, Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 47 father of accused Jatinder Mohan Singh @ Mohni was a friend of Ramesh Kumar Sukhija and hence, had got the crime committed through his son. The said averment made by Mr.Attri is also without any force as Ramesh Kumar Sukhija, who had filed the suit against Gaya Parshad, was given up as an accused in this case. Once, Ramesh Kumar Sukhija has been given up as an accused then there was no occasion for Devinder Singh to have got the crime committed through his son. Further Devinder Singh, father of accused Jatinder Mohan Singh has also not been arrayed as an accused. Devinder Singh was although initially named as an accused by Harjit Kaur and Mr.Attri in their application/ affidavit dated 3.4.1996 (Ex.DB and Ex.DC) but the said names were later withdrawn in another statement made by Harjit Kaur on 28.6.1996 (Ex.DQ). Thus, accused Jatinder Mohan Singh @ Mohni had no motive to commit the murder of the deceased. Admittedly, the said accused was driving the car at the time of accident and was later apprehended with the car from the market of Sector 10, Chandigarh.
In June 1996, Harjit Kaur introduced new motive qua the crime and stated that the accused were present at the time of marriage of Gurpreet Singh, elder brother of accused Sonu on 11.2.1996. On that day, she had rebuked the accused, who were standing in the courtyard. Since the said motive was introduced at a later stage, the same fails to inspire confidence. The accused apart from the driver of the car, were not named by Manisha in her initial Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 48 statement and by Harjit Kaur at the first instance before the police. Harjit Kaur (PW-19) knew the accused and in normal circumstances, it was expected from her to disclose their names as early as possible. As per this witness, she had told her daughter to slow down the speed of the scooter as the occupants of the car were known to them but she did not bother to name the accused at an early stage. Since the complainant party has been changing its stand qua motive, we are of the considered opinion that the motive alleged by the complainant party which had induced the accused to commit the crime cannot be relied upon. It is probable that motive had been falsely introduced in this case at a later stage to make out a case of murder, whereas, it appears to be a case of accident which had resulted out of rash and negligent driving of accused Jatinder Mohan Singh @ Mohni while driving the car in question. In these circumstajnces, the witnesses examined by the prosecution during trial to establish the pendency of the case between Ramesh Kumar Sukhija and Gaya Parshad fail to advance the case of the prosecution and are not being taken up for discussion.
Mr. I.P.Attri has placed reliance on Ex.PW-21/A, bail application moved by Ravinder Pal Singh @ Shelly to substantiate his argument that the said accused had admitted his presence in the car at the time of crime. The said bail application of the accused has been duly supported by his affidavit Ex.PW-21/B. Reliance has been placed on para 7 of the application, which reads Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 49 as under:-
"That even as per allegations that petitioner was present along with Jatinder Pal Singh @ Sonu but he did not utter a single word. It was as per allegation, Jatinder Pal, who asked Manisha as to when she will go to court and when she will return to Mohali. Thus, the petitioner even may not be knowing as to for what purpose Jatinder was asking all this from Manisha."
A bare reading of the said paragraph shows that accused Ravinder Pal Singh @ Shelly had not admitted his presence in the car at the time of crime but had merely stated the allegation levelled against him by the prosecution. Further the said averment was made in the alternative and cannot be described as an admission on the part of accused Ravinder Pal Singh qua his presence in the car at the time of commission of crime. A perusal of the application reveals that the said applicant had averred that he was being prosecuted for an offence although there was no evidence of conspiracy against him. Further it was prayed in the application that the applicant was taking treatment in PGI Chandigarh after his kidney transplant in the year 1991. The contents of the entire application have to be taken together. Further Mr. I.P.Attri has failed to point out that the said admission was ever put to the accused when his statement under Section 313 Cr.P.C. was recording during trial. Hence, the submission made by Mr. Attri that accused Ravinder Pal Singh had Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 50 admitted his presence in the car at the time of commission of crime is rejected.
