Punjab-Haryana High Court
Surinder Kumar vs State Of Haryana And Others on 10 December, 2008
Author: Jitendra Chauhan
Bench: K.S.Garewal, Jitendra Chauhan
Crl. Appeal No. 376 DBA of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 376 DBA of 2008
Date of decision: 10.12.2008
Surinder Kumar
...Appellant
Versus
State of Haryana and others.
...Respondents
CORAM: HON'BLE MR.JUSTICE K.S.GAREWAL
HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. M.B.Jain, Advocate
for the appellant.
Mr.S.S.Randhawa, Addl. A.G., Haryana.
Mr.A.B.Dalal, Advocate with
Mr.Bijender Dhankhar, Advocate
for respondent Nos. 1 and 2.
JITENDRA CHAUHAN, J.
The present appeal has been filed against the order of acquittal dated 3.10.2007 passed by the Additional Sessions Judge, Gurgaon.
On a complaint filed by the appellant, Surinder Kumar, the accused/appellants were summoned to stand trial under Section 307/34 read with Sections 25/54/59 of the Arms Act. The case of the accused was committed to the court of Sessions on 27.8.2004 by the Judicial Magistrate First Class, Gurgaon.
Allegations contained in the complaint Exhibit PD stand reflected in para two of the order of the trial Court, which reads as under:
"Mahender Pal (PW6), brother of the complainant, alongwith three others were falsely implicated in a case FIR No.134/2001 under Sections 302, 364, 365 IPC read with Section 34 IPC relating to Police Station, Pataudi for the murder of Man Crl. Appeal No. 376 DBA of 2008 2 Mohan son of Sukhbir r/o Mumtajpur, Police Station, Pataudi, District Gurgaon. Mahender Pal was facing trial in the said case and was in judicial custody. The wife of Mahender Pal was diagnosed with stone by the doctor of General Hospital, Gurgaon and opined for surgical operation. For that reason Mahender Pal applied for interim bail in the court of Sh. V.P.Bishnoi, the then learned Additional Sessions Judge, Gurgaon. The said bail application was accepted and Mahender Pal was ordered to be released on interim bail for a period from
2.4.2002 to 23.4.2002.
On 19.4.2002 at around 4.00 p.m. the complainant and his brother Mahender Pal had gone to Village Jeetpura, District Rewari to meet some relative for personal work on scooter. The complainant and his brother started back for Pataudi at around 9.00 p.m. Mahender Pal was driving the scooter and the complainant was pillion rider. At around 9.30 p.m. when they reached one kilometer away from Village Mumtajpur towards Pataudi near a bad culvert, two persons came from behind on a scooter and overtook the complainant and his brother. The accused were those two persons. The accused signalled the complainant and his brother to stop on which the scooter was stopped by Mahender Pal. As soon as the scooter was stopped, the accused Surender caught hold Mahender Pal and the accused Manoj fired from his country made pistol on the right side of back of Mahender Pal with the intention to kill him. The complainant ran away from the spot leaving behind his Crl. Appeal No. 376 DBA of 2008 3 brother and the scooter at the spot of occurrence due to fear and apprehending danger to his life as well. The complainant reached Pataudi via fields and informed his uncle Rajender Singh about the occurrence and then the complainant alongwith this uncle started on scooter for the place of occurrence. However, in the way near Dharamshala at Pataudi, Ajit son of Parkash, r/o Mumtajpur met them alongwith the injured Mahender Pal in his truck. Ram Niwas, brother of the complainant, also came from behind in a Marshal jeep. Mahender Pal was shifted in the said Marshal jeep and was taken to General Hospital, Gurgaon where Mahender Pal was medico legally examined by the doctor on duty and referred Mahender Pal to Safdarjung Hospital, Delhi. However, due to serious condition of the injured Mahender Pal, he was taken to Kalyani Hospital, Gurgaon on 19.4.2002. Doctor at Kalyani Hospital, Gurgaon asked the complainant to arrange blood for Mahender Pal and when the complainant alongwith his uncle had gone to Sector-5, Gurgaon for arranging blood, then they came to know that the police of Pataudi had visited Kalyani Hospital, Gurgaon in their absence. On 20.2.2002 the complainant went to Police Station, Pataudi and lodged FIR No. 80 dated 20.4.2002 under Sections 307/34 IPC read with Section 25 of the Arms Act. Mahender Pal remained admitted in Kalyani Hospital, Gurgaon and was operated and several pellets were removed from his body. The police conducted the investigation in a partial manner. Anil, brother of accused Crl. Appeal No. 