Punjab-Haryana High Court
Sunil Kumar @ Kallu And Others vs State Of Haryana on 11 November, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. S-1902-SB of 2002
Date of Decision : November 15, 2010
Sunil Kumar @ Kallu and others
....Appellants
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Baldev Singh, Senior Advocate with
Mr. Sudhir Sharma, Advocate
Mr. Manish Deswal, Deputy Advocate General, Haryana
T.P.S. MANN, J.
By a single judgment, the Court intends to dispose of the present appeal, i.e. Criminal Appeal No. S-1902-SB of 2002 filed by Sunil Kumar @ Kallu and four others and Criminal Appeal No. S-51-SB of 2003 filed by Pardeep Dhaka and three others, as both of them have arisen out of the same judgment and order dated 9.11.2002.
The two sets of appellants, alongwith their co-accused, Krishan, were tried for the offences under Sections 148, 332, 353, 333, 452 and 506 read with section 149 IPC. Vide judgment and order dated 9.11.2002 passed by learned Additional Sessions Judge, Rohtak, Crl. Appeal No. S-1902-SB of 2002 -2- Krishan, co-accused of the appellants, was acquitted of the charges against him whereas each of the appellants was convicted and sentenced as follows:-
Offences under Sections Sentence Section 333 IPC read with Eight years rigorous imprisonment Section 149 IPC. and fine of Rs.8,000/-, in case of default of payment of fine, to undergo further rigorous imprisonment for two years each;
Section 332 IPC read with Two years rigorous imprisonment Section 149 IPC. and fine of Rs.2,000/-, in case of default of payment of fine, to undergo further rigorous imprisonment for six months each;
Section 353 IPC read with One year rigorous imprisonment Section 149 IPC. and fine of Rs.1,000/-, in case of default of payment of fine, to undergo further rigorous imprisonment for three months each;
Section 452 IPC read with Two years rigorous imprisonment Section 149 IPC. and fine of Rs.2,000/-, in case of default of payment of fine, to undergo further rigorous imprisonment for six months each;
Section 323 IPC read with Six months rigorous imprisonment Section 149 IPC. and fine of Rs.500/-, in case of default of payment of fine, to undergo further rigorous imprisonment for one month each;
Section 506 IPC read with Six months rigorous imprisonment section 149 IPC. and fine of Rs.500/-, in case of default of payment of fine, to undergo further rigorous imprisonment for one month each;
Section 148 IPC read with Two years rigorous imprisonment Section 149 IPC. and fine of Rs.2,000/-, in case of default of payment of fine, to undergo further rigorous imprisonment for six months each;
Crl. Appeal No. S-1902-SB of 2002 -3-All the sentences were ordered to run concurrently. According to the prosecution, selling of liquor in the area was banned from 3.9.1999 to 5.9.1999 due to Lok Sabha elections. However, on 5.9.1999, one Balbir Singh of village Madina, was found selling liquor by ASI Kamlesh Kumar. Accordingly, a case under Sections 61(i)(a) of the Excise Act and rule 37(10) of the Haryana Liquor Licence Rules, 1970 was registered against him at Police Station Meham vide FIR No. 201. At that time, complainant Jai Parkash was the SHO of said Police Station. On the next day, i.e. on 6.9.1999 at about 9.00 a.m., appellant Sunil alias Kallu, who was Chairman of Block Samiti, came to the SHO and got released Balbir Singh on bail on furnishing requisite bail bonds. While leaving the Police Station, Sunil @ Kallu appellant was murmuring and threatened the SHO that he had not done good by registering a case against the contractor and on getting opportunity, he would take revenge.
Further case of the prosecution was that on the same day at about 9.30 p.m., when complainant-SHO Jai Parkash was present at his Government quarter, which was inside the Police Station premises, all the accused alongwith 20-25 other persons came there in cars and scooters. Accused Sunil @ Kallu, Rajender, Dharamraj, Pardeep Dhaka and Rajesh entered the quarter. Sunil Kumar @ Kallu abused the complainant and said that on that day, he would kill the complainant for registering the case against Madina liquor contractor. He caught hold of Crl. Appeal No. S-1902-SB of 2002 -4- the complainant by his collar. Accused Dharamraj picked up a chair and attempted to give a blow, which was warded off by the complainant by raising his arm and it hit his left elbow. The other accused gave him fist and slap blows. Ramwati wife of the complainant was also man- handled by them. The alarm raised by the complainant attracted ASI Mohinder Singh, HC Raj Kumar, Constable Preet Singh and other police officials to the spot. When they tried to rescue the complainant and his wife, they were also given injuries by the accused persons. The persons standing outside the quarter started pelting stones and breaking windowpanes of the nearby quarters. When the police started apprehending them, they went away by giving threat that on that day, he was saved but on some other occasion, he would be killed. The police was, however, able to apprehend accused Om Narain, Jagjit, Jai Bhagwan and Rajender at the spot and in that process, they also received some minor injuries on their persons. Thereafter, the complainant recorded FIR Ex. PF for the offences under Sections 307, 452, 332, 353, 506 and 148 read with Section 149 IPC.
