Punjab-Haryana High Court
Harish Kumar And Another vs State Of Punjab on 30 July, 2008
Author: Jora Singh
Bench: Jora Singh
Crl. Appeal No. 40-SB of 1998 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
*****
Crl. Appeal No. 40-SB of 1998 Date of decision : July 30, 2008 ***** Harish Kumar and another ............Appellants Versus State of Punjab ...........Respondent ***** CORAM: HON'BLE MR. JUSTICE JORA SINGH ***** Present: Mr. Vikram K. Chaudhri, Advocate for the appellants.
Mr. P.S Grewal, Assistant Advocate General, Punjab.
***** JORA SINGH, J Harish Kumar and Vikramjit Singh through the instant appeal have impugned the judgment/order dated 9.1.1998 in Sessions Case No.56 of 1996 bearing First Information Report No.15/96 registered under Sections 307/34 IPC at Police Station `B' Divn, Amritsar. Vide the impugned judgment/order, appellants were convicted under Section 307/34 IPC, Harish Kumar, appellant was sentenced to undergo RI for five years and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo RI for six months. Whereas, Vikramjit Singh alias Baba was sentenced to undergo RI for five years and to pay a fine of Rs.1000/- and in default Crl. Appeal No. 40-SB of 1998 2 of payment of fine to further undergo rigorous imprisonment for six months.
On 21.2.1996, ASI, Ajit Singh of P.S `B' Divn. Amritsar while on duty received a message from the Police Station to the effect that Rupinder Singh alias Sonu is lying admitted in Surgical Ward no.4 in Guru Nanak Dev Hospital. On receipt of message, ASI, Ajit Singh along with the police party had gone to Guru Nanak Dev Hospital, Amritsar, where, Rupinder Singh was lying admitted. Application Ex.PK was moved to obtain the opinion of the doctor as to whether the injured is fit to make a statement or not. Doctor opined vide his report Ex.PK/1 that injured is unfit to make a statement. On 22.2.1996 again, Investigating officer had gone to Guru Nanak Dev Hospital, Amritsar. Again application Ex.PL was moved as to whether the injured is fit to make a statement or not. Again doctor opined vide report Ex.PL/1 that injured is unfit to make a statement.
On 23.2.1996 again, Ajit Singh, ASI along with the party had gone to Guru Nanak Dev Hospital, Amritsar. An application Ex.PM was moved to obtain the opinion of doctor as to whether the injured is fit to make a statement or not. Again the doctor opined vide report Ex.PM/1 that the injured is unfit to make a statement. Prince Partap Singh, brother of the injured was present in the hospital. Statement of Prince Partap Singh was recorded. Prince Partap Singh reported to the police that he along with his father and brother Rupinder Singh and other family members is residing in street no.2, Guru Ram Dass Nagar, Sultanwind Road, Amritsar. He Crl. Appeal No. 40-SB of 1998 3 is a T.V mechanic and is carrying on business in street no.3. Rupinder Singh is a scooter mechanic and he is carrying on business in the shed of his residential house. Mangat Ram, resident of Shahid Udham Singh Nagar, Amritsar is the friend of Rupinder Singh. Marriage of the son of Mangat Ram was to be solemnized on 21.2.1996. Shagun ceremony was performed on 20.2.1996. He along with Rupinder Singh on 20.2.1996 at about 12:00 noon had gone to attend Shagun ceremony at the house of Mangat Ram. Friends and relatives of Mangat Ram were also present in the house. After shagun ceremony, relatives of Mangat Ram after taking their meals, started performing Bhangra. There were two parties. One party was of the accused, Harish, Vikramjit Singh and other boys from the street of Mangat Ram. Another party was consisting of the friends of Mangat Ram. Some altercation took place amongst both the bhangra parties. Accused were very angry and started abusing them. Rupinder Singh requested Harish and Vikramjit Singh not to abuse. Baljit Singh was also present there. Complainant and Baljit Singh had stopped the parties from abusing each other. Harish and Vikramjit Singh had left the place where bhangra was being performed. Other persons present there also started leaving the place. Complainant, Prince Partap Singh, his brother, Rupinder Singh and Baljit Singh after leaving the house of Mangat Ram at about 2:00 P.M were present near the chowk. Then they sighted Harish armed with dagger and Vikramjit Singh. They were abusing the complainant-party. Harish raised a lalkara that Rupinder Singh should not be allowed to go and be taught a lesson for insulting them Crl. Appeal No. 40-SB of 1998 4 in the function. Then, Vikrmajit Singh had caught hold of Rupinder Singh. Harish gave two dagger blows to Rupinder Singh. Complainant and the second witness namely, Baljit Singh had rescued Rupinder Singh from the clutches of the accused. After causing injuries, accused had fled away from the spot. Statement was read over to the complainant, Prince Partap Singh who had signed the same in token of its correctness. After making endorsement, statement was sent to the police station on the basis of which formal FIR Ex.PE/2 was registered. Special report was sent to the Illaqa Magistrate.
