Punjab-Haryana High Court
Closs London (U.K.) vs State Of Haryana on 15 February, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
Criminal Appeal No.92-DB of 2002
1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No.92-DB of 2004
Date of decision: February 15 ,2010
Ajit Singh son of Shri Dharam Singh resident of 200 HAY MILL
CLOSS LONDON (U.K.).
V.
State of Haryana
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE M.JEYAPAUL
Present: Mr. S.S. Bahl,Advocate, for the appellant.
Mr.S.S.Randhawa,Additional Advocate General,
Haryana
M.Jeyapaul,J.
The sole accused who stood trial before the Sessions Judge, Gurgaon, was convicted for the offence under Section 302 of the Indian and sentenced to undergo life imprisonment with fine of Rs.5,000/-, in default to undergo a further period of six months. Aggrieved by the conviction recorded and sentenced imposed by the trial Court, the accused has preferred the present appeal. Prosectuion version:
2. (a ) Ajit Singh and Kuldeep Singh are co-brothers. The accused is a permanent resident of United States of America. PW15 Criminal Appeal No.92-DB of 2002 2 Mukesh Mehta was familiar to deceased Kuldeep Singh as he was his neighbour. On 13.4.2002 deceased Kuldip Singh came to him and informed that he was waiting for his co--brother Ajit Singh. He also informed him that Ajit Singh had already reached ISBT Delhi and made a request to use his mobile to contact Ajit Singh. The deceased contacted the accused using the mobile of PW15 and conveyed to him that he was proceeding to the shop of PW15 from where he could be picked up. The deceased Kuldeep Singh had tea with him and informed him that he would be accompanying his co-
brother for 3 or 4 days. Kuldeep Singh had a telephonic conversation again with the accused Ajit Singh over mobile phone and he got instructions from accused Ajit Singh to wait for him outside the shop of PW15. After a short while PW15 came out of is shop and saw the deceased Kuldeep Singh boarding a car in which Ajit Singh was travelling.
(b) On 13.4.2002 PW2, Suresh, a milk vender hailing from Harkesh Nagar, Delhi had been to his village Nayagaon by Scooter. While returning to Delhi from his village he purchased a beer bottle at Dundahera border having reached at 9.15 pm on the said day. Deceased Kuldeep Singh who was consuming liquor along with another person called him to an Indica car where he was sitting. PW2 Suresh informed him that he was proceeding to his house. He also sat there for about 25 minutes and shared liquor with them. During that time, deceased Kuldeep Singh introduced him to the accused Ajit Singh as his London based co-brother.
( c ) PW17 ASI Subhash Chander incharge of Police Criminal Appeal No.92-DB of 2002 3 Post Badshahpur was present at Dogharbandh Tigra Road along with two constables when Mange Ram met him and made a statement Ex.PD/1. In his statement Mange Ram had disclosed that when he reached Didar Chowk at about 7.00 am on 14.4.2002 he saw a dead body of an unknown person by the side of the road. It appears that some unknown driver of a vehicle had hit him by rash and negligent driving and on account of which he had died. PW17 made an endorsement Ex.PD/2 on the said statement and sent the same to the Police Station for registration of the case through Constable Manoj Kumar for registration of the case.
( d ) PW3 SI Charan Singh attached to Sadar Gurgaon Police Station recorded formal First Information Report Ex.PD, for offences under Section 279 and 304-A of the Indian Penal Code.
( e ) PW17 reached the spot along with Constable Faqir Chand. He summoned the photographer PW5 Gajender Singh to take photographs of the dead body. He recorded the statement of Rati Ram and completed the inquest proceedings. He also prepared rough site plan Ex.PQ. On the same evening the dead body of the deceased was identified by PW9 Jasbir Singh as that of his brother Kuldeep Singh.
( f ) PW1 Dr. Nawal Kishore performed the post mortem examination on 14.4.2002 on the dead body of an unknown person who was later on identified by PW9 Jasbir Singh as that of his brother Kuldeep Singh. PW1 found the following injuries:
i) Crush injury on the left side and front of face.
Clotted blood was present and brain matter was protruding Criminal Appeal No.92-DB of 2002 4 out. On dissection fracture of maxilla on left side, nasal bone, frontal bone, left and right parietal bone were detected.
ii) Abrasion on the left shoulder.
iii) Blood froth in the mouth and hostrils.