During the course of investigation, the complainant got himself as well as his wife medico-legally examined and also sent injured ASI Mohinder Singh, HC Raj Kumar and Constable Preet Singh for their medico-legal examination. The accused, who were apprehended at the spot, were also sent for their medico-legal examination. After obtaining the copies of the medico-legal reports of Crl. Appeal No. S-1902-SB of 2002 -5- all the injured, offence under Section 333 IPC was added to the heading of the FIR, as one of the injury found on the person of Constable Preet Singh was declared grievous in nature.
Upon completion of investigation, the police submitted the final report under Section 173 Cr.P.C. against six accused persons, i.e. Sunil @ Kallu, Jagjit, Rajender, Om Narain, Krishan and Jai Bhagwan and other four accused, i.e. Rajesh, Dharamraj, Pardeep Dhaka and Anil Dua were found innocent. The case was committed to the Court of Sessions, where charges under Sections 148, 452, 332, 333, 353, 323, 506 read with Section 149 IPC were framed against the six accused, who were sent up for trial. The accused pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 HC Bhalle Ram, PW2 Constable Samit Kumar and PW3 complainant SHO Jai Parkash. Thereafter, the prosecution filed an application under Section 319 Cr.P.C., which was allowed and the remaining four accused were also summoned to face trial alongwith other persons. The accused, who were summoned to face trial under Section 319 Cr.P.C alongwith other accused were charged for the aforesaid offences, to which they did not plead guilty and claimed trial.
To prove its case, the prosecution examined PW1 Dr.Rohtas Tanwar, PW2 ASI Raj Singh, PW3 Ram Dhan, PW4 Crl. Appeal No. S-1902-SB of 2002 -6- Constable Samit Kumar, PW5 HC Siri Kishan, PW6 Inspector Inder Singh, PW7 complainant Inspector Jai Parkash, PW8 Dr. Munish Soni, PW9 ASI Mohinder Singh, PW10 Constable Preet Singh, PW11 HC Nihal Singh, PW12 DSP Paramjit Singh and PW13 Dr. Pankaj Khurana. PWs Ramwati, Kamlesh Kumar, Ram Dhan, HC Sube Singh, HC Raj Kumar and HC Ram Chander were given up as unnecessary.
When examined under Section 313 Cr.P.C., all the accused denied the circumstances appearing against them in the prosecution evidence and pleaded innocence. Accused Om Narain pleaded that he was brought from bus stand Meham, while he was sitting in a jeep owned by Madan Gopal son of Tulsi Ram and had been falsely implicated in this case. Accused Rajesh, Dharamraj, Pardeep Dhaka and Anil Dua pleaded that at the time of incident, they were present at the house of Sh.Raj Singh, Advocate. There they learnt that some ladies of village Madina were illegally detained in the Police Station. As there was tension in the town, so, they had gone to the Police Station to ask about the matter, where they were falsely implicated in this case at the instance of the then Minister. All other accused persons pleaded that they had been falsely implicated due to political rivalry at the instance of the then Minister.
In defence, the accused examined DW1 HC Nihal Singh. After hearing learned counsel for the parties and going Crl. Appeal No. S-1902-SB of 2002 -7- through the evidence available on the record, the trial Court believed the prosecution version against the appellants and, accordingly, convicted and sentenced them, whereas their co-accused Krishan was acquitted, as mentioned above.
I have heard learned counsel for the parties and with their able assistance, scanned the evidence.
Mr. Baldev Singh, Senior Advocate assisted by Mr. Sudhir Sharma, Advocate representing Sunil Kumar @ Kallu, Jagjit, Rajender, Om Narain and Jai Bhagwan appellants and Mr. Bipan Ghai, Senior Advocate assisted by Mr. Sandeep Gahlawat, Advocate representing Pardeep Dhaka, Rajesh, Dharamraj and Anil Dua appellants have submitted that as the occurrence in question had taken place at the house of PW7 Jai Parkash and not in the Police Station, the offences under Sections 333, 332 and 353 IPC were not made out. At the most, the appellants can be hauled up for committing the offences under Sections 325 and 323 IPC in relation to causing of injuries to PW7 Jai Parkash, PW9 ASI Mohinder Singh, PW10 Constable Preet Singh, HC Raj Kumar and Ramwati, wife of complainant Jai Parkash.