376 DBA of 2008 4 Manoj, was married to the daughter of ASI Ram Chander, who was posted as Reader of the Superintendent of Police, Gurgaon. Under the influence of ASI Ram Chander, the police officials had conducted shid-shod investigation. Even the statement of the injured under Section 161 Cr.P.C. was recorded in a distorted manner. The complainant later came to know from press report that police has sent a cancellation report pertaining to this FIR. With these allegations the complainant filed the complaint on 17.5.2002. In preliminary evidence Dr.Subhash Khanna was examined as PW1, Constable Suresh Kumar as PW2, Ajit Singh as PW3 and injured Mahender Pal as PW4. Thereafter vide order dated 7.6.2002, the then learned Judicial Magistrate Ist Class, Gurgaon called for the report of Station House Officer, Police Station, Pataudi pertaining to FIR No. 80 dated 20.4.2002 under Sections 307/34 IPC read with Section 25 of the Arms Act. The Station House Officer, Police Station, Pataudi sent cancellation report in the said FIR. Thereafter the complainant Surinder Kumar appeared into the witness box as PW5 and examined Jai Parkash as PW6 and Dr. Renu as PW7. Vide order dated 12.4.2004, the accused were ordered to be summoned under Sections 307/34 IPC and Section 25 of the Arms Act by Shri Jaibir Singh, the then learned Judicial Magistrate Ist Class, Gurgaon. After appearance of the accused and supplying them with the copies as envisaged under Section 208 Cr.P.C., the case was committed to the court of Session vide order dated 27.8.2004 as observed above.
Crl. Appeal No. 376 DBA of 2008 5On the basis of findings recorded by the committal Court, the trial Court charge-sheeted the accused on 5.11.2004 under Section 307 read with Section 34 of the Indian Penal Code.
To prove its case, the prosecution examined eight witnesses, namely, Dr. Subhash Khanna, as PW-1, Abhay Ram as PW-2, Dr. Veer Bhushan as PW-3, Constable Dinesh Kumar as PW-4, complainant Surinder Kumar as PW-5, injured Mahender Pal as PW-6, Dr. Renu Sharma as PW-7, and Jai Parkash as PW-8.
After recording the statements of the prosecution, the accused were examined under Section 313 of the Code of Criminal Procedure. The accused denied all the allegations and evidence against them. The accused pleaded false implication and claimed that they had no concern with the alleged incident and had been falsely implicated. The accused in their defence examined Contractor Maha Singh as DW-1 and Constable Tika Ram as DW-2. As per the documentary evidence alongwith the cancellation report, some other documents were also tendered before the trial Court.
The trial Court primarily passed the order of acquittal on the ground that there were material contradictions in the statements of star witnesses namely PW-5, Surender Kumar and PW-6, Mahender Pal, the injured. Apart from the contradiction, the trial Court recorded that on the basis of evidence produced by DW-1, Maha Singh, the accused-Surender was on duty from 2.00 p.m. to 10.00 p.m on 19.4.2002, the date of occurrence.
PW-1, Dr. Subhash Khanna, Senior Consultant, Kalyani Hospital, Gurgaon stated that on 19.4.2002 at around 11.50 p.m. Mahender Pal was admitted in emergency ward with alleged history of fire arm injury. Crl. Appeal No. 376 DBA of 2008 6 The patient had been referred from Civil Hospital, Gurgaon. As per the hospital record, the accused was discharged on 29.4.2002, though he moved out of the hospital on 30.4.2002 at 11.00 a.m. It was admitted by Dr. Subhash Khanna, DW-1, in cross-examination that at the time of examination of the patient, he was wearing the clothes which were not blood stained. It was further opined that as the patient was first attended by some other doctor, therefore, it was not possible to tell the exact duration of injuries. Dr. Khanna was also unable to indicate the distance from which the injury on the person of the injured had been caused. The patient was accompanied by his brother Surender Kumar. It was further stated that the doctor of the Civil Hospital, Gurgaon, did not seek any opinion from him regarding the nature of injury of the patient. He also stated though the patient remained drowsy before operation yet was fully oriented and conscious throughout.
PW-3, Dr. Vir Bhan from Civil Hospital, Safdarjung Hospital, New Delhi, deposed that the patient was admitted on 19.5.2002 and was discharged on 24.5.2002. The patient on examination was found to be conscious and oriented. The patient had been visiting PW-3 for follow up treatment after discharge as well.