Mr.Attri has also placed reliance on Ex.PW-24/A to substantiate his argument that Jasmeet Singh, Paramjit Singh and Gurpreet Singh had also admitted their presence at the scene of crime. Ex.PW-24/ A is the application moved by the said accused for bail before the trial Court. Mr. Attri has placed reliance on para 15 of the application, wherein it has been stated as under:-
"That only for being a rider in the car, every one cannot be held to be responsible for the crime alleged"
A perusal of the above paragraph does not lead to the inference that accused Jasmeet Singh, Paramjit Singh and Gurmeet Singh had admitted their presence in the car at the time of commission of crime. This was merely an argument in the bail application. The entire tone and tenor of the application has to be seen. A perusal of the application reveals that the case of the said accused was that they had been falsely involved in the case. Mr.Attri fails to point out that the said paragraph was specifically put to the accused when they were examined under Section 313 Cr.P.C. so that they could give their explanation as to whether they had admitted their presence at the spot or not.
Mr.Attri has also submitted that certain suggestions had been put to the witnesses which showed the presence of the accused in the car. In this regard, Mr. Attri has placed reliance on Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 51 suggestion put to PW-19 Harjit Kaur to which the witness replied that it was incorrect to suggest that the car had come only once from the side of Batra chowk and the car had struck against the scooter in the middle of the road.
Mr.Attri has next placed reliance on the suggestion put to PW-53 Bhupinder Singh to which the witness replied that it was also wrong to suggest that no such crime was ever committed by any of the accused as had been alleged in the case.
Mr. Attri then placed reliance on the suggestion put to PW-54 P.K.Dhawan to which the witness replied that he could not say if the accused other than Ravinder Pal Singh @ Shelly and Jatinder Pal Singh @ Sonu had any dealings with Manisha or with Mr.Attri.
The said suggestions have been put by the defence counsel to the above witnesses during their cross-examination. By no stretch of imagination, it can be said that on the basis of the said suggestions it could be presumed that the accused had admitted their presence in the car at the time of occurrence. Accordingly, this argument of Mr. Attri is rejected.
Mr. Attri has also argued that in case the accused were innocent they should have pleaded in their bail applications filed by them after they had been taken in custody that they were not present in the car but they averred that there was no evidence against them. This statement made by Mr. Attri is far fetched and is Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 52 rejected. Mr. Attri has tried to shift onus on the accused to establish that they were not guilty qua the crime. Since the eye witness account is not trustworthy in the present case to establish the offence of murder and attempt to murder, the prosecution case is liable to fail.
Mr. Attri has also placed reliance on the report of PW-32 Keya Dharamvir. PW-32 has proved her report Ex.PW 19/A . The said witness gave the report that the occurrence dated 25.2.1996 was intentional, voluntary, deliberate and calculated one. The said witness in her cross-examination deposed that Harjit Kaur had approached her in the year 1997 and had requested her to make the above calculations. She had not appeared as a witness nor had given any report in any road accident matter. She had not rendered any assistance to anyboby earlier to this report. The report required lot of work and time which she could not devote and due to this reason she had not compared the report Ex.PW-19/A herself. The experiment was conducted in her house. The report of this witness, thus, cannot be relied upon as she has not herself compared the report nor she had been directed by the Court or Investigating officer to conduct the experiment.
Statement of PW Satish Kumar Sharma was recorded through the video conferencing . He deposed that the material was supplied to him by Naresh Attri and he had supplied the same to his colleague David George Abraham. In his cross-examination, he Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 53 deposed that he had not received the documents from the court and Naresh Attri was known to him for the last 15 years.
Statement of David George Abraham was also recorded by way of video conferencing. He proved the report Ex.PW-59/A and deposed that in the report, he gave the conclusion that he would suggest that it would be extremely difficult to prove that the action of the driver of the car was anything other than a deliberate attempt to cause bodily harm to the riders of the scooter especialy since the car was in a good mechanical order. He was contacted by Mr. Sharma, who was his colleague for preparation of the report. In his cross- examination, he deposed that he had not received any training from any institute in this regard. Vedio tapes were shown to him by Mr. Sharma. The possibility given by him was based on road conditions prevailing in his country (London) and he had not visited India. He had not charged any fee and had handed over the report to Mr.Sharma. Thus, no reliance can be placed on the statement of this witness as he did not know about the prevailing road conditions in this country and further he had not been asked by the Court or the Investigating officer to prepare the report.