According to the prosecution, complainant Jai Parkash was posted as Station House Officer of Police Station Meham on 5.9.1999. On that day ASI Kamlesh Kumar had found one Balbir Singh of village Madina selling liquor despite the fact that the sale of liquor was banned Crl. Appeal No. S-1902-SB of 2002 -8- due to elections. Accordingly, a criminal case was registered against said Balbir Singh. On 6.9.1999 at about 9.00 a.m., Sunil Kumar @ Kallu, who was Chairman of the Block Samiti appeared before complainant Jai Parkash and got Balbir Singh released after furnishing necessary bail bonds. While taking Balbir Singh alongwith him from the Police Station, Sunil Kumar @ Kallu appellant was murmuring. He also extended a threat to the complainant that he had not done a good thing by registering a case against the liquor contractor and on getting an opportunity, he would take revenge. Same day at about 9.30 p.m., complainant Jai Parkash was present at his residence which was a Government quarter situated inside the Police Station premises. At that point of time, all the accused alongwith 20/25 persons came there. Five of them, namely, Sunil Kumar @ Kallu, Rajender, Dharamraj, Pardeep Dhaka and Rajesh entered his residence. The complainant was abused and caused injuries. Even his wife Ramwati was assaulted. The alarm raised by the complainant attracted ASI Mohinder Singh, HC Raj Kumar, Constable Preet Singh besides other officials to the spot. An attempt was made by them to rescue the complainant and his wife but they were also given injuries by the accused. The accused and other persons, who were standing outside the quarter started pelting stones and broke the windowpanes of the nearby quarters. The police officials started apprehending the accused and were successful in apprehending Om Narain, Jagjit, Jai Bhagwan and Rajender at the spot. The other accused managed to escape. While doing so, the accused, once again, Crl. Appeal No. S-1902-SB of 2002 -9- extended a threat that on that day the complainant got saved but on some later occasion he would be killed.
The prosecution case in regard to the occurrence stands established from the testimonies of PW7 Jai Parkash Inspector/SHO and PW10 Constable Preet Singh. Though PW9 ASI Mohinder Singh also supported the prosecution version regarding the assault on complainant Jai Parkash and his wife Ramwati by the accused after entering into his residential quarter besides being himself assaulted by the accused as well as HC Raj Kumar and Constable Preet Singh suffering injuries while rescuing Jai Parkash and his wife yet he did not support the prosecution version about seeing Pardeep Dhaka, Dharamraj, Rajesh and Anil Dua at the spot. However, that by itself would not be sufficient to reject the prosecution case in its entirety as the said witness corroborated to a great extent the testimonies of PW7 Jai Parkash and PW10 Constable Preet Singh. Once it is shown that the appellants after forming unlawful assembly had trespassed in the quarter of complainant Jai Parkash in order to deter him and the police from discharging the official duties and in the process causing simple hurt to complainant Jai Parkash, ASI Mohinder Singh, Constable Preet Singh, Ramwati besides causing a grievous injury to Constable Preet Singh, they committed the offences under Sections 333, 332 and 353 IPC. There is no requirement of law that the public servant should be prevented or deterred from discharging his official duties only at his work place and not at his Crl. Appeal No. S-1902-SB of 2002 -10- residence. PW7 Jai Parkash, who was posted as Station House Officer at Police Station Meham used to live in a Government quarter, which was not far away from the premises of the Police Station. As per site- plan Ex. P1 proved by PW4 Constable Samit Kumar, the distance between the house of PW7 Jai Parkash and the gate of the Police Station was a little more than 54 metres. Moreover, the accused had also broken the windowpanes of the Police Station itself. Therefore, the appellants had been rightly convicted for causing hurt/grievous hurt, committing assault and using criminal force to deter the public servants from discharging their official duties.
Learned counsel for the appellants also submitted that it was highly improbable that most of the accused could escape from the spot as it had come in the evidence that 14/15 police officials were present at the spot.