All the injuries were found to be ante mortem and were sufficient to cause death in the normal course of nature. He opined that the deceased would have died about 24 hours prior to post mortem examination due to the crush injuries that could have been caused by a heavy stone. The post mortem report prepared by PW1 was marked as Ex.P.C. ( g ) PW16 SI Dharampal recorded the statement Ex.P1 of PW9 Jasbir Singh on 20.4.2002. He made endorsement Ex.PD/1 and sent special reports about the conversion of the case into one under Section 302 of the Indian Penal Code in the light of the statement given by PW9 Jasbir Singh. He recorded the statements of the witnesses. On 24.4.2002 PW11 Jaswinder Singh and PW13 Hawa Singh brought the accused Ajit Singh to the Police Station. Ajit Singh was arrested. The car was recovered vide memo Ex.PO/1. The statements of PW11 Jaswinder Singh and PW13 Hawa Singh also were recorded by PW16.
( h ) On interrogation the accused suffered a disclosure statement Ex.PJ/1 in the presence of PW9 Jasbir Singh and Raj Kumar. On the basis of the disclosure statement a stone was recovered from the concealed place identified by the accused. After completion of the investigation, final report was filed under Section Criminal Appeal No.92-DB of 2002 5 173 Cr.P.C. by Inspector Ramesh Pal.
Statement under Section 313 Cr.P.C.
(i ) The accused was confronted with the incriminating portion found in the testimony of the witnesses examined on the side of the prosecution. The accused having denied his role has submitted that he was detained by the Police on suspicion on 15.4.2002 itself when he attended the rasam pagri of the deceased. He had been falsely implicated in this case as he was not in a position to pay any bribe demanded by the police officials for clearing him of the charges. He had never visited Delhi on 13.4.2002. He had no idea as to how Kuldeep Singh had died. He was in Mohali at the time when he received the information from his brother-in-law Bupinder Singh over phone that Kuldeep Singh had died. Submission on the side of the accused-appellant
3. Mr. S.S.Behl, learned Counsel appearing for the appellant would submit that the motive part of the prosecution was not established. Had the accused got illicit relationship with the wife of the deceased, the deceased would not have waited for the arrival of the accused for the purpose of giving company to him for 3 or 4 days. The accused being the permanent resident of USA would have left for USA immediately after the occurrence. He would not have been loitering around till 244.4.2002, the day on which the arrest was shown by PW16. Recovery of the material object namely blood stained stone was not established. The human blood found on the stone was not connected to the accused. The chain of circumstances projected by the prosecution was not established Criminal Appeal No.92-DB of 2002 6 beyond reasonable doubt.
Submission by the State Counsel
4. Mr. S. S. Randhawa, learned Additional Advocate General,Haryana would submit that the last seen theory was established through PW2 Suresh and PW15 Mukesh Mehta. The recovery of the material objects also has been established. There was no suggestion put to the doctor who conducted post mortem examination that the deceased would have died due to an accident. Therefore, it is his submission that the trial Court has rightly recorded the verdict of conviction as against the accused. Discussion
5. As rightly pointed out by the learned Counsel appearing for the appellant none of the circumstances attempted to be projected by the prosecution was established before the trial Court but quite unfortunately the trial Court having made an observation that the prosecution has established that there was a motive for the accused to murder the deceased Kuldeep Singh and that the last seen theory spoken to by PW2 Suresh and PW15 Mukesh Mehta was adequate enough to nail the accused to the charge under Section 302 IPC, returned the verdict of conviction as against the accused.
6. PW2 Suresh, PW15 Mukesh Mehta and PW12 Pritpal Singh have been examined in order to establish the last seen theory projected by the prosecution. PW12 Pritpal Singh has completely turned hospital to the case of the prosecution. Even the recovery of the material objects in his presence was not spoken to by him. Criminal Appeal No.92-DB of 2002 7 Therefore, the evidence of PW12 Pritpal Singh does not advance the case of the prosecution.
7. Let us now take up the evidence of PW2 Suresh. He has in fact dealt a lethal blow to the case of the prosecution during the course of cross-examination. It is to be noted that PW2 was not cross-examined by the prosecution with the permission of the Court inspite of the fact that he has come out with a damaging version to the case of the prosecution. During the course of chief examination he had come out with the version that Kuldeep Singh who was sitting in a car called PW2. PW2 shared liquor with him. The accused Ajit Singh who accompanied the deceased Kuldeep Singh was introduced to PW2 by Kuldeep Singh. At about 9.30 pm having spent about 25 minutes with PW2, the accused and the deceased had left Dundahera Border. The above version found in the chief examination was completely given a go-by by PW2. During the course of cross-examination he had deposed that it was correct that he had no idea about the subject occurrence. The police in fact advised him to depose as directed by them. He had made a statement during the course of chief examination only as per the dictates of the police. Quite unfortunately such a deadly conflicting version which goes to the very foundation of the case laid by the prosecution was not challenged by the prosecution. Therefore, the chief examination as well as cross-examination of PW2 will have to be conjointly perused by the Court. At any rate one thing is clear that PW2 was tutored to vomit before the Court the fabricated version of the prosecution.
