Yogesh Kumar vs State Of Haryana on 22 August, 2008

[Cites 13, Cited by 2]

Punjab-Haryana High Court

Yogesh Kumar vs State Of Haryana on 22 August, 2008

The appellant along with other co-accused faced trial in case FIR No.320 of 21.8.1990,under Sections 147, 148,149 454, 435,436 477 IPC and ¾ of the Prevention of Damage to Public Property Act, 1984, Police Station Ambala Cantt. Vide judgment dated 11.1.1997 passed by Shri P.L.Ahuja, the then Additional Sessions Judge, Ambala, the co-accused of the appellant were Criminal Appeal No.70-SB of 1997.

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acquitted but he was convicted under Sections 148, 451, 435, 436, 152, 186, 353 read with Section 149 IPC and ¾ of the Prevention of Damage to Public Property Act, 1984 and vide separate order dated 13.1.1997, he was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months under Section 4 of the Prevention of Damage to Public Property Act, read with Section 149 IPC. He was further sentenced to undergo imprisonment for a period of two years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months, under Section 3 of the Prevention of Damage to Public Property Act, read with Section 149 IPC. He was also sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months, for the offence punishable under Section 436 read with Section 149 IPC. He was further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo rigorous imprisonment for three months for the offence punishable under Section 435 read with Section 149 IPC. He was further sentenced to undergo rigorous imprisonment for a Criminal Appeal No.70-SB of 1997.

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period of one year for the offence under Section 148 IPC. He was further sentenced to undergo rigorous imprisonment for a period of one year under Section 451 read with Section 149 IPC, to undergo rigorous imprisonment for a period of one year under Section 152 read with Section 149 IPC, to undergo rigorous imprisonment for three months under Section 186 read with Section 149 IPC and rigorous imprisonment for one year under Section 353 read with Section 149 IPC. All the sentences were ordered to run concurrently. However, the learned trial Court acquitted co- accused of the appellant.

The instant appeal is directed against the said judgment/order.

The brief facts, as are borne out from the record, are that on 21.9.1990, SI Om Parkash (since expired) alongwith ASI Tara Chand (PW18), HC Jai Singh (PW19) and other officials was present at General Post Office, Ambala Cantt in connection with duty in respect of anti-reservation duty. At about 11.45 A.M, a mob of 350 persons came from the side of Employment Exchange. The appellant along with his co-accused Raj Kumar, Amit Jindal, Lovely, Sanjay Mittal, Baljinder Dagar, Vivek, Lalit Kumar, Naveen Bhatnagar, Naveen alias Bittu were members of that mob. Three boys were riding on motor cycle No.HNC-5960. They were Criminal Appeal No.70-SB of 1997.

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holding one Pipi containing petrol. Hanni, Daljit, President G.M.N.College, Ambala Cantt, Dhiraj, Vijay Kumar, Sandeep Duggal, M.L.Sharma, Raju, Parveen, Anil Kumar, Sukhvinder Singh, Pardeep Khera, Raj Kishore, Suresh Kumar, Parveen Kumar, Sanjay Jain, Sunil, Ved Parkash, Vijay, Baljit, Veda and Kala etc. were also members of that mob. Those persons were carrying Dandas, Lathis and pieces of stones. They were shouting that G.P.O .be set on fire and money be looted and Government vehicles be set on fire. The violent mob started pelting stones. The members of the mob sprinkled petrol on the building and set the same on fire. The police resorted to lathi charge and the crowd dispersed. Thereafter, the mob went to the office of Post Master General, Ambala Cantt and set it on fire. Some vehicles parked outside the office of Post Master General were also set on fire. Then the crowd came on Gol Chakkar and set a vehicle of Fire Brigade of military on fire. Appellant Yogesh Kumar sprinkled petrol and his servant Raj Kumar alias Raju lit fire. Then the mob went to the Super Bazar, Rai Market, Ambala Cantt and looted the articles of the shops and the shops were set on fire. Lathi charge was resorted to and thereafter the crowd went to the office of Excise and Taxation Department and set it on fire. Government vehicles parked in the compound were also set ablaze. The crowd Criminal Appeal No.70-SB of 1997.

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started pelting stones on police and ASI Tara Singh received injuries. Thereafter, the crowd dispersed. Om Parkash SI sent ruqqa Exhibit PE to the Police Station on the basis of which the present case was registered against the accused persons. He also prepared site plans Exhibits PH to PR. Accused persons were arrested.

After the completion of investigation and other usual formalities, challan was presented in the Court against the accused.

The appellant and his co-accused were accordingly charge-sheeted to which they pleaded not guilty and claimed trial.

In order to substantiate its allegations, the prosecution examined PW-1 J.P.S.Parmar, PW-2 Madan Lal, PW-3 Naresh Chand Sharma, PW-4 Constable Jaipal, PW-5 Roop Lal, PW-6 Avtar Singh, PW-7 ASI Madan Lal, PW-8 Ram Mehar Chowkidar, PW-9 Tarlok Chand, PW-10 Satish Chander Wahi,PW-11 Tilak Raj Prasher, PW-12 Inder Pal, PW-13 Des Raj, PW-14 Shri Kulwant Rai Kalra, Assistant Accounts Officer,PW-15 Subhash Goyal, PW-16 Gulshan Kumar, PW-17 Constable Parkash Chand, PW-18 ASI Tara Chand and PW-19 HC Jai Singh.

In their statements recorded under Section 313 Cr.P.C, the accused pleaded false implication. However, they did not lead any evidence in their defence.

Criminal Appeal No.70-SB of 1997.

