Punjab-Haryana High Court
Cra-S-2937-Sb-2009 vs State Of U.T. Chandigarh on 7 March, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-2937-SB-2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. CRA-S-2937-SB-2009
Arun Kumar
...... Appellant
Versus
State of U.T. Chandigarh
..... Respondent
2. CRA-S-165-SB of 2010
Sewak Sharma
..... Appellant
Versus
State of U.T. Chandigarh
..... Respondent
3. CRA-S-1041-SB of 2010
Sanjiv Kumar
..... Appellant
Versus
State of U.T. Chandigarh
..... Respondent
Date of decision: 07.03.2011
CRA-S-2937-SB-2009 -2-
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. P.S. Hundal, Senior Advocate, with
Mr. Premjit Singh Hundal, Advocate,
for the appellant (in CRA-S-2937-SB of 2009).
Mr. Aman Arora, Advocate,
for the appellant (in CRA-S-165-SB of 2010).
Mr. Manjoj Kaushik, Advocate,
for the appellant (in CRA-S-1041-SB of 2010).
Ms. Ashima Mor, Advocate,
for Mr. Hemant Bassi, Advocate,
for U.T. Chandigarh.
JORA SINGH, J.
By this common judgment, I propose to dispose of three Criminal Appeals No. CRA-S-2937-SB of 2009, CRA-S-165-SB of 2010 and CRA-S-1041-SB of 2010, preferred by Arun Kumar, Sewak Sharma and Sanjiv Kumar, respectively, to challenge the judgment of conviction dated 20.11.2009 and order of sentence dated 21.11.2009, rendered by learned Additional Sessions Judge, Chandigarh, in Sessions Case No. 21 of 2003, arising out of FIR No. 186 dated 23.5.2003, registered under Section 397 and 398 of the Indian Penal Code at Police Station Sector-36, Chandigarh.
By the said judgment, they were convicted under Section 394 read with Section 398 IPC and sentenced to undergo rigorous imprisonment for a period of seven years each and to pay a fine of ` 5000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one year each.
Prosecution story, in brief, is that on 23.5.2003, at about 3.15 a.m. Garib Dass-complainant was going towards the park of Sector-36, Chandigarh, from his house. At about 3.30 a.m. he was near CRA-S-2937-SB-2009 -3- the bridge dividing road of Sector 23 and 36, Chandigarh, 10-12 young boys were sighted and they had enquired from the complainant about the passage leading to Sector-34, Chandigarh. Garib Dass- complainant told them the way leading to Sector-34. Out of 10-12 young boys, two boys were of 18-20 years of age, one was 8-10 years old and the remaining boys were of the age group of 17-18 years. Two boys who were of the age group of 18-20 years were armed with small swords and directed the complainant to hand over whatsoever money and other articles are in his possession. After that they gave sword blows to the complainant hitting on different parts of the body. Raula was raised then accused had fled away from the spot with their respective weapons. After the occurrence, Garib Dass-complainant had gone to his house from where his sons namely Harbhajan Singh and Hans Raj had shifted him to General Hospital, Sector-16, Chandigarh.
After admission of Garib Dass, in General Hospital Sector- 16, Chandigarh, intimation was given to the concerned police station and on receipt of information, SI Kewal Krishan, had gone to General Hospital, Sector-16, Chandigarh. Application was moved requesting the doctor to opine as to whether patient was fit to make statement or not? Injured was declared fit to make statement. Then statement of Garib Dass-complainant Ex. PA, was recorded. After making endorsement Ex. PA/1, statement was sent to the police station on the basis of which formal FIR Ex. PU, was recorded. On the same day Arun Kumar and Sanjiv Kumar, were arrested. Sanjiv Kumar suffered disclosure statement Ex. PE and in pursuance of the disclosure statement got recovered sword from the specified place. No recovery was effected from Arun Kumar or Sewak Sharma. Two accused were found to be CRA-S-2937-SB-2009 -4- juvenile and against them challan was presented before the Juvenile Justice Board to face trial as per law. Co-accused namely Dhiraj Kumar and Raj Kumar, were declared proclaimed offenders. Ultimately, after completion of investigation challan was presented in the Court.
Accused were charge-sheeted under Section 398 read with Section 34 of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Garib Dass-complainant, has reiterated his stand before the police.