On 23.2.1996, Prince Partap Singh had produced the clothes worn by the injured namely, Rupinder Singh before ASI, Ajit Singh. Clothes were made into a sealed parcel sealed with the seal bearing impression `AS'. Sealed parcel was taken into police possession vide memo Ex.PG attested by the witnesses. Investigating Officer had gone to spot and prepared a rough site plan Ex.PN.
On 3.3.1996, Harish accused was in the custody of police and on interrogation, suffered disclosure statement that he has kept consealed a dagger near the drain outside the gate of Sakandari Bagh. He knew the same and could get the same recovered. Disclosure statement of the accused Ex. PQ was recorded which was thumb -marked by the accused and attested by the witnesses. Thereafter, a dagger was got recovered from the specified place. Sketch of the dagger was prepared and the dagger was sealed with the seal bearing impression `AS'. Sealed parcel was taken into Crl. Appeal No. 40-SB of 1998 5 police possession vide separate memo attested by the witnesses i.e Ex.PQ/1.
Vikramjit Singh, accused suffered disclosure statement when interrogated by the police and stated that he has kept concealed his clothes stained with blood which he had worn at the time of occurrence near drain in the area of Sakandari Gate. Disclosure statement Ex.PR was recorded, thumb-marked by the accused and attested by the witnesses. In pursuance of the disclosure statement, accused got recovered his clothes stained with blood which were worn by him at the time of occurrence. Clothes were sealed with the seal bearing impression `AS'. Sealed parcel was taken into police possession vide recovery memo Ex.PR/1 attested by the witnesses.
After the completion of the investigation, challan was presented.
Copies of the challan were supplied to the accused and the same were found to be correct after scrutiny.
JMIC, Amritsar had committed the case to the Court of Session for trial vide commitment order dated 9.5.1996.
After hearing learned State counsel, defence counsel for the appellant-accused, learned Sessions judge opined that a prima facie case is made out to frame charge under Section 307/34 IPC. Charge was accordingly framed to which the accused did not plead guilty and claimed trail.
In order to substantiate the charge, prosecution examined as many as eight witnesses.
Crl. Appeal No. 40-SB of 1998 6
PW-1, Dr. Rattanjit Singh had medically examined Rupinder Singh and found the following injuries on his person:
1) A partially healed wound on the left axilla with scab formation
2) A bandage applied on the front side of the abdomen.
Injuries were kept under observation. As per operation notes, injury no.2 was found to be sufficient to cause death in the ordinary course of nature.
PW-2, Prince Partap Singh is the complainant.
PW-4, Rupinder Singh is the injured eye witness. PW-5, Baljit Singh is the second eye witness. He deposed that they were present near the chowk. Accused were sighted. Harish was armed with a dagger. He raised lalkara to catch hold of the injured. Then, Vikramjit Singh had caught hold of Rupinder Singh. Harish gave two dagger blows to Rupinder Singh. Occurrence was witnessed by Prince Partap Singh and Baljit Singh.