PW-61 J.P.S.Gujral proved the vedio cassettee prepared by him qua the animated version of the accident. In his cross- examination, he deposed that Mr.A.K.Attri, brother of Mr.I.P.Attri, was known to him since the year 1992-93. Whatever was told to him, he had compiled the same. He was not called by a written notice to give Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 54 demonstration. This witness also fails to advance the prosecution case as he was neither instructed by the Court or the investigating officer to prepare the animated version of the accident.
Thus, the reports submitted by these private persons without any order of the court or at the instance of the investigating officer, cannot be relied upon. An application was moved by Mr.Attri during trial for permission that the scientific reports and graphics be got prepared and be permitted to be led in evidence. The said application was dismissed by the trial Court vide order dated 15.9.1997 as the Court had no jurisdiction to allow and direct investigation from retired director of Forensic Science Laboratory. Mr. Attri was confronted with the said order during the course of arguments and was asked as to under which provision of law the reports submitted by some private persons at the instance of the complainant, without the orders of the Court, or at the instance of the investigating officer, could be relied upon as a piece of evidence. Mr. Attri very fairly conceded that he was on a weak wicket on this account. Hence, the reports submitted by PW-32, PW-61 and Mr. David George Abraham fail to advance the prosecution case.
Mr. Attri had himself appeared as a witness during trial as PW-51. Mr. Attri was not present at the spot when the accident took place. He had returned from Jabli (Himachal Pradesh) on 25.2.1996 and came to know about the accident in the evening. He reached PGI, Chandigarh at 9.15 P.M., where his daughter was being treated Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 55 by the doctors. On 26.2.1996, he came to know that the accused had already been released on bail. Thereafter, he wrote a complaint that it was not a case of accident by rash and negligent driving but rather it was a case of attempt to murder. He met his daughter on 26.2.1996 and she narrated the manner of occurrence to him. Manisha further told him that she had disclosed all the said facts to the police officer who had visited her in PGI Chandigarh but the said facts were not recorded by the Investigating Officer in her statement. He had also deposed qua the complaint made by him against the police officers, who had not properly conducted the investigation. He further stated that in the meeting that took place in the police station qua the case between Ramesh Kumar Sukhija and Gaya Parshad, Devinder Singh, father of accused Jatinder Mohan Singh @ Mohni had become infuriated as the proposal qua withdrawal of the complaint filed by Gaya Parshad was not acceptable to him. He has further deposed that the parents of accused Sonu had visted him to pressurise him and his wife not to pursue the present case any further. They had also offerred him money towards consideration for compromise. His wife had told him that accused Sonu was not sitting in the car at the time of crime. The accused present in the car had murdered his daughter by striking their car against her scooter. The car had been supplied by Devinder Singh, father of accused Jatinder Mohan Singh @ Mohni. He also corroborated the statement of his son qua presence of accused Sonu and Shelly in P.G.I Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 56 Chandigarh on 10.3.1996. He further stated that on 5.5.1996 accused Sonu and Shelly had tried to hit him with their scooter but he had managed to escape. He had filed a complaint in this regard. However, the said complaint was not proceeded further on the pursuation of father of accused Shelly and Gurpreet Singh @ Happy, elder brother of accused Sonu. He also deposed that since he was not satisfied with the investigation, he had got prepared the reports from Dr.Keya Dharambir, David George Abraham and tendered video cassette prepared by PW-61.
The statement of Mr. Attri fails to advance the case of the prosecution qua offence of murder and attempt to murder as the said witness had not witnessed the occurrence. The case of the complainant is that his daughter was unable to make the statement before the Investigating officer yet while appearing in the witness box, he had himself stated that on 26.2.1996, his daughter had narrated the manner of occurrence to him. However, he has not deposed that his daughter had disclosed the names of the accused to him. The names of the accused have been disclosed by PW 19 Harjit Kaur to this witness at a much later stage. It is very sad that the daugther of Mr. Attri has died at a young age but from the evidence on record it cannot be said that it was a case of murder.