PW-2 Has Raj, is the son of the complainant and stated that his father came to house in injured condition. Injured was got admitted in General Hospital, Sector-16, Chandigarh, where he was medico-legally examined.
PW-3 Dr. Rajwinder Singh, stated that on 23.5.2003, Garib Dass, was brought to hospital by SI Kewal Krishan. At 4.15 a.m. he had medico-legally examined Garib Dass and found following injuries on his person:
"1. Incised wound muscle deep 8 cm x 0.5 cm (at centre) tailing posteriorly over left rams of mandible extending up to lobule of left ear.
2. Superficial incised wound skin deep 5 cm x 0.5 cm tailing anteriorly reddish in colour over lateral aspect of left arm upper 1/3rd region.
3. Contusion 4 cm x 1.5 cm posterior lateral aspect of right arm reddish in colour. CRA-S-2937-SB-2009 -5-
4. Abrasion 1 cm x 1 cm over right memory area, reddish in colour."
PW-4 Constable Yash Pal, had prepared scaled site plan Ex. PQ.
PW-5 SI Rajbir Singh, stated that he was the incharge of Malkhana and on 23.5.2003, SI Kewal Krishan had deposited case property with him.
PW-6 SI Kewal Krishan, is the Investigating Officer. PW-7 Constable Sat Narain, tendered his affidavit Ex. PBB. After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Opportunity was given to lead defence evidence but no defence evidence was lead.
After hearing learned Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and carefully gone through the evidence available on the file.
Learned defence counsel for the appellants argued that according to prosecution story on 23.5.2003 at about 3.30 a.m. appellants fully armed had attempted to commit robbery but in the FIR appellants were not named. Only age of the assailants was given, description of the assailants was not given. According to the evidence, complainant was not in possession of any article at the time of commission of crime. Complainant after the occurrence had gone to his CRA-S-2937-SB-2009 -6- house and was shifted to the hospital by his sons and remained in the hospital up to 4.30/4.45 p.m. According to doctor, four injuries were noticed. Two injuries were with blunt weapon and two with sharp edged weapon. If the injuries were caused with a small kirpan then no question of injuries No.3 and 4 with blunt weapon. All the injuries were found to be simple in nature. Up to 4.30/4.45 p.m. injured remained in the hospital. Doctor stated that injured was brought to hospital by SI Kewal Krishan. SI Kewal Krishan, stated that on receipt of information from control room regarding admission of Garib Dass, he had gone to General Hospital, Sector-16, Chandigarh. Then doctor issued MLR. Statement of Garib Dass, Ex. PA was recorded. Supplementary statement of the complainant was also recorded but the same was not exhibited. Garib Dass while appearing as PW-1, did not state a word that his supplementary was recorded. He simply stated that he lodged complaint Ex. PA, which was read over and explained to him and after admitting the same to be correct one he had signed the same.
According to the evidence, on the same day i.e. 23.5.2003, appellants were arrested, in the presence of the complainant. Recovery was only from Sanjiv Kumar. According to the Investigating Officer, recovery was effected at 1.30 p.m. in the presence of the complainant whereas complainant stated that he was discharged from the hospital at about 4.30/4.45 p.m. If at about 1.30 p.m. complainant was in the hospital then no question of recovery of sword from Sanjiv Kumar at about 1.30 p.m. Except age, description of the assailants was not given by the Investigating Officer. Test identification parade was not arranged. When the Investigating Officer, was not aware about the description of the assailants then there was no idea to apprehend the CRA-S-2937-SB-2009 -7- appellants on the same day and effect recovery as per disclosure statement at 1.30 p.m. when the injured was discharged from the hospital at 4.30/4.45 p.m. Investigating Officer, while appearing as PW- 6 then stated that on the same day he received information regarding presence of Arun, Sunny, Sanjiv @ Andha, Sumit and Rajinder, in the forest of Daddu Majra. When the appellants were not named by the complainant then question is how the Investigating Officer, came to know about the presence of accused in the forest of Daddu Majra. Sword alleged to be recovered could easily be purchased from the market. There was no identification mark. Recovered weapon was not sealed. Investigating Officer, in cross-examination admitted that except the age, description of the accused was not given by the complainant. Separate FIR regarding theft of swords was registered. Learned defence counsel for the appellants argued that on the same day FIR No. 233 dated 23.5.2003, under Section 411 IPC, was registered at Police Station Sector-17, Chandigarh, against the present appellants but in that FIR they were acquitted of the charge levelled against them vide judgment dated 22.5.2009.