PW-3, Rishi Ram had prepared scaled site plan PW-6, Ajit Singh is the Investigating Officer. PW-7, Dr. Vikram Dua had recorded his opinion Ex.PO/1 that Rupinder Singh @ Sonu was fit to make statement.
PW-8, Dr. Satpal stated that Rupinder Singh was lying admitted in GNDU Hospital as an indoor patient. He was operated upon. Ex.PB is the report signed by him along with other doctors. But, on cross-examination, he stated he has not brought the original record.
After close of the prosecution evidence, statements of the Crl. Appeal No. 40-SB of 1998 7 appellants-accused were recorded under Section 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Opportunity was given to lead defence. But no defence was led.
After hearing learned Public Prosecutor for the State and learned counsel for the accused, trial Court opined that accused had committed an offence punishable under Section 307/34 IPC and were directed to undergo imprisonment as aforesaid.
I have heard learned defence counsel for the appellants- accused and learned counsel appearing for the respondent-State.
Defence counsel for the appellants-accused submitted that there is a delay in lodging the FIR. Delay was not explained. Identity of the appellants-accused was not established. There are number of discrepancies which are major and cannot be reconciled. Story qua recovery of weapon and arrest of the appellant-accused inspires no confidence.
Learned counsel for the respondent-State argued that delay was fully explained. No dispute qua identification of the appellants-accused. Discrepancies have occurred with the passage of time. Story inspires confidence.
Submissions put forward by the learned defence counsel were considered and discussed one by one.
First contention of the learned defence counsel for the appellants-accused was that there is a delay in lodging the FIR and delay was not explained.
Crl. Appeal No. 40-SB of 1998 8
I have gone through the file/evidence adduced by the prosecution. Submission put forward by the defence counsel seems to be reasonable one. Occurrence had taken place on 20.2.1996 at 2:00 P.M near chowk. Rupinder Singh was injured. After the occurrence, injured was shifted to Guru Ram Dass hospital, Amritsar and then to Guru Nanak Dev Hospital, Amritsar. Complainant, namely, Prince Partap Singh and Baljit Singh had shifted the injured to Guru Ram Dass Hospital, Amritsar but no record of the hospital to show at what time injured was shifted to the hospital. From the hospital, the injured was shifted to Guru Nanak Dev Hospital, Amritsar. Regarding admission of injured in the hospital, intimation was sent to the police station, but evidence is missing at what time intimation was received from the concerned hospital regarding admission of the injured in the hospital. On 21.2.1996, Ajit Singh, Investigating officer of the case was present near Ranjha di Haveli. There, he received a message from the Police Station regarding admission of the injured in the hospital. On receipt of information from the concerned Police Station, Investigating Officer along with the party had gone to Guru Nanak Dev Hospital. Application was moved to obtain the opinion of the doctor regarding fitness of the injured. But on 21.2.1996, doctor reported that injured is unfit to make a statement. On 21.2.1996, statements of the eye witnesses were not recorded. Investigating Officer along with the party came back to the Police Station. On 22.2.1996 again, Investigating officer had gone to GNDU Hospital. Again, application was moved as to whether injured is fit to make a statement or not. Again, doctor Crl. Appeal No. 40-SB of 1998 9 reported that injured is unfit to make a statement. Again on 23.2.1996, Investigating Officer had gone to hospital. Application Ex.PM dated 23.2.1996 was moved but in the same fashion, doctor reported that injured is unfit to make a statement. On 21.2.1996 and 22.2.1996, eye witnesses were present in the hospital. But no effort was made to record statement of any of the eye witnesses, if injured was unfit to make a statement. On 21.2.1996, Investigating officer received the information regarding the present occurrence. Eye witnesses were also present in the hospital because eye witnesses had shifted the injured to the hospital. Eye witnesses appearing in the Court did not state a word that after admission of the injured in the hospital on 20.2.1996, they came back to their respective houses and were not present in the hospital, meaning thereby that on 21.2.1996, Investigating officer had the intimation regarding the present occurrence, but Investigating Officer had not gone to the spot to inspect the place of occurrence. On 23.2.1996, injured was not fit to make a statement. Then, statement of the complainant was recorded. If injured was unfit to make a statement then statement of the complainant or the second eye witness could easily be recorded on 21.2.1996 or 22.2.1996. Statement of the eye witness is Ex.PE dated 23.2.1996 recorded at about 7:45 P.M. After recording statement, the same was sent to the Police Station. After endorsement, Special report was received by the Illaqa Magistrate on 24.2.1996 at about 3:00 P.M. Delay is fatal if remained unexplained. But, delay itself is not sufficient for the acquittal of the accused. Delay is fatal if evidence shows that story was concocted and Crl. Appeal No. 40-SB of 1998 10 innocent persons were falsely implicated.
