Punjab-Haryana High Court
Mani Lal And Ors. vs State Of Punjab on 28 August, 2007
Equivalent citations: 2008CRILJ570
Author: Mahesh Grover
Bench: Mahesh Grover
JUDGMENT Mahesh Grover, J.
1. This is an appeal against judgment/order of sentence dated 27-2-1996 of the Additional Sessions Judge, Jalandhar (hereinafter described as 'the trial Court') vide which the appellants have been convicted and sentenced as under:
For offence punish- To undergo rigorous able under Section imprisonment for 458 of the I.P.C. seven years and to pay a fine of Rs. 1000/- each and in default of payment of fine, to further undergo rigo- rous Imprisonment for six months. For offence punish To undergo rigorous able under Section imprisonment for ten 460 of the I.P.C. years and to pay a fine of Rs. 1000/- each and in default of pay- ment of fine, to further undergo rigorous im- prisonment for six months.
2. Both the sentences were, however, ordered to run concurrently with a direction to set off the period already spent by the appellants in detention. On recovery of the amount of fine, a sum of Rs. 5000/- was also directed to be paid to Smt. Rekha widow of Ram Kirpal.
3. During the night of 2nd and 3rd of July, 1993, the appellants along with their accomplices are said to have come to T.D.K. Valves Factory, Basti Bawa Khel, Jalandhar where complainant Chander Parshad (PW5) and Ram Kirpal deceased were employed as watchmen and both of them used to stay within the premises. The complainant and Umesh Sharma, his brother in law, who was sleeping with him, on hearing some noise, got up and noticed that five persons, by entering from the back side, were going towards the main gate of the factory. Out of these, three persons belonged to Nepal and were known to him, whose names were Mani Lal, Bishan Bahader and Gurbahader. Mani Lal was armed with a dagger, Gurbahader was armed with Kulhari and other three persons were armed with dangs. The complainant and Umesh Kumar raised 'raula' upon which Ram Kirpal and his family members, who were sleeping near the main gate of the factory, woke up. On being questioned by Ram Kirpal, the appellants and their accomplices attacked him with their respective weapons. Upon this, the wife and children of Ram Kirpal tried to intervene, but they were also caused injuries. When the complainant and others reached near the place of occurrence, the assailants fled away. In the meantime, Ram Kirpal succumbed to the injuries.
4. The matter was reported to the police, who, after completion of investigation, submitted a challan against the appellants and two others, who were, later on, declared as proclaimed offenders.
5. The trial Court charged the appellants under Sections 458 and 460 of the I.P.C. to which they pleaded not guilty and claimed trial.
6. In order to establish its case, the prosecution examined as many as ten witnesses including the complainant and the doctors, who conducted post mortem on the dead body of Ram Kirpal and medico-legal examination of the injured persons.
7.In their statements recorded under Section 313 Cr.P.C., the appellants denied the allegations levelled against them and claimed innocence. It was also stated that their maternal uncle - Devi had a dispute with the complainant on account of which he was taken to police station where he was tortured and had died as a result thereof. Since they had protested against the same, they have been falsely implicated in the instant case and Ram Kirpal was murdered by some unknown persons.
8. However, no evidence in defence was led.
9. Learned Counsel for the appellants assailed the impugned judgment and order of sentence by contending that the identity of the appellants was seriously in doubt as they were apprehended one week after the incident and that it is in evidence that their names had been given to the witnesses. A specific reference was made to the following portion of the statement of complainant Chander Parshad, who appeared as PW5:
...On the night intervening 2/3-7-1993, I was sleeping on the roof of my quarter within the factory....
xxxx xxxx xxxx ...Names of the accused were disclosed to me by the police after the accused were arrested by the police. Accused were arrested by the police on the same night when the occurrence had taken place. I saw the accused on the same night at Police Station at 4 A.M. Ram Kirpal was sleeping on the cot with his small child. Occurrence lasted for half an hour. 1 continued raising raula for half an hour at the roof. Occurrence had taken place at a distance of 10 meter from the gate. No person from the neighborhood entered the factory after I raised raula. Accused had muffled their faces at the time of occurrence. Accused were never got identified by the police from me during investigation of this case or after that....