Argued that first of all appellants were not named in the FIR. Injured was discharged from the hospital at about 4.30/4.45 p.m. Without description of the accused, prosecution story is un-natural that Investigating Officer, came to know about the presence of the appellants in the forest of Daddu Majra. There is recovery of only sword from Sanjiv. No recovery from the other two appellants. Independent witnesses are available but no one was joined. Recovery was shown simply to implicate the appellants. When the appellants were not earlier known to the injured then in the absence of test identification parade, CRA-S-2937-SB-2009 -8- the statement of the complainant in the Court that the appellants facing trial had committed the crime is without any evidentiary value. Lastly argued that if the Court is the of the opinion that crime was committed by the appellants then lenient view be taken because Arun Kumar is juvenile. Sewak Sharma, remained in custody for about 1 year, 6 months and 9 days. Arun Kumar and Sanjiv Kumar, also remained in custody for substantial period. According to prosecution story, appellants had not committed theft, extortion or robbery. At the most appellants had attempted to commit robbery.
Learned State counsel argued that no doubt appellants were not named in the FIR but injured stated that he can identify the accused when brought before him. At the time of arrest, no request to arrange test identification parade. Injured while appeared as PW-1 then identified the appellants. Although recovery of sword is only from one of the appellants but appellants were armed and had caused injuries to the complainant when attempted to rob him. Offence punishable under Section 394 read with Section 398 IPC is very serious. No reason to take lenient view.
According to prosecution story, appellants fully armed at about 3.30 a.m. on 23.5.2003, had directed the complainant to hand over whatsoever he had in his possession i.e. cash or kind and while committing the offence had caused injuries to Garib Dass. Later on weapon of offence was recovered. Defence version of the appellants is that case is false. Now the question is whether appellants fully armed while committing the crime had caused injuries to Garib Dass or not?
Prosecution story, is to the effect that on 23.5.2003 at about 3.15 a.m. Garib Dass-complainant had gone for a morning walk in CRA-S-2937-SB-2009 -9- park of Sector-36, Chandigarh. At about 3.30 a.m. he was near the bridge dividing road of Sector 23 and 36, Chandigarh. 10-12 young boys were sighted and they had enquired from the complainant about the passage leading to Sector-34, Chandigarh. Garib Dass- complainant told them the way leading to Sector-34. Out of 10-12 young boys, two boys were of 18-20 years age, one was 8-10 years old and the remaining boys were of the age group of 17-18 years. Two boys who were of the age group of 18-20 years armed with small swords directed the complainant to hand over whatsoever money or other article with him at that time. Cash or kind was not with the complainant then those two boys who were of the age group of 18-20 years armed with small swords had given blows to Garib Dass. When raula was raised then appellants had fled away from the spot. Garib Dass came to his house then his sons Harbhajan Singh and Hans Raj, had shifted him to General Hospital, Sector-16, Chandigarh, where he was medico-legally examined. Intimation was sent to the concerned police station. SI Kewal Krishan, had gone to General Hospital, Sector- 16, Chandigarh and recorded the statement of Garib Dass. Ex. PA is the statement of Garib Dass dated 23.5.2003, recorded at 5.45 a.m. In the statement Ex. PA, appellants were not named. Description of the appellants was not given. In Ex. PA, only age of the appellants was given. According to Ex. PA, two boys who were of the age group of 18-20 years armed with small swords gave blows but statement of Garib Dass inspires no confidence because according to the complainant after the occurrence he had gone to his house from where he was shifted to General Hospital, Sector-16, Chandigarh, by his sons namely Harbhajan Singh and Hans Raj. Harbhajan Singh, was CRA-S-2937-SB-2009 -10- not examined. Hans Raj, appeared as PW-2 and stated that his father came back to his house and at that time he was in injured condition. Both the brothers had shifted their father to General Hospital, Sector-16, Chandigarh. Hans Raj is not the eye-witness that means Garib Dass was brought to General Hospital, Sector-16, Chandigarh by his sons. Garib Dass or Hans Raj have not stated a word that injured Garib Dass, was shifted to General Hospital, Sector-16, Chandigarh, by SI Krishan Kumar.