Constable Dinesh Kumar, PW-4, presented a cancellation report dated 27.10.2002. However, the present witness was not able to tell as to whether the proceedings under Section 182 Cr.P.C. were initiated against the complainant or not. It would be relevant to detail the factors leading to the filing of the cancellation report in the instant case. The following factors made the case of the complainant highly doubtful:
a) Blood was not found at the place of occurrence;
Crl. Appeal No. 376 DBA of 2008 7
b) The scooter was in a standing condition;
c) No blood in the truck;
d) Presence of the accused to be doubtful at the spot;
e) Leaving of Mahender Pal in an injured condition at the
spot by his brother;
f) Not informing the police of Police Station, Pataudi;
g) Not taking first aid at CHC, Pataudi;
h) No surgical operation of the wife of Mahender Pal;
i) Not lodging the report the same day.
As per the deposition of PW-5, Surinder Kumar, the complainant, he alongwith his brother Mahender Pal had gone to village Jeetpura on scooter. While they were returning, two persons overtook them and thereafter the accused Surender caught hold of his brother Mahender Pal, and the accused Manoj fired from a close range towards right side of the stomach. He further stated that he did not know why the accused fired upon his brother. Thereafter the complainant ran away from the spot leaving his brother and scooter. At a distance of 200 yards, a truck was coming from the front side, and on request, the injured was put in the truck. But in the meantime, his brother Ram Niwas brought a Marshal jeep from village Garauli and thereafter the injured was moved to Civil Hospital, Gurgaon. As the condition of the patient was found to be serious, he was referred to the Safdarjung Hospital, New Delhi. Instead, the complainant took the patient to Kalyani Hospital, Gurgaon.
On cross-examination, the complainant stated that accused overtook them and stopped their scooter, there was scuffle between his brother and the accused, and he kept the scooter in starting mode. He was Crl. Appeal No. 376 DBA of 2008 8 unable to tell specifically from which portion of the shirt his brother had been caught by the accused. He was also not able to point out as to whether he had got recorded number of the scooter used by the accused. As per this witness, the shot was fired from a distance of 1½-2'. He had not seen his brother bleeding but he had fallen down on the road, and that his brother regained consciousness on 23rd, i.e., two days after the incident.
The injured, Mahender Pal, PW-6, corroborated the version put forth by his brother, PW-5. It was further stated that he was an accused in a murder case in which Manmohan had died, but he had been acquitted in the said case. The accused Surender being cousin of the deceased Manmohan and the accused Manoj being son of Munshi Ram, brother of Sukhbir, father of deceased Man Mohan had a motive to eliminate him. In cross- examination he stated that the police interrogated him four times between 22.4.2002 to 24.4.2002.
PW-7, Dr Renu Sharma, Medical Officer, General Hospital, Gurgaon, recorded the following injuries on the person of the injured, Surender, on 19.4.2002:
1. A lacerated wound of 2 x 2 cm circular surrounded by black colour of about 1 x 2 cm wide. Tattooing and blackening was present. There was fresh bleeding present. About .5cm green colour present around the wound.
As per her opinion, the injury no. 1 was dangerous to life. She further admitted that she had not consulted any medical journal for tendering the opinion that the injury mentioned in Exhibit-PE was dangerous to life. DW-1, Maha Singh, an employee in M/s Asahi India Glass Limited, Bawal, presented the original attendance chart of labour Crl. Appeal No. 376 DBA of 2008 9 working in the Firm. On the basis of the record maintained by the said Firm, the accused Surender was on duty in the said factory from 2.00 p.m. to 10.00 p.m. Exhibit D1, the attendance chart, was placed on record. Original shift register, Exhibit D2, was also presented before the Court by Dharmender son of Kailash. The police visited this witness and enquired as to whether the accused Surinder was present in the factory on 19.4.2002 from 2.00 p.m. to 10.00 p.m. On the basis of the aforementioned material, the trial Court came to the conclusion that there were material contradictions in the statements of PW-5 and PW-6. As per the statement of Dr. Subhash Khanna, PW-1, no blood stains were noticed on the clothes of the patient, and that the patient was fully oriented and conscious.
The trial Court on observing the material contradictions in the statements of PW-5 and PW-6 and on analysis of the statements of the doctors, coupled with the statement of DW-1, Maha Singh, and in the light of the reasons recorded in the cancellation report dated 27.10.2002 reached the conclusion that the prosecution failed to establish its case beyond reasonable shadow of doubt.
The present appeal was filed alongwith the application for condonation of delay and an application for leave to appeal. The delay was condoned and leave to appeal was granted, and the appeal was ordered to be listed for final hearing on 8.9.2008 by this Court.