Injured and the eye witnesses in Court stated that the names of the accused were not known to them at the time of occurrence. Later on, they came to know about the names of the accused. Complainant, on cross-examination, stated that earlier appellants-accused were not known to him. Baljit Singh had told the names of the appellants-accused. Baljit Singh stated that accused were not known to him prior to the date of occurrence. On the next date, he had gone to the police station. At that time, accused were present in the police station. Names of the accused were disclosed to him when he was requested to identify the appellants-accused on the next date i.e 21.2.1996. Injured Rupinder Singh stated that earlier appellants-accused were not known to him. Names of the accused were disclosed to him when he regained consciousness after 20-25 days. So, in these circumstances, when appellants- accused were not known to the injured and the names were disclosed by the police then delay is fatal. Possibility of implicating the appellants-accused cannot be ruled out.
Next submission of the learned defence counsel was that identity of the accused was not established. No test identification parade. Prosecution story inspires no confidence.
Submission of the learned defence counsel seems to be reasonable one. As discussed in the preceding paragraphs, occurrence had taken place on 20.2.1996 at 2:00 P.M near chowk. Admittedly, number of persons were present at the time of occurrence. But, no one was cited or produced in the court. Report Crl. Appeal No. 40-SB of 1998 11 was lodged on 23.2.1996 at about 7:45 P.M. Evidence shows that complainant-party and the accused were present in the house of Mangat Ram to celebrate the shagun ceremony. While performing bhangra, appellants-accused had an altercation with the complainant-party. Appellants-accused had gone to their house. Complainant-party while present near chowk again sighted the appellants-accused at about 2:00 P.M. Harish was armed with a dagger. Vikramjit Singh was empty handed. As per evidence, Vikramjit Singh had caught hold of the injured then Harish gave two dagger blows to the injured. Prince Partap Singh while appearing as PW-2 in chief stated that injured was shifted to Guru Ram Dass Hospital and then to Guru Nanak Dev Hospital at Amritsar. On cross-examination, he admitted that earlier to the occurrence, appellants-accused were not known to him. Baljit Singh had told the names of the appellants-accused. He had not seen the appellants- accused while causing injuries to Rupinder Singh. As per FIR, Ex.PE complainant came to know about the names of the accused later on. In the Court also, complainant on cross-examination admitted that he had not seen the appellants-accused while causing injuries. Secondly, Baljit Singh had told the names of the appellants-accused who were earlier not known to him. Baljit Singh appeared as PW-5. Baljit Singh on cross-examination stated that number of persons were present at the time of occurrence. But no one came forward. Appellants-accused were not known to him. After 1-2 days names of the appellants-accused were disclosed to them by the police. On the next date, i.e 21.2.1996, he had gone to police station. But, his Crl. Appeal No. 40-SB of 1998 12 statement was not recorded. At that time, accused were in the custody of police. They were requested to identify the accused, meaning thereby on 21.2.1996 accused were in the custody of the police. Eye witnesses had gone to the police station. Their statements were not recorded. Eye witnesses were directed to identify the assailants. Meaning thereby, at the time of occurrence, appellants-accused were not known to the eye witnesses.