PW-3 Dr. Rajwinder Singh, had medico-legally examined Garib Dass. Four injuries were noticed on the person of Garib Dass. Doctor stated that Garib Dass, was brought to hospital by SI Kewal Krishan. Doctor did not state a word that sons of Garib Dass had brought him to General Hospital, Sector-16, Chandigarh.
PW-6 SI Kewal Krishan, stated that on receipt of information from control room regarding admission of Garib Dass in General Hospital, Sector-16, Chandigarh, then he had gone to hospital. Application Ex. PM was moved requesting the doctor to opine as to whether patient was fit to make statement or not. Then doctor issued the MLR of Garib Dass Ex. PN. After that he had recorded the statement of Garib Dass, Ex. PA, that means Garib Dass was not shifted to hospital Sector-16, Chandigarh, by SI Kewal Krishan. In fact on receipt of information from control room SI Kewal Krishan, had gone to General Hospital, Sector-16, Chandigarh. MLR of Garib Dass is on the file and according to the documentary proof i.e. MLR Garib Dass was brought to General Hospital, Sector-16, Chandigarh, by SI Kewal Krishan.
According to the statement of Garib Dass Ex. PA, CRA-S-2937-SB-2009 -11- appellants were not named. Only age of the assailants who had committed the crime was given but in Court Garib Dass stated that when he was going to park of Sector-36, Chandigarh, for morning walk then at about 3.30/3.45 a.m. 10-12 boys were sighted. He was stopped by the young boys. Boys standing on the back attacked him. Sanjiv armed with sword had caused injuries on his person. Sewak Sharma and Arun were also present at the spot. In Court Garib Dass- complainant has named three appellants namely, Sanjiv, Sewak Sharma and Arun but in cross-examination Garib Dass, admitted that some persons namely, Sanjiv, Rajinder, Sewak Sharma, Arun and Sunil were arrested on that day. As per disclosure statement suffered by Sanjiv, sword was recovered. He was discharged from General Hospital, Sector-16, Chandigarh at about 4.30/4.45 p.m. Appellants were arrested at his instance but arrest was not in his presence. He came to know about the names of the appellants when disclosed to the police in his presence. Garib Dass, stated that his statement Ex. PA, was recorded but did not state a word that his supplementary statement was also recorded whereas SI Kewal Krishan stated that supplementary statement of Garib Dass, was also recorded but supplementary statement of Garib Dass was not exhibited by the prosecution. According to the complainant recovery from Sanjiv was of a sword in his presence but this fact is not correct one because SI Kewal Krishan, Investigating Officer, stated that after recording the statement of Garib Dass, then he received secret information regarding presence of Sanjiv, Arun, Sunny, Rajinder and Sewak Sharma, in the forest of Daddu Majra. When injured did not disclose about the names of the appellants then question is how SI Kewal Krishan, received secret information CRA-S-2937-SB-2009 -12- regarding the presence of above said appellants in the forest of Daddu Majra. Garib Dass-complainant in cross-examination stated that appellants were arrested at his instance and he came to know about the names of the appellants when (appellants) disclosed their names before the police in his presence. That means before arrest of the appellants, injured had no information about the names of the appellants. Injured came to know about the names of the appellants when the appellants were produced. Police had no information as to who were the accused because complainant did not name any of the appellants in his statement Ex. PA. Occurrence was in the morning at about 3.30 a.m. And at 5.45 p.m. statement of Garib Dass was recorded. He was discharged from the hospital at about 4.30/4.45 p.m. Till discharge from the hospital no question of arrest of the appellants at the instance of complainant or disclosure of names by the appellants before the police. After discharge from hospital there was possibility of arrest of the appellants and disclosure of names before the police.