The counsel for the appellant submitted that investigation in the present case was conducted in a partial manner because Anil brother of accused Manoj, respondent No.2, was married to the daughter of ASI Ram Chander, who remained posted as Reader to Superintendent of Police, Crl. Appeal No. 376 DBA of 2008 10 Gurgaon. Cancellation report was rightly not accepted by the Illaqa Magistrate, Gurgaon. There was no material contradiction between the statements of PW-5 and PW-6. There was strong motive to cause harm to the appellant on account of previous enmity between the parties.
Learned counsel for the State has submitted that there are material contradictions in the statements of star witnesses PW-5 and PW-6 regarding the manner the injuries have been caused. As per the statement of PW-2, Dr. Subhash Khanna, the injured was fully oriented and conscious. The injured was referred from Civil Hospital, Gurgaon to Safdarjang Hospital, whereas he was admitted at Kalyani Hospital, at Gurgaon, and thereafter on 19.5.2002 shifted to Safdarjung Hospital, New Delhi. It was within the sight of the complainant, that the alleged shot was fired. However, in his cross-examination, he stated that he had not seen whether his brother had started bleeding or not, but he had fallen on the road and that the injured was conscious.
There is no substance in the argument that the case was investigated in a partial manner. As per the statement of DW-2, Tika Ram, who brought the complete record pertaining to the FIR in the instant case, the case was investigated by CIA-Ist Gurgaon and by Sub-Inspector Jagminder Singh, Station House Officer, Police Station Pataudi. Subsequently the investigation was conducted by Inspector Sumer Singh. Thereafter, investigation of the case was transferred to Inspector Jai Kishan and then ASI Nand Ram and Sub Inspector Vijender Singh. Therefore, there was no scope left to raise any suspicion that the investigation was conducted in a partial manner on account of the accused being a relation of ASI Ram Chander. The reasons for submitting cancellation report are material and Crl. Appeal No. 376 DBA of 2008 11 substantial, and go to the root of the matter, and the cancellation report was rightly filed.
We have heard the learned counsel for the parties and perused the record.
Admittedly, the injured Mahender Pal was facing trial under Section 302 IPC and was released on interim bail for a period from 2.4.2002 to 23.4.2002 for treatment of his wife. The present incident occurred on 19.4.2002. It is difficult to accept that when the injured was to surrender back to suffer further judicial custody, there was any necessity to cause injury to him. In this context, it is also important to note that a single shot was allegedly fired from point blank distance. If the accused wanted to kill Mahinder Pal, he had the opportunity to execute his plan. The conduct of the complainant, Surender Kumar, is also unnatural as he remained sitting on scooter when his brother was engaged in a scuffle with the accused. Moreover, he ran away from the scene of occurrence. After the alleged incident, the injured was put in the truck coming from the opposite side, for taking him to the hospital. However, for the reasons known to the complainant, the driver of the truck Ajit Singh was not cited as witness and was not examined. The non-citing of Ajit Singh as witness, coupled with the conduct of the complainant and contradictions between the statements of PW-5, the complainant and PW-6, the injured, make the case of the complainant doubtful.
Apart from the above, there is nothing on record to contradict the statement of DW-1, Maha Singh. As per the record maintained by M/s. Asahi India Limited, Bawal, the accused-Surender Kumar was on duty on 19.4.2002 from 2.00 p.m. to 10 p.m. As the evidence of the complainant and his brother is not cogent, trustworthy and free from contradictions, Crl. Appeal No. 376 DBA of 2008 12 hence the statement of DW-1, Maha Singh, based on the official record acquires greater significance.
The case was investigated by different Police Officers of different Police Stations, therefore, the allegation of partiality in the investigation, not being based on any material, does not appeal to us. The trial Court has taken most probable and possible view in acquitting the accused. Learned counsel for the appellant has not been able to persuade us to take a contrary view.
Even if the conduct of the complainant at the time of occurrence is ignored for the reason that every person does not act or react in the same manner, there are other glaring contradictions with regard to the conduct of the complainant, which cannot be ignored. The Hon'ble Supreme Court in Mainpal and another v. State of Haryana and others, AIR 2004 SC 2158 observed as under:
12. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. As a matter of fact, in an appeal against acquittal, the High Court as the Court of first appeal is obliged to go into greater detail of the evidence to see whether any miscarriage has resulted from the order of acquittal, though has to act with great circumspection and utmost care before ordering the reversal of an acquittal.
Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the Crl. Appeal No. 376 DBA of 2008 13 case, one pertaining to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence.
In view of the above discussion, the present appeal is dismissed. The bail bonds of respondent Nos. 2 and 3 stand discharged.
(JITENDRA CHAUHAN)
JUDGE
10.12.2008 (K.S.GAREWAL)
mk JUDGE
Note: Whether referred to the Reporter? = Yes/No