Rupinder Singh, PW-4, the injured eye witness, in chief stated that on receipt of injuries, he became unconscious and regained consciousness after 20-25 days. Appellants-accused were not known to him earlier to the occurrence. Names of the appellants- accused were disclosed to him when he regained consciousness. After discharge from the hospital, police came to his house. Then, he was interrogated. So as per injured eye witness, appellants- accused were not known to him. No test identification parade. No explanation why test identification parade was not held when the accused were not known to the injured eye witness. As per evidence, appellants-accused were arrested on 3.3.1996. If appellants-accused were arrested on 3.3.1996, then, how the eye witness was directed to identify the assailants while present in the police station on 21.2.1996.
As per story, Shagun ceremony was being performed in the house of one Mangat Ram. After the ceremony, friends, relatives and boys of the street started performing bhangra. There were two bhangra parties. Appellants-accused were in one party. Complainant-party was in another party. Thereafter, some Crl. Appeal No. 40-SB of 1998 13 altercation took place amongst both the parties. One party started abusing the other. Number of persons were present at the time of occurrence. When the appellants-accused were not known to the eye witnesses and injured, earlier to the present occurrence, then efforts should have been made to arrange the test identification parade. If appellants-accused were in the custody of the police on the next date i.e on 21.2.1996, and the eye witnesses were requested to identify the accused, then story qua arrest of the accused on 3.3.1996 is doubtful. After arrest of the accused, they were interrogated. Accused had suffered disclosure statements voluntarily. Harish got recovered a dagger as per disclosure statement. Second accused got recovered clothes stained with blood from the specified place as per his disclosure statement. If on 21.2.1996, appellants-accused were in the custody of the police and the eye witnesses were requested to identify them, then why arrest of the appellants-accused was shown on 3.3.1996. So failure to arrange test identification parade to identify the appellants-accused who were not known to the injured/eye witness at the time of occurrence shows that story is not natural one.
Next submission of the learned defence counsel was that there are many discrepancies which can not be reconciled.
I have gone through the file and agree with the contention of the learned defence counsel. As discussed earlier, occurrence had taken place on 20.2.1996 at 2:00 P.M. On the next date i.e 21.2.1996, on receipt of information from the concerned police station, IO of the case had gone to Guru Nanak Dev Hospital, Crl. Appeal No. 40-SB of 1998 14 Amritsar where injured was lying admitted. Eye witnesses were also present. But no explanation why their statements were not recorded. IO should have inspected the place of occurrence because occurrence was witnessed by number of other persons who had come to attend shagun ceremony of Mangat Ram. If on 21.2.1996, IO was not in a position to visit the place of occurrence, then on the next date i.e 22.2.2008, IO should have visited the place of occurrence because on 22.2.1996 again, injured was unfit to make a statement. Injured on cross-examination admitted that he remained unconscious for about 20-25 days. After he regained consciousness, and came to his house after discharge from the concerned hospital, then, police came and his statement was recorded. Whereas statement of the injured under Section 161 Cr.P.C dated 25.2.1996 was recorded. On 21.2.1996, eye witnesses were requested to identify the accused present in the police station. Whereas file shows that on 3.3.1996, both the appellants-accused were arrested. So discrepancies are also fatal and cannot be reconciled but trial Court opined that there is no delay in lodging the FIR. Failure to arrange test identification parade also not fatal and lastly presence of the eye witnesses is natural.
The approach of the trial Court is not correct one. Identity of the appellants-accused is doubtful.
No other contention was put forward.
In view of the all discussed above, impugned judgment suffers from illegality and infirmity and the appeal is accepted. Appellants-accused are acquitted of all the charges levelled against Crl. Appeal No. 40-SB of 1998 15 them.
July 30, 2008 ( JORA SINGH ) ritu JUDGE