Punjab-Haryana High Court
State Of Haryana vs Khalik Hussain on 3 February, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 595-DBA of 2001
DATE OF DECISION : 03.02.2010
State of Haryana
.... APPELLANT
Versus
Khalik Hussain
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. S.S. Randhawa, Addl. A.G., Haryana,
for the appellant-State.
Mr. G.S. Dhaliwal, Advocate,
for the respondent.
***
SATISH KUMAR MITTAL , J.
1. The State of Haryana has filed this appeal against the judgment of acquittal of accused Khalik Hussain, passed by the Court of Additional Sessions Judge, Gurgaon, on 1.2.2001 in case FIR No. 211 dated 6.4.1999, registered at Police Station City Gurgaon, under Section 302 of the IPC.
2. Accused Khalik Hussain was tried for the offence under Section 302 IPC for committing the murder of Khushal Singh. The accused and the deceased were working in the CRPF. In the present case, the FIR (Ex.PD/1) was registered on the statement made by Kartar Singh (PW.4), father of the landlady, who rented out one room to the accused, where the alleged occurrence had taken place. In his statement (Ex.PD) recorded by Crl. A. No. 595-DBA of 2001 -2- ASI Maya Chand (PW.13), informant Kartar Singh stated that he is residing in House No. 1803, Rajiv Nagar, Gurgaon and in the same locality, at some distance, his daughter had built four rooms, which were let out by her to tenants. One room was given on rent to accused Khalik Hussain, who was working in CRPF, and one more person, namely Wajib, was also residing with him. Both of them belong to J & K. On 6.4.1999 at about 8.00 PM, Ashok Kumar, another tenant of his daughter, came running to the house of the informant and told him that the accused and Wajib were beating a person in their room after bolting it from inside and that person was raising noise "Bachao Bachao". Ashok Kumar further told that on his request, they did not open the door and the informant should accompany him and try to get the door opened. Then he and Ashok Kumar went to the house of his daughter. They tried to get the door opened, but failed. Then they bolted the room from outside and raised noise. Then many persons of nearby gathered there. Thereafter, both the persons ran away from there by breaking open the tin roof of the room. They could not apprehend them due to darkness. After that he informed the police, upon which the police reached the spot and got opened the door, where a young person was lying dead. On enquiry, they came to know that the person inside the room was Constable Khushal Singh of CRPF. He further stated that he does not know about the enmity of those persons. It can only be ascertained from the CRPF department.
3. After recording the said statement (Ex.PD) on 6.4.1999, ASI Maya Chand sent the same to the Police Station at 9.15 PM, on the basis of Crl. A. No. 595-DBA of 2001 -3- which the FIR (Ex.PD/1) was registered at 10.35 PM and the special report was received by the Ilaqa Magistrate on 7.4.1999 at 02.35 hours (in night). Thereafter, the inquest report (Ex.PN) and the site plan (Ex.PO) were prepared by Maya Chand ASI (PW.13). He picked up one pair of shoes, one broken wrist watch and T-shirt of the deceased from the place of crime and took the same into possession vide memo Ex.PP. He also picked up blood stained earth from the spot. Three empty tea glasses, out of which two were bearing finger prints, were also taken into possession vide memo Ex.PQ. The dead body of the deceased was sent for post mortem examination.
4. On 7.4.1999 at 1.55 P.M., Dr. P.C. Arya (PW.2) conducted the post mortem examination on the body of the deceased and he found the following injuries on his person :
1. An incised wound on the right parietal prominence placed obliquely and elliptical in shape and it was tailing off medially.
2. A similar injury 3 cms x 1 cm x bone deep, just in front of injury No.1.
3. A wedge shape wound 12 cms x 4 cms x 6 cms with clean cut margins at the level of middle of thyroid cartilage 4 cms away from the mid-
line and extending upto the back of neck in the mid-line. External opening of the wound was elliptical in shape and tailing anteriorly towards the neck. The wound was located 4 cms above the clavicle and 6 cms below the level of pinna of the right ear. Wound was extended upto the vertebral column through and through at the level of C3/C4 vertebrae. Major blood vessels covering this area were cut in horizontal plane.
4. An incised wound 4 cms x 1 cm x skin deep on the left mastoid Crl. A. No. 595-DBA of 2001 -4- process placed obliquely tailing outwards.
5. A contused abrasion 4 cms x 1 cm placed obliquely on the upper part of left upper arm, interiorly near the superior border. It was surrounded by small abrasions.
6. An incised wound 5 cms x 1 cm x bone deep on the lower part of right cheek placed around the base of right mandible and tailing of medially.
In his opinion, the cause of death was due to haemorrhage and shock consequent upon heavy weapon cutting injuries, both vascular and vertebral, on the right side of neck. All the injuries were ante-mortem in nature and injury No.3 was sufficient to cause death in the ordinary course of nature.