SI Kewal Krishan, stated that Arun Kumar, was arrested on 23.5.2003 in the presence of Garib Dass. Ex. PB is the arrest memo of Arun Kumar, signed by Garib Dass. Ex. PC is the memo regarding arrest of Sanjiv Kumar in the presence of Garib Dass. Investigating Officer, further stated that Sanjiv Kumar was interrogated and suffered a disclosure statement Ex. PE dated 23.5.2003. Disclosure statement was recorded in the presence of Garib Dass. There is cutting in the date on Ex. PE. Ex. PF is the recovery memo regarding sword. Recovery was also effected in the presence of Garib Dass-complainant but in cross-examination Investigating Officer, admitted that recovery from Sanjiv was at 1.30 p.m. on 23.5.2003. When Garib Dass, was in CRA-S-2937-SB-2009 -13- General Hospital, Sector-16, Chandigarh and was discharged at about 4.30/4.45 p.m. then very strange how Sanjiv was arrested in the presence of Garib Dass and made disclosure statement and ultimately got recovered sword from the specified place vide disclosure statement Ex. PE. SI Kewal Krishan (PW-6), admitted that complainant was joined at the time of recovery. Except age of the assailants, description of assailants was not given in the complaint. Weapon was not sealed. Weapon recovered like the present one is easily available in the market. Lastly, admitted that regarding theft of swords separate FIR was registered. No test identification parade was arranged. At the time of arguments learned defence counsel for the appellants produced the certified copy of the judgment dated 22.5.2009, in case FIR No. 233 dated 23.5.2003, registered under Section 411 IPC and the same is ordered to be taken on record. Certified copy of the judgment dated 22.5.2009, shows that FIR No. 233 dated 23.5.2003 was registered against the present appellants and one Dhiraj Kumar. Ultimately, appellants were acquitted of the charge levelled against them.
When the appellants were not named in the FIR and no explanation from the side of the prosecution, how Investigating Officer, received secret information regarding the presence of Arun, Sunny, Sanjiv @ Andha, Sumit and Rajinder, in the forest of Daddu Majra and after arrest had shown the recovery of swords in the presence of Garib Dass at about 1.30 p.m. when Garib Dass was discharged from the hospital at about 4.30/4.45 p.m. As per evidence, one sword was recovered from Sanjiv, one from Raju and 11 from Dhiraj, who is facing trial separately. When the appellants were not named in the FIR then learned State counsel is not in a position to explain at what time for the CRA-S-2937-SB-2009 -14- first time Investigating Officer, came to know about the involvement of the appellants in the present case. When the complainant did not name the appellants then no question of arrest of the appellants at the instance of the complainant and disclosure of names by the appellants before the police.
Four injuries were noticed on the person of Garib Dass. All the injuries were simple in nature. Injuries were caused with Kirpan but weapon used for two injuries were blunt. When clear cut allegation of the complainant that injuries were caused with sharp edged weapon then all the injuries noticed by the doctor should have been with sharp edged weapon. No question of two injuries with blunt weapon. Acquittal of the appellants in FIR No. 233 dated 23.5.2009, registered under Section 411 IPC, shows that prosecution story is not genuine one. If the Investigating Officer, received secret information regarding the presence of the appellants in the forest of Daddu Majra then request should have been made to arrange test identification parade because occurrence was at about 3.30 a.m. and earlier to the occurrence appellants were not known to the complainant.
On the intervening night of 22/23.5.2003, there was a theft from the shop of Bachan Singh. Regarding theft FIR No. 233 dated 23.5.2009, was registered at Police Station Sector-17, Chandigarh. Occurrence in the present case was at about 3.30 a.m. on 23.5.2003. Appellants were not named by Garib Dass. FIR No. 233 dated 23.5.2003, was also blind. No one was named, then to solve FIR No. 233 and 186 of the same date registered in Police Stations Sector 17 and 36, Chandigarh, appellants were implicated.
In view of all discussed above, I am of the opinion that CRA-S-2937-SB-2009 -15- evidence on file was not properly scrutinized by the trial Court. Impugned judgment suffers from infirmity or illegality and the same is ordered to be set aside. Appellants are acquitted of the charge levelled against them.
For the reasons recorded above, all the appeals i.e. CRA- S-2937 of 2009, CRA-S-165-SB of 2010 and CRA-S-1041-SB of 2010, are allowed.
Appellants are in custody. Release warrants be issued immediately.
March 07, 2011 ( JORA SINGH ) rishu JUDGE