Criminal Appeal No.92-DB of 2002 8
8. There was no evidence to show that PW2 Suresh was already known to Kuldeep Singh. When PW2 was stranger to Kuldeep Singh there was no reason for Kuldeep Singh to call PW2 to share liquor with him more especially when he had already had the company of his co-brother as per the version of PW2. Very strangely PW2 would state that by chance he had an occasion to meet not only the deceased Kuldeep Singh but also the accused Ajit Singh. He was in fact examined by the investigating official only on 21.4.2002 about eight days after he allegedly spotted the accused along with the deceased. The post mortem report did not support the evidence of PW2. The post mortem report does not disclose that alcoholic substance was found in the viscera collected from the dead body of Kuldeep Singh. In fact no step was taken by the Investigating Officer to test the blood sample or the viscera harvested from the dead body. Under the above facts and circumstances we find that the evidence of PW2 does not pass the test of credibility. We have no hesitation to reject the evidence of PW2 as totally fabricated for the purpose of this case.
9. Let us now take up the evidence of PW15 Mukesh Mehta which has largely persuaded the trial court to come out with a verdict of conviction as against the accused. PW15 Mukesh Mehta would depose that he was familiar to the deceased Kuldeep Singh as he was a neighbour. It appears that he was running a hair cutting saloon. It is his version that the deceased Kuldeep Singh arrived at his shop and used his mobile to ring up his co-brother Ajit Singh and as per the instructions given by the accused Ajit Singh, the deceased Criminal Appeal No.92-DB of 2002 9 Kuldeep Singh waited outside the shop of PW15 Mukesh Mehta and left along with the accused Ajit Singh. The deceased had an idea to company the accused for about 3 or 4 days.
10. Ajit Singh was not known to PW15 Mukesh Mehta. It is surprising that he had also identified accused Ajit Singh who was stranger by then, even when he was travelling in the car boarding his co-brother Kuldeep Singh. It is his specific case that his mobile set was borrowed by the deceased Kuldeep Singh to contact his brother- in-law Ajit Singh. The accused Ajit Singh was also later on arrested by PW16 SI Dharampal but quite unfortunately the mobile phone of PW15 which was allegedly used by the deceased to contact the mobile phone possessed by the accused was not seized to verify whether there was any such call emanated from the mobile phone of PW15 to contact the accused Ajit Singh.The mobile phone used by Ajit Singh was also not recovered to correlate the receipt of the call from the mobile set of PW15. He allegedly spotted the deceased and the accused at about 3.30 pm on 13.4.2002 but he was examined only on 21.4.2002 by PW16 SI Dharampal. If at all he had suspected the role of the accused in the murder of Kuldeep Singh who was his neighbour he would have without any loss of time informed the police about the last scene theory projected by him. In our considered opinion PW15 Mukesh Mehta was also a witness stage managed for the purpose of this case. It is totally unsafe to rely upon his statement to sustain an unbelievable last scene theory projected by the prosecution. We are of the opinion that the last scene theory put forward by the prosecution was not at all Criminal Appeal No.92-DB of 2002 10 established.
11. Let us now come to the extra judicial confession put forward by the prosecution through PW11 Jaswinder Singh, and PW13 Hawa Singh. PW11 and PW13 have categorically stated that no extra judicial confession was suffered by the accused before them and they had not taken the accused to the police station in connection with this case. No legal evidence is available on record to establish that the accused suffered an extra judicial confession to PW11 and PW13. On this score also the prosecution miserably failed to convince the Court that the accused reposed faith in PW11 and PW13 and unfolded his heart and admitted his guilt of murder of Kuldeep Singh.
12. PW14 Raj Kumar was cited and examined before the court as a witness to the disclosure statement Ex.PJ/1 given by the accused on interrogation and the recovery of the blood stained stone vide memo Ex.PJ but unfortunately PW14 Raj Kumar completely turned hospital to the above version of the prosecution. As the independent witness to the recovery of the blood stained stone had not supported the case of the prosecution, it is totally unsafe to rely upon the evidence of the police officials who allegedly witnessed the disclosure statement given by the accused and the recovery of the blood stained stone.
