Punjab-Haryana High Court
Kala @ Reshman Etc vs State Of Hy on 5 September, 2014
Author: Kuldip Singh
Bench: Kuldip Singh
Crl. Appeal No.S-628-SB of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.S-628-SB of 2004
Date of decision: 5.9.2014
Kala alias Reshman and others
..Appellants
Versus
State of Haryana
..Respondent
CORAM: HON'BLE MR. JUSTICE KULDIP SINGH
Present: Mr. Sunil Panwar, Advocate for the appellants.
Mr.Dhruv Dayal, DAG Haryana for the respondent-State.
Kuldip Singh, J.
Accused-appellants Kala alias Reshman, Nooru, Hasan, Juber, Akhtar, Yunus, Unnas and Ummar all residing within the jurisdiction of Police Station Tapukra, Rajasthan filed this appeal against the judgment and order dated 1.3.2004 passed by learned Additional Sessions Judge, Fast Track Court, Gurgaon vide which they were convicted under Sections 148/353/149, 307/149 and 427/ 149 IPC and sentenced as under:
U/s 148 IPC : To undergo RI for one year each U/ss 353/149 IPC : To undergo RI for one year each. U/s 307/149 IPC : To undergo RI for 2 years and to pay a fine of Rs.500/- each. In default of payment of fine all the accused shall further undergo RI MEENU KUMARI 2014.09.09 10:05 for 3 months. I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-628-SB of 2004 -2- U/s 427/149 IPC : To undergo RI for 6 months each.
All the sentences were directed to run concurrently. On 30.11.2001, Sh.Narender Mohan Monga (PW10) accompanied by Sh.S.P.Sharma, Sub Divisional Magistrate (Nuh) (PW1), Sh.Mahender Singh Bhatti, Deputy Superintendent of Police, Nuh (PW4) accompanied by some other Mining Officers and 9-10 police officials visited Noorpur Stone quarry after receiving secret information regarding illegal mining. They reached there at about 12.15 p.m. Sh.Narender Mohan Monga had earlier conducted the checking of these mines. He had found that the persons indulging in illegal mining are dangerous people and had previously indulged in stone pelting on the police party. Therefore, he had sought the help of Sub divisional Magistrate, Deputy Superintendent of police and police force. On reaching the spot they found that many labourers were indulging in illegal mining of stones. On seeing the jeeps of the complainant party from a distance, the said labourers climbed the hill tops and could not be caught. At the spot, two trucks loaded with the stones were found. The drivers of said trucks on seeing the complainant party from a distance left the trucks at the spot and ran away. When the complainant and his associates tried to take the trucks with them, 40-50 persons who were indulging in illegal mining, surrounded the complainant party and started quarreling with them. They started pelting stones on the complainant party and their vehicles. As a result of which wind-screen of the jeep of DSP bearing registration No.HR-26J-7993 was smashed and the Tirpal (cover) of MEENU KUMARI 2014.09.09 10:05 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-628-SB of 2004 -3- jeep of SDM bearing registration No.HR-27-2700 was torn and the bonnet was dented. Thereafter, SDM and the police officials called additional force from the nearby Police Stations Nuh, Tawru and Gurgaon. Thereafter, Sub Divisional Magistrate announced on public address system that the stone pelting should be stopped otherwise the police will start firing gun-shots. However, when the warning did not have a positive effect, the police was ordered to open fire in the air. As more people started pelting stones on the complainant party and also blasted a nearby mine, police fired 10-12 gun shots, as a result of which assailants ran away through the hilly path. As the assailants had indulged in illegal mining and had assaulted the government servants and had also attempted to kill them, therefore, on the basis of complaint Ex.PJ, formal FIR Ex.PG/1 was registered against the accused.
From the spot, 1½ kg. explosive as well as 3 meter safety wire was also recovered and the same were taken into possession vide recovery memo Ex.PE. Rough site plan Ex.PL of place of occurrence was also prepared. During the course of investigation, explosive and fused wires were got tested from the laboratory which submitted reports Ex.PA and Ex.PA/1.
After the completion of investigation, challan was presented against the accused in the Court.
Accused were charge sheeted under Sections 148/353/307/427/149 IPC to which they pleaded not guilty and claimed trial.
MEENU KUMARI2014.09.09 10:05 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-628-SB of 2004 -4-
The prosecution examined Shiv Parshad Sharma as PW1, Rajbir Singh as PW2, HC Jai Kishan as PW3, DSP Sh.M.S.Bhatti as PW4, Ved Parkash, Mining Inspector as PW5, Har Gian, Patwari as PW6, ASI Harender Singh as PW7, Om Parkash Dahiya as PW8, ASI Mahipal as PW9, Narender Mohan Monga as PW10, Virender Singh as PW11, Constable Tejpal Singh as PW12, Sub Inspector Satender Kumar as PW13, Ashok Kumar as PW14 and ASI Phool Singh as PW15.
When examined under Section 313 Cr.P.C. accused pleaded that they are innocent and they have been falsely implicated in the present case.
Accused did not lead any evidence in defence.
I have heard learned counsel for the parties and have gone through the case file carefully.