10. In view of the above, learned Counsel for the appellants argued that the conviction and sentence awarded by the trial Court to the appellants deserve to be set aside.
11. On the other hand, learned Counsel for the State contended that there was no dispute regarding the identity of the appellants, which was established, as the eye witnesses, who were also injured in the incident, have consistently deposed that the assailants were known to them being employees of a nearby factory and that on earlier occasion also, they had seen them in the locality. He argued that on the basis of the above referred stray statement of the complainant, who was eventually declared hostile during the trial, the identity of the appellants cannot be questioned.
12. I have thoughtfully considered the rival contentions and have also perused the record.
13. There is no denying the fact that an incident took place in which Ram Kirpal is said to have lost his life and his wife Rekha (PW6) and his children suffered serious injuries. The assailants escaped after the incident.
14. The sole question which this Court is to determine is as to whether the appellants are the persons, who actually executed the gruesome incident or they have been falsely implicated.
15. In a case such as the present one, the role of the prosecution is to establish the identity of the assailants beyond any doubt as concededly the assailants had escaped after the incident.
16. Now, evaluating the statements of the prosecution witnesses, who were either present on the spot or at the receiving end of the assailants and were eye witnesses, it transpires that PW-5 Chander Parshad apparently never saw the incident as he himself stated that he was sleeping on the roof of his quarter within the factory. It has nowhere come on record that he had descended his perch when the Incident took place near the gate of the factory where Ram Kirpal and his family members were sleeping. He only raised a noise while being on the roof itself which is also established from a perusal of the statement of PW-6 Rekha widow of Ram Kirpal, who stated that "the other watchman of the factory, who was on the roof, also raised raula." According to the testimony of PW 5, the assailants had muffled their faces, whereas PW 6 Rekha, who bore the burnt of the assailants' assault, had testified that five to six persons entered the factory premises and attacked her husband and other members of the family including her, but she could not state as to who was having a 'Kulhari' or as to which person armed with 'Kulhari' gave the fatal blow to her husband. She also failed to testify as to which particular weapon was being held by which particular assailant.
17. However, the Court is not moved by the above referred testimony of PW 6 Rekha widow of Ram Kirpal in any manner because in such a commotion and confusion, it is possible that she might have failed to notice and comprehend the aforestated facts. But, she also goes on to state that she had seen the accused persons passing from the street prior to the day of occurrence and that the police had never got them identified.
18. Indeed, the appellants might be the same persons moving in the locality, but were they the same persons, who committed the crime? Two of the witnesses stated that they were caught red-handed on the same night. PW 7 Vijay Kumar son of Ram Kirpal, who was also seriously injured in the incident, stated that the police had arrested the appellants the same night. He further stated that he could identify these persons as he had earlier seen them roaming about in the vicinity of their locality.
19. In complete contradiction to the above evidence regarding arrest of the appellants is the statement of PW9 A.S.I. Amarjit Singh, who stated that the accused persons, namely, Mani Lal and Bishan Bahader were arrested on 10-7-1993, whereas Aan Bahader was arrested on 16-7-1993. No identification parade was got carried out which has been admitted by this witness. Thus, the possibility of the accused having been shown to the witnesses cannot be ruled out. Had the injured witnesses, i.e. PW 6 and PW 7, seen the accused in the vicinity and recognised them to be the assailants, then they certainly would have told the police about it. But, no such evidence is there on record.
20. PW 9 also goes on to say that after interrogating the accused persons, especially Aan Bahadur, in an abadi area, he effected recovery of 'kulhari' from him. No independent witness was enjoined by him at the time of effecting such recovery.
21. It was imperative upon the Investigating Officer to establish the identity of the assailants by carrying out a test identification parade when concededly the assailants had escaped after the incident and were arrested much later. Having failed to do so conclusively, this Court has no option but to give the benefit of doubt to the appellants. Accordingly, the appeal is accepted, the impugned judgment and order of sentence are set aside and the appellants are acquitted of the charge against them by giving benefit of doubt.