13. Even assuming for the sake of the argument that the blood stained stone was recovered at the instance of the accused, the human blood stains found in the stone as per Central Forensic Science Laboratory report was not connected to the blood group of Criminal Appeal No.92-DB of 2002 11 the deceased. Quite unfortunately PW1 Dr. Nawal Kishore who conducted post mortem examination has come out with an opinion that the crush injury which ultimately caused the death of the deceased Kuldeep Singh could have been caused by a heavy stone. On a thorough perusal of the portion of the cross-examination of PW1 we found to our surprise that the learned Counsel for the accused had only attempted to test during the cross examination whether the doctor could speak from his memory the aspects noted by him during the course of post mortem examination. Firstly such an exercise undertaken by the Counsel for the accused during the course of the cross-examination of the doctor who performed autopsy should not have been permitted by the trial Court. A doctor conducts many post mortem examinations in his career. He is entitled to refresh his memory by going through the post mortem report he prepared while deposing before the Court. The doctor cannot be asked to speak from his memory without referring to the post mortem certificate which was marked before the Court. The defence Counsel who had side tracked cross-examination of PW1, has not put the vital question to the doctor as to whether such crushing injury found on the head of the deceased would have been caused by a motor accident. The trial Court had also not woken up to put Court question to clear the cloud surrounding the opinion expressed by the post mortem doctor that the crush injury could have been caused by a heavy stone. At any rate the evidence given by the post mortem doctor can at best be classified as " opinion evidence". It is common knowledge that such crush injury found on Criminal Appeal No.92-DB of 2002 12 the head of the dead body could have been caused by motor accident also.
14. We find that there is ample force in the submission made by the learned Counsel appearing for the appellant that the deceased would not have accompanied the accused when he had doubted the trustworthiness of the accused in the matter of his relationship with the wife of the deceased. The accused also would not have stayed back even a single day after the occurrence had taken place as it is evident that he is a permeant resident of USA. He would not have waited till 24.4.2002 to self complicate himself in the murder of his co-brother. Unfortunately there was no investigation conducted by PW16 or PW17 as to whether the deceased would have died due to a motor accident.
15. Very surprisingly PW16 Dharampal chose to record the statement Ex.P1 of PW9 Jasbir Singh and obtained his signature in the said statement and made an endorsement Ex.P1/1 thereon and sent a special report to the Judicial Magistrate converting the case into one under Section 302 IPC. When a case has already been registered based on the information received relating thereto and investigation has begun, any statement given by a witness during the course of investigation would fall only under Section 161 Cr.P.C. Such a statement shall not bear the signature of the author thereof. Further such a statement cannot be exhibited and relied upon by the Court of law as per Section 162 Cr.P.C.
Conclusion:
16. In view of the above facts and circumstances we find that Criminal Appeal No.92-DB of 2002 13 the trial Court completely misdirected itself and arrived at a wrong conclusion in the absence of any legal evidence to establish the case of the prosecution that it was only the accused who committed the murder of Kuldeep Singh. We have no hesitation to set aide the judgment of conviction recorded by the trial Court.
17. In view of the above circumstances, the appeal is allowed. The judgment of conviction and order of sentence recorded by the trial Court against the accused-appellant are set aside and he is acquitted of the charge. As the accused is on bail his bail bond shall stand discharged.
18. The passport seized from the appellant and has form part of the record shall be returned forthwith by the Registry of this Court to the appellant on proper identification.
Prosecution for perjury
19. Before parting with the case the following important aspects will have to be necessarily dealt with by us, in the interest of justice:
(a) It is brought to the notice of this Court by the learned Counsel for the appellant that the appellant who is the resident of USA and a Non-resident Indian was falsely implicated in the criminal case. As his passport was impounded he could not move out of India and had to virtually eke out his livelihood by doing petty jobs. His wife is mortally ill but he could not attend his ailing wife in the United States of America. He could not meet his children as well.
(b) PW2 Suresh who has been examined by the prosecution to establish the second limb of "last scene theory" has Criminal Appeal No.92-DB of 2002 14 deposed before the Court that he had no idea about the subject occurrence. The Police in fact advised him to depose, as directed by them. He had made a statement during the course of chief examination only as per the dictates of the Police. PW11 Jaswinder Singh and PW13 Hawa Singh have categorically stated before the trial Court that no extra judicial confession was suffered by the accused before them and that there was no occasion to parade the accused in connection with the present case of murder. PW12 Pritpal Singh who was examined to establish the " last scene theory"
has completely turned hostile to the case of the prosecution. He has not spoken anything about the recovery of material objects in his presence. PW15 Mukesh Mehta who was examined to establish the first limb of the "last scene theory" has been implanted and stage managed for the purpose of this case.