PW10 Narender Mohan Monga, complainant has deposed that on 30.11.2001 when he was posted as Mining Officer, Department of Mines and Geology, Govt. of Haryana at Gurgaon, he had visited the place of occurrence at 12.15 p.m. and found 40-45 persons working as labourers in the mines and were stealing stones. Two trucks loaded with stones were also found at the spot. The trucks were without number plates. After seeing them, the said persons ran away towards the upper side of the hill. They tried to take loaded trucks into possession. Then those persons from the hill top started dashing stones upon them. He further stated that he was accompanied by Mr.S.P.Sharma, S.D.M Nuh, Mr.M.S.Bhatti DSP, four MEENU KUMARI 2014.09.09 10:05 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-628-SB of 2004 -5- Inspectors of Mines, 12 police officials and 5-6 mining guards. They were having three vehicles. The Sub Divisional Magistrate gave warning to the said persons not to throw stones but they did not stop. Thereafter, SDM ordered firing and 10-12 rounds were fired in the air. Then those persons ran away but some of them stayed there. The said persons conducted blast in order to frighten them. From the spot, vide recovery memo Ex.PE they took into possession 1½ -2 kg of ammonium nitrate and safety fuse. He stated that he cannot name the persons who opened the attack on them. In cross examination, he stated that engine and chasis number of the truck were not noted by him or the Inspectors. The trucks were not brought by them to the Police Station. He further stated that no one suffered any injury in the act of stone pelting. The accused were throwing stones from the height of 30 meters. He did not identify any of the labourers. No Inspector gave him name of any of the accused. To support his statement, Sh.M.S.Bhatti, the then DSP (PW4), Ved Parkash, Mining Inspector as PW5, Virender Singh as PW11 and Ashok Kumar PW14 also appeared in the Court and also made more or less the similar statements. All of them identified the accused in the Court but stated that they cannot tell the names of the accused.
PW5 Ved Parkash, however, asserted that trucks were taken into possession.
PW15 ASI Phool Singh, Investigating Officer stated that on receiving information, he reached the spot and received an application Ex.PJ moved by complainant Narender Mohan Monga. MEENU KUMARI 2014.09.09 10:05 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-628-SB of 2004 -6- He also prepared rough site plan and recorded the statements of witnesses. In his cross-examination, he stated that he did not take photographs of the place of occurrence. The stones and broken pieces of glass of the damaged vehicles were also not taken into possession.
Learned counsel for the appellants vehemently argued that the occurrence took place within the jurisdiction of Police Stations Taoru, District Nuh. However, all the accused belong to Rajasthan. They are stated to be labourers but none of the witnesses identified them at the spot. Then it is strange as to how their names came to the notice of the Investigating Officer and how they were arrested. The Investigating Officer has not revealed anything as to how the identity of the accused was established. There were about 40-50 persons. Complainant Narender Mohan Monga has stated that accused were throwing stones from a distance of 30 meters whereas Ved Parkash, Mining Officer has stated that they were throwing stones from a distance of 50-100 meters. The action was undertaken from the hill top. Therefore, from the said distance, it is not possible to identify the accused. Therefore, heavy burden was placed on the prosecution to prove the identity of the accused, who were involved in stone pelting on the Mining Officers, police party and the Sub Divisional Magistrate. Unfortunately, in this regard, no evidence was collected. Therefore, identity of the accused is not established. No identification parade was conducted. Mere identification in the Court in these circumstances is not sufficient to hold them guilty. MEENU KUMARI 2014.09.09 10:05 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-628-SB of 2004 -7-
Further, it comes out that in the stone pelting, none of the members of the complainant party were injured. They probably took shelter here and there when the stones were being pelted from hilltop by the labourers. In these circumstances, one fails to understand as to how Section 307 IPC is attracted. The labourers were protesting against the action of the Mining Officers in stopping them from illegal mining and taking into possession two trucks loaded with stolen stones.
In fact, it comes out that the case was badly investigated. I am of the view that it was the compulsion of the police to register a case, as the police has fired in the air to disperse the mob. Thereafter, it appears that Investigating Agency was not interested in conducting any further investigation. At random, the present appellants who belong to Rajathan, were arrested without verifying their identity. No photographs were taken at the spot. The damaged vehicles were not taken into possession nor the damaged vehicles of the SDM or Mining Officer were got mechanically examined to assess the damage so as to prove the offence under Section 427 IPC. Not even one piece of the pelted stone was taken into possession to support the prosecution case. It is pertinent to mention that the appellants are alleged to be amongst 40-50 persons, who were working as labourers. It is not the prosecution case that they were indulging in illegal mining of their own. Somebody else is likely to have engaged them for this purpose. No effort was made to establish the identity of the persons, who had engaged them for MEENU KUMARI 2014.09.09 10:05 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-628-SB of 2004 -8- illegal mining. Even the trucks found at the spot were not taken into possession. Needless to say that their ownership was also not got verified so as to establish the identity of the people behind the illegal mining. Therefore, it appears that the police was not interested to properly investigate the case and establishing the identity of the real culprits behind the illegal mining which clearly depicts that there might be a collusion between the Investigating agency and the mining mafia.
It being so, I am of the view that charges against the accused are not proved beyond all reasonable doubts. Accordingly, they are entitled to benefit of doubt. Consequently, the present appeal is allowed. Impugned judgment and order of sentence are set aside. The accused are acquitted of the charges framed against them. Fine paid by them be refunded to them.
( Kuldip Singh ) 5.9.2014 Judge Meenu MEENU KUMARI 2014.09.09 10:05 I attest to the accuracy and integrity of this document High Court, Chandigarh