5. The accused was arrested on 6.4.1999 from CRPF Camp, Gurgaon. At the time of his arrest, he was wearing CRPF uniform. His shirt (Ex.P4), pant (Ex.P5), pair of shoes (Ex.P6 and Ex.P7) and socks (Ex.P8 and Ex.P9) were taken into possession by Inspector Jagdish Ram (PW.14) vide memo Ex.PG in the presence of HC Nahar Singh (PW.7) and ASI Rajesh Kumar (PW.10). As per the prosecution, all these clothes were blood stained. On 7.4.1999, on interrogation, the accused made disclosure statement (Ex.PH). On 8.4.1999, he got recovered the blood stained pant (Ex.P1) and shirt (Ex.P2) kept in a duly locked box in his room, which were taken into possession vide memo Ex.PJ. The accused also got recovered a blood stained Dav (Ex.P3) kept concealed by him in a polythene paper on the roof of the adjoining room. It was also taken into possession vide Crl. A. No. 595-DBA of 2001 -5- separate memo Ex.PK.
6. After completion of investigation, the challan was filed against the accused and charge under Section 302 IPC was framed, to which he did not plead guilty and claimed trial.
7. In support of its case, the prosecution examined fourteen witnesses, out of whom PW.6 Constable Rajinder and PW.11 HC Dharampal are the formal witnesses.
8. PW.1 SI Balwan Singh had lifted finger prints from two glasses lying in the house, where the occurrence had taken place and he proved his report Ex.PA. PW.2 Dr. P.C. Arya, who conducted the autopsy on the body of the deceased, proved the Post Mortem Report as Ex.PB and the opinion (Ex.PC/1) given by him on the application (Ex.PC) of the police. PW.3 ASI Saroj Bala proved the FIR (Ex.PD/1). PW.4 Kartar Singh is the informant in this case, who did not support the prosecution case and was declared hostile. PW.5 Constable Dharampal proved the scaled site plan Ex.PE, which was prepared by him at the instance of the informant Kartar Singh. PW.7 Nahar Singh and PW.10 ASI Rajesh Kumar are the witnesses to the recovery memo Ex.PG, whereby pant, shirt, pair of shoes and the socks of the accused were recovered. PW.8 Om Parkash DSP (retired) has proved the disclosure statement (Ex.PH) made by the accused. PW.9 SI Mata Deen is the witness to recovery memos Ex.PJ and Ex.PK, whereby the blood stained pant and shirt of the accused as well as the blood stained Dav, alleged to be used in the crime, were recovered. PW.12 Radhey Sham is the tea vendor, Crl. A. No. 595-DBA of 2001 -6- who was stalling Rehri in front of CRPF, has stated that on the day of the occurrence, he had heard the noise of "Bachao-Bachao" from inside the room of the accused. PW.13 ASI Maya Chand is the Investigating Officer of the case. PW.14 Jagdish Ram Inspector had arrested the accused and conducted partly investigation in this case.
9. In his statement under Section 313 Cr.P.C., the accused denied all the allegations appearing against him in the evidence led by the prosecution. He pleaded innocence and false implication on the basis of unfounded suspicion.
10. After considering the evidence available on the record, the trial court acquitted the accused of the charge, framed against him. Against the said judgment, the instant appeal has been filed by the State of Haryana.
11. We have heard the arguments of learned counsel for the parties.
12. On going through the impugned judgment of acquittal, we have noticed that the learned trial court has acquitted the accused-respondent, while arriving at the following conclusions :
(i) The informant Kartar Singh (PW.4) has not supported the prosecution version. His cross-examination by the Public Prosecutor also did not reveal any material, which could support the prosecution case. It has been held that according to the statement of this witness, the room in which the occurrence had taken place was not let out, it was lying vacant and the accused was not living in that room. It has been further observed that according to this witness, when he along with Ashok Kumar (who has not Crl. A. No. 595-DBA of 2001 -7- been examined) reached that room, by that time, the accused had already escaped by damaging the roof of the room, therefore, it has been concluded that Kartar Singh (PW.4) was neither a witness to the occurrence of the killing inside that room nor he had seen the escaping of the accused.
(ii) The recovery of pant Ex.P1, shirt Ex.P2 and Dav Ex.P3 at the instance of the accused has been held to be doubtful, in view of the fact that when the accused was arrested, his CRPF uniform articles Ex.P4 to Ex.P9 were recovered and there were blood stains on those articles. In light of that, the recovery of blood stained clothes from the box lying in the room has been held to be doubtful and benefit has been given to the accused.
(iii) It has been found that when the accused was arrested, he was having some injuries on his person. He was also got medically examined, but for the reasons best known to the prosecution, the doctor has not been examined to prove the MLR of the accused. This fact also creates doubt in the prosecution version. It has also been observed that when initially, two persons were named as accused, no reason has been given why the challan was filed only against one.
13. Primarily on the basis of all the aforeasaid reasoning, the learned trial court has acquitted the accused-respondent.