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The learned counsel for the appellant has submitted that, in this case, there were 20 accused who were charge-sheeted under the various provisions of Indian Penal Code as mentioned in the charge-sheet and under Section ¾ of the Prevention of Damage to Public Property Act. All the accused except the appellant have been acquitted by the learned trial Court. The other accused who have been arrested at the spot have even been acquitted on account of their non-identification. The learned trial Court has convicted the appellant on the basis of testimony of PW-18 ASI Tara Chand and PW-19 HC Jai Singh. Both these witnesses have stated that they have failed to identify any of the accused except appellant Yogesh Kumar. There was a reason for falsely implicating the appellant as the appellant was the leader of of Bhartiya Janta Yuva Morcha, Ambala and raised slogans against Inspector Sahib Ram, who was the then SHO of Police Station, Ambala Cantt. on many occasions prior to the occurrence. Inspector Sahib Ram was feeling aggrieved against the appellant on that count and only for this reason, PW-18 ASI Tara Chand and PW-19 HC Jai Singh identified the appellant in the Court. No identification parade was conducted by the police during investigation. So many private witnesses have been examined by the prosecution and none of them has identified any of the accused including the appellant. The Criminal Appeal No.70-SB of 1997.

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identification by the Police Officer, for the first time in the Court, cannot be the basis of conviction.

It has been further submitted that according to the case of the prosecution, there was mob of 350 persons which indulged in unlawful activities including setting the Government vehicles and property on fire. On the same set of evidence, 19 accused have been acquitted and there was no reason for the trial Court to convict the appellant. The testimony of two official witnesses who were inimical towards the appellant has been wrongly relied upon by the learned trial Court.

It has further been submitted that in the statements under Section 161 Cr.P.C of PW-18 ASI Tara Chand and PW-19 HC Jai Singh, there was no specific mention that Yogesh Kumar Garg, appellant made any provocation regarding setting on fire of Government vehicles.

Learned counsel for the appellant has further submitted that PW-19 HC Jai Singh in his cross-examination has stated that he has given the names of seven accused in his statement but when he was confronted with his statement under Section 161 Cr.P.C, the names of many other accused were mentioned there. He further stated that the names of other persons, other than seven might have been written by the Investigating Officer, himself. So, it was Criminal Appeal No.70-SB of 1997.

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submitted that when the Investigating Officer can manipulate the names of many accused, in that case, it is highly unsafe to convict the accused on the testimony of that witness.

The learned State counsel has supported the judgment of the trial Court. He has submitted that the other accused have been acquitted as they have not been identified by the eye witnesses. PW-18 ASI Tara Chand and PW-19 HC Jai Singh have supported the case against the appellant and his case is different from the other accused.

I have carefully considered the said submissions made by both sides and have gone through the record of the case.

The learned trial Court has convicted the appellant solely on the basis of testimony of PW-18 ASI Tara Chand and PW-19 HC Jai Singh. The prosecution has examined so many other private persons. None of them has identified the accused as culprit in the present case. Now, the question arises whether on the testimony of PW-18 ASI Tara Chand and PW-19 HC Jai Singh conviction can be based. The answer to that question is in the negative. H.C. Jai Singh has stated that he has given the names of 7 accused to the Investigating Officer and names of other accused have been mentioned by the Investigating Officer himself. So, in case his statement is taken as correct, in that case, the names of 13 Criminal Appeal No.70-SB of 1997.

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accused have been mentioned by the Investigating Officer himself. Investigating Officer was not examined as he expired during the pendency of case. So, when there were chances of manipulation of the names of 13 accused, in that case, the testimony of this witness cannot form basis of conviction of appellant. On the same set of evidence,all the accused except appellant have been acquitted. Even the accused who have been arrested at the spot have been acquitted by the trial Court. No identification parade was held at any stage of trial. The defence version is more probable and the possibility cannot be ruled out that PW-18 ASI Tara Chand and PW-19 HC Jai Singh have specifically named the accused on account of grudge of the SHO of the Police Station with the appellant as suggested to these witnesses. Needless to say, PW-18 ASI Tara Chand and PW-19 HC Jai Singh being subordinates of Inspector Sahib Ram will toe to the line of his superior in identifying the appellant. Both these witnesses have also named other persons in the Court itself but those persons have been acquitted by the trial Court. So, no ground for convicting the appellant in such a serious offence is made out. In the FIR itself, the names of other accused are mentioned. The Court cannot do imparity with the co-accused situated in similar situation.

PW-18 ASI Tara Chand has stated that Vijay Mittal Criminal Appeal No.70-SB of 1997.

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accused caused him injury with the help of a piece of stone. Said Vijay Mittal has not even been recognised by this witness in the Court. The reason for falsely identifying the appellant is that he had raised slogans against Inspector Sahib Ram.

Further more, the statements of PW-18 ASI Tara Chand and PW-19 HC Jai Singh are discrepant on material particulars. PW-18 ASI Tara Chand stated that the appellant sprinkled petrol and Raj Kumar accused set the vehicle of Fire Brigade on fire. But, PW-19 HC Jai Singh deposed that appellant Yogesh Kumar sprinkled petrol on the vehicle of Fire Brigade and he also set the said vehicle on fire. PW-18 ASI Tara Chand deposed that SHO Sahib Ram met him on PMH and they went to the Goal Chakkar in the vehicle of the SHO. On the other hand, PW-19 HC Jai Singh, who was also a member of the police party, stated that the SHO did not meet them. These material contradictions in the statements of PW-18 ASI Tara Chand and PW-19 HC Jai Singh shake the veracity of their testimony and no implicit reliance can be placed on their statements, particularly when they had a strong motive for falsely implicating the appellant.

Moreover