Perusal of site-plan Ex. P1 makes it clear that there was no boundary wall around the Police Station and its adjoining government houses. Moreover, it was all a vacant space between the Police Station and the Government quarter of PW7 Jai Parkash. The ten accused alongwith 20/25 other persons had practically attacked the Police Station and the house of PW7 Jai Parkash. At that time less than a score of police officials were present there. Due to their numerical strength, most of the accused and their companions managed to escape from the spot after causing injuries to Jai Parkash and others. Only four persons, Crl. Appeal No. S-1902-SB of 2002 -11- namely, Om Narain, Jagjit, Jai Bhagwan and Rajender could be apprehended. Under these circumstances, the prosecution version cannot be held to be improbable.
It has further been submitted that the prosecution had not explained the injuries found on the persons of Jagjit and Rajender accused. The non-explanation of their injuries renders the prosecution case doubtful.
It had appeared in the testimony of the prosecution witnesses that the police was able to apprehend Jagjit and Rajender accused alongwith Om Narain and Jai Bhagwan at the spot and in that process both Jagjit and Rajender also received minor injuries on their persons. In the FIR Ex. PF, it was specifically stated that while apprehending the accused, force was used as a result of which they had received injuries. Under these circumstances, the prosecution case cannot be termed as doubtful.
Learned Senior counsel representing Pardeep Dhaka and three other appellants also submitted that his clients were found innocent during investigation of the case. No challan was submitted against them. It was only at a later stage that an application under Section 319 Cr.P.C. was moved pursuant to which they were summoned as additional accused in the case. Therefore, his clients deserve the benefit of doubt.
Crl. Appeal No. S-1902-SB of 2002 -12-
It is true that during investigation of the case, Pardeep Dhaka, Rajesh, Dharamraj and Anil Dua were found innocent. Challan was presented only against Sunil Kumar @ Kallu and four others. After the framing of charges against Sunil Kumar @ Kallu and others, the prosecution examined three of its witnesses including complainant Jai Parkash. When complainant Jai Parkash reiterated his version against Pardeep Dhaka and others regarding their involvement in the crime, an application under Section 319 Cr.P.C. was moved by the prosecution, which was allowed and Pardeep Dhaka and three others were summoned as additional accused at the trial. Thereafter, PW7 Jai Parkash and PW10 Constable Preet Singh specifically deposed about the part played by Pardeep Dhaka and others. Their testimonies have been believed by the trial Court to come to a conclusion that they had also joined hands with Sunil Kumar @ Kallu and others in causing hurt/grievous hurt, committing assault and using criminal force upon public servants in order to deter them from discharging their official duties. Once there is legal evidence available on the file, no sanctity can be attached to the conclusion of the Investigating Officer, who had declared them innocent and presenting the challan only against Sunil Kumar @ Kallu and four others.
Learned counsel for both the set of the appellants finally submitted that the alleged occurrence had taken place more than 11 years back. Only Constable Preet Singh was said to have suffered one Crl. Appeal No. S-1902-SB of 2002 -13- grievous injury on his person, which was on his fore-arm. The rest of the injuries suffered by Constable Preet Singh as well as other injured witnesses besides Ramwati wife of Jai Parkash were declared simple in nature. All the appellants have already undergone substantial portion of the sentences imposed upon them. Therefore, their remaining sentences of imprisonment be set aside.
Learned State counsel has submitted that as the appellants had taken the law in their own hands by attacking the Station House Officer at his official quarter, which was situated inside the Police Station premises, none of the appellants deserves any concession in the matter of sentence of imprisonment.
After taking into consideration the totality of the circumstances, the Court is of the view that only the sentence of imprisonment imposed upon the appellants for the offence under Section 333 IPC read with Section 149 IPC is on the higher side and deserves to be reduced to imprisonment for four years.
Resultantly, the conviction of both the sets of the appellants for the various offences, as ordered by the trial Court, is affirmed. Their substantive sentence of rigorous imprisonment for eight years imposed for the offence under Section 333 IPC read with Section 149 IPC is reduced from eight years to four years each. The sentence of fine alongwith its default clause for the offence under Section 333 IPC read Crl. Appeal No. S-1902-SB of 2002 -14- with Section 149 IPC is maintained. The substantive sentences of imprisonment as well as the fine alongwith their default clauses imposed upon the appellants by the trial Court for the remaining offences are upheld. The substantive sentences of imprisonment shall run concurrently.
Criminal Appeal No. S-1902-SB of 2002 and Criminal Appeal No. S-51-SB of 2003, are, accordingly, disposed of.
( T.P.S. MANN )
November 15, 2010 JUDGE
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