14. After carefully examining the evidence led by the prosecution, we do not find any illegality or perversity in the judgment of the learned trial court. In this case, no body had seen the accused giving injuries to the deceased. As per the prosecution, one Ashok Kumar, who was one of the Crl. A. No. 595-DBA of 2001 -8- tenants of the daughter of the informant Kartar Singh, came to Kartar Singh and informed him that the accused and Wajib, who were residing in one room, were beating a person in their room after bolting it from inside and that person was raising noise "Bachao Bachao". Since he could not get the door of the room opened, therefore, he came to informant Kartar Singh to get it opened. The said Ashok Kumar, who had initially heard the noise from inside the room, has not been examined. By the time, informant Kartar Singh and Ashok Kumar went to the place of occurrence, the accused had already run by breaking open the tin roof of the room. The police was called and on getting the door of the room opened, the dead body of the deceased was found there. As per the prosecution, the dead body was found in the room, which was rented out to accused Khalik Hussain, but the prosecution did not lead any evidence to prove this fact, so that a presumption can be raised against the accused under Section 106 of the Evidence Act, 1872. The landlady has not been examined. No documentary evidence with regard to letting out of the said room has been placed on record. PW.4 Kartar Singh has stated that the room, in which the occurrence had taken place, was lying vacant and the respondent was given another room on rent. Thus, the prosecution has not proved the fact that the room, in which the occurrence had taken place, was rented out to the accused.
15. Further, the prosecution has examined PW.12 Radhey Sham, a tea vendor, who has stated that on the day of occurrence at about 7.00 PM, accused Khalik Hussain had taken three glasses of tea from him. Three Crl. A. No. 595-DBA of 2001 -9- empty glasses were also recovered from the room. The finger prints were taken from two glasses, but for the reasons best known to the prosecution, those finger prints were not got compared with the finger prints of the accused. This fact also creates doubt in the prosecution version.
16. The prosecution has relied upon certain recoveries. There are two sets of recoveries. In one set, the police had taken into possession the clothes of the accused, which he was wearing at the time of his arrest. Those articles are Ex.P4 to Ex.P9. According to the prosecution, all these articles were stained with blood. In the second set, the accused got recovered his pant (Ex.P1) and shirt (Ex.P2) from a duly locked box in his room, and a Dav (Ex.P3) kept concealed by him in a polythene paper on the roof of the adjoining room. According to the prosecution, these articles were also blood stained. To connect the accused with the alleged crime, the prosecution has relied upon the report of the Forensic Science Laboratory, Haryana, Madhuban (Karnal), which is available on the record as Ex.PL. Blood on the clothes was found to be of human origin. The group of blood found on the pant (Ex.P1) and shirt (Ex.P2) was reported as `inconclusive'. The group of blood on the other clothes which were recovered at the time of the arrest of the accused was found to be `A'. The Lab had also examined a piece of gauge cloth stained with dark brown stains described as blood. According to the prosecution, blood was also detected on the said piece of gauge cloth, but Dr. P.C. Arya (PW.2) in his statement has not stated that he had taken a cloth or piece of a cloth and sent it for chemical examination. The group of Crl. A. No. 595-DBA of 2001 -10- blood found on the articles, which were recovered subsequently from the room, on the disclosure statement of the accused, was reported as `inconclusive'. Thus, the learned trial court has rightly observed that the alleged recovery is doubtful, because it does not stand to reason that if the accused had removed his clothes after killing Khushal Singh, then how the clothes being worn by the accused at the time of his arrest were found blood stained. In our opinion, this improbability noticed by the trial court rightly creates a doubt regarding the alleged recovery and the plea of the accused that he is being implicated on the basis of suspicion appears to be probable. The prosecution has also not led even an iota of evidence to suggest that the accused was having any motive for the alleged crime.
17. There is another fact, which has to be taken notice of and which creates doubt in the prosecution version. As per the initial prosecution version, two persons namely Khalik Hussain (accused in this case) and Wajib were residing in the room and according to Ashok Kumar, both were beating a person in their room after bolting it from inside and that person was raising noise "Bachao Bachao", but it has not come on record as to why only one person was arrested and challaned and the other person, namely Wajib, was not even challaned. It is not the case of the prosecution that the other person was found innocent during the investigation. In these circumstances, the prosecution has failed to prove the complete chain of circumstances, which led to only one and the one conclusion that the accused has committed the crime.
Crl. A. No. 595-DBA of 2001 -11-
18. In view of the above, we are of the opinion that the view framed by the learned trial court is not perverse. From the evidence on the record, such a view is possible. It is well settled that if two views are possible on the evidence adduced in a particular case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
19. Consequently, we do not find any merit in the instant appeal and the same is, hereby, dismissed.
( SATISH KUMAR MITTAL )
JUDGE
February 03, 2010 ( JORA SINGH )
ndj JUDGE