Thus, in the present case the prosecution has been successful in establishing that accused Jatinder Mohan Singh @ Mohni was driving the car in question and due to his rash and Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 57 negligent driving he struck the same against the scooter driven by Manisha Attri from the opposite direction. The front portion of the scooter had struck against the car from the front side. A perusal of the photographs reveals that the bonnet of the car, slightly towards the passengers seat, was damaged in the accident. This shows that the car had gone on the wrong side at the time of occurrence but it cannot be presumed that it had intentionally gone on the wrong side to commit the murder of the scooter riders. Rather we are of the opinion that accused Jatinder Mohan Singh @ Mohni was driving the car in a rash and negligent manner and as a result his car went on the wrong side and struck against the scooter driven by Manisha Attri. The belated plea put forth by the complainant party that in fact the car had intentionally struck against the scooter driven by Manisha to commit murder of the scooter riders fails to inspire confidence. The statements of the eye witnesses in this regard were recorded after a long delay. The complainant party had been shifting its stand qua involvement of the accused persons in the occurrence. Motive qua the occurrence was also changed by the complainant party. Devinder Singh, father of accused Jatinder Mohan Singh @ Mohni was allegedly known to Ramesh Kumar Sukhija and since the name of Ramesh Kumar Sukhija and Devinder Singh had been withdrawn as accused by the complainant party then there was no motive left with the son of Devinder Singh i.e. accused Jatinder Mohan Singh @ Mohni to commit the offence of murder. So far as other accused are Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 58 concerned, the motive available with them to conspire with accused Jatinder Mohan Singh @ Mohni was set up at a belated stage which leads to the inference that the possibility that it might have been falsely introduced to involve the said persons as accused cannot be ruled out. Mr. I.P.Attri is a practising lawyer and in case the investigation in this case was not being carried out properly and he could have immediately moved a private complaint through his wife. It appears that at his instance his wife had intially named different persons as accused in her affidavit dated 3.4.1996. Thereafter, the names of the some of the accused were dropped and some new names were added in her statement dated 28.6.1996. The said accused faced the trial. All the eye witnesses knew Mr. Attri prior to the occurrence. Some of them also knew Manisha. Had the said witnesses been present at the spot they could have taken the injured to the hospital. Further the eye witnesses, who have named the accused, were not known to the accused. They had not participated in any identification parade to establish the identity of the accused. The averment made by Mr. Attri that his daughter was unable to make a statement on the date of accident is rather demolished by the prosecution witnesses. PW-47 Rupan Deol Bajaj deposed that the injured had been talking to her when she took her to the hospital. Mr. Attri himself, his son Bhuvnendu, Sanjay Vashisht, PW-11 Rita and PW-3 Naunihal Singh have all deposed that Manisha had narrated the manner of occurrence to them. Thus, it cannot be said that Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 59 Manisha was not capable of making her statement before the investigating officer. The investigating officer was acting in discharge of his official duty and had no reason to falsely record the statement of injured Manisha. Further at that stage, only accused Jatinder Mohan Singh @ Mohni had been arrested and there was no occasion for the investigating officer to have colluded with the other accused and falsely record the statement of Manisha. Hence, we are of the opinion that the present case cannot be said to be falling under the ambit of Sections 302 and 307 IPC but it is a case falling under the ambit of Section 304-A/ 338 IPC. There is no quarrel qua proposition of law laid down vide judgments relied upon by Mr. Attri but the same fail to advance his case that all the accused had connived with each other to commit the murder of his daughter Manisha and had attempted to commit the murder of his wife Harjit kaur.