( c) In view of the above, we record our prima facie conclusion as to the fabrication of false evidence by PW16 SI Dharampal of CIA Staff Narnaul as follows:
(i) A case of accident originally registered by PW17 ASI Subhash Chander Incharge of Police Post Badshahpur was intentionally converted by PW16 SI Dharampal as a case of murder, implicating the appellant herein in order to fleece money from the accused who is a resident of USA and a Non-resident Indian;
(ii) PW16 SI Dharampal falsely fabricated the evidence by implanting and introducing PW2 Suresh, PW11 Jaswinder Singh, PW12 Pritpal Singh, PW13 Hawa Singh and PW15 Mukesh Mehta to implicate the appellant with a view to secure his punishment in a Criminal Appeal No.92-DB of 2002 15 capital offence;
(iii) PW2 was tutored to depose before the Court as per dictates of PW16 SI Dharampal;
(iv) Blood stained stone was purposely introduced by PW16 SI Dharampal with a view to book a false case of murder as against the appellant.
20. The entire family of the appellant was completely shattered on account of the false criminal case launched as against the appellant by PW16 SI Dharamapal. The appellant could not join his affectionate children and his ailing wife in United States of America. He has lost his personality as well as family reputation and his job in USA.
21. It is a classic case where a citizen of USA and a Non- resident Indian has been shabbily treated, keeping an eye on the money he would have brought from the USA as a Non-resident Indian. If such a treatment is meted out to innocent non-resident Indian by the uniformed force, no non-resident Indian would think of a pleasant tour to his mother India. In our considered opinion such a false implication as against a non-resident Indian would give a wrong message to the persons living permanently in foreign shores. It is high time such a trend is nipped in the bud itself before ever it is snow-ball into a mammoth issue.
22. We find that there is intrinsic evidence and ample material as well to prosecute PW16 Dharampal for giving and fabricating of false evidence with an intention to procure conviction of capital offence of the appellant herein, punishable under Section 194 of the Criminal Appeal No.92-DB of 2002 16 Code of Criminal Procedure ( hereinafter referred to as the "Code" ).
23. We are aware that we can as well try PW16 SI Dharampal summarily and sentence him as per Section 344 of the Code. For two reasons we have proposed not to resort to the proceedings under Section 344 of the Code to try PW16 Dharmapal summarily for giving and fabricating false evidence as against the appellant herein. Firstly we find that the maximum sentence contemplated under Section 344 of the Code is only a maximum period of three months imprisonment. Of course the Court also may impose fine upto a sum of Rs.500/-; secondly, the criminal prosecution against PW16 SI Dharmapal will have serious consequences. Therefore, we find that full-fledged trial as against PW16 instead of a summary trial would meet the ends of justice. Therefore, we have proposed to resort to the proceedings under Section 340 read with Section 195 of the Code. Under Section 195 of the Code, the learned Judicial Magistrate shall take cognizance of the offence under Section 194 of the Code when a complaint in writing is given by the Court or by the officer authorized by the Court. As per Chapter 3 Part C Rule 2 of Rules and Order of Punjab and Haryana High Court ( Practice and Procedure ), Volume 5, the Registrar has been delegated to sign the complaints under Clauses
(a) of Sub-Section (3) of Section 340 Code.
24. In view of the above, we direct the Registrar (General) of this Court to lodge a complaint as against PW16 SI Dharampal in this case for the offence punishable under Section 194 of the Code following the procedure under Section 340 read with Section 195 of Criminal Appeal No.92-DB of 2002 17 the Code.
25. The Director General of Police, Haryana, Chandigarh is directed to simultaneously initiate disciplinary proceedings as against PW16 SI Dharmapal. A false case has virtually pushed the appellant to penury. He has faced an ordeal and untold hardship on account of the false implication in a murder case. The State is bound to apply some balm on the wound the appellant has received on account of irresponsible act of the personnel in the Police force. Therefore, the State is directed to bear the entire travel expenditure of the appellant from India to USA by air, apart from rendering assistance to get clearance from the Government of India for his travelling back to the USA.
( M. Jeyapaul )
Judge
February 15,2011
sks ( Satish Kumar Mittal )
` Judge
1. To be referred to the Reporter or not ? Yes