Accordingly, Criminal Appeal No.188-DB of 2008 is partly allowed. Conviction and sentence of appellant Jatinder Mohan Singh @ Mohni is set aside under Sections 302 and 307 IPC. However, he is held guilty of offences under Section 304-A/ 338 IPC and is convicted thereunder. The said appellant is sentenced to undergo rigorous imprisonment for two years for commission of offence under Section 304-A IPC and he is also sentenced to undergo rigorous imprisonment for two years for commission of offence under Section 338 IPC. Both the sentences shall run concurrently. Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 60 The parents of deceased Manisha have lost their young daughter, who was a practicing lawyer. We are of the opinion that it would be just and expedient to allow compensation to the parents of the deceased to compensate them qua loss of their daughter. There can be no exact rule for measuring the value of human life. Mental pain and suffering as well as continuous agony of the parents of the victim can be termed as enormous. Although loss of human life cannot be compensated in terms of money but the paramount consideration while awarding compensation is only to protect the interest of the parents of the deceased so that the amount awarded to them by way of compensation serves the purpose and object of compensating them for the loss occasioned by the tragedy of the accident.
Section 357 Cr.PC. reads as under:-
Order to pay compensation .- (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied -
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 61 offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855, (13 of 1855) entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bonafide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 62 compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section."
It has been held by the Apex Court in Manish Jalan vs. State of Karnataka 2008 (3) RCR (Criminal) 666, as under:-
" The power vested in the Appellate Court or the High Court or the Court of Sessions (in revision) to award compensation under sub-section (3) of Section 357 Cr.P.C is wide and is in addition to any other sentence which may be awarded on conviction of a person. Needless to add that it is no substitute for sentence on conviction."
"Though a comprehensive provision enabling the Court to direct payment of compensation has been in existence all through but the experience has shown that the provision has rarely attracted the attention of the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 63 Courts. Time and again the Courts have been reminded that the provision is aimed at serving the social purpose and should be exercised liberally yet the results are not very heartening. On this aspect, Law Commission in its 42nd Report at para 3.17, inter alia, observed:
"We have a fairly comprehensive provision for payment of compensation to the injured party under Section 545 of the Criminal Procedure Code.
It is regrettable that our courts do not
exercise their salutary powers under this
Section as freely and liberally as could be
desired. The Section has, no doubt, its
limitations. Its application depends, in the first instance, on whether the Court considers a substantial fine proper punishment for the offence. In the more serious cases, the Court may think that a heavy fine in addition to imprisonment for a long term is not justifiable, especially when the public prosecutor ignores the plight of the victim of the offence and does not press for compensation on his behalf."
The amount of compensation has to be reasonable keeping in view the loss suffered by the heirs. The parents of the Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 64 deceased have lost their daughter on account of rash and negligent act of the appellant.
The Apex Court in Har Kishan and State of Haryana vs. Sukhbir Singh and others AIR 1988 Supreme Court 2127 (1) has held under :-
" Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent a constructive Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 65 approach to, crimes. It is indeed a step forward in our criminal justice system. We, therefore,recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way."
Keeping in view the facts and circumstances of the case, we are of the opinion that the appellant should pay ` 7,00,000/- towards compensation to the parents of deceased Manisha within three months from today. The said amount shall be shared by PW- 19 Harjit Kaur and PW-51 Mr.I.P.Attri equally. The said amount be adjusted in any other proceedings initiated by the heirs of deceased Manisha seeking damages/ compensation.
In view of the above discussion, Criminal Appeal No.1015-DB of 2009 and Criminal Revisions Nos.1679 of 2008 and 1311 of 2008 are dismissed.
Learned counsel for respondent No.5 Gurpreet Singh in Criminal Revision No. 1679 of 2008, has submitted that the passport of the said respondent was lying with Chief Judicial Magistrate, Chandigarh and the same be ordered to be released to him.
Vide order dated 16.9.2010 passed in Criminal Misc. No.40875 of 2010 in Criminal Revision No.1679 of 2008, passport of Gurpreet Singh, after renewal, was ordered to be sent directly to the Chief Judicial Magistrate who shall attach the same with the record file of the case.
Accordingly, the Chief Judicial Magistrate, Chandigarh is Criminal Appeal No. 188-DB of 2008 Criminal Appeal No.1015-DB of 2009 Criminal Revision No.1679 of 2008 Criminal Revision No.1311 of 2008 66 directed to release the passport to respondent No.5 Gurpreet Singh forthwith.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
May 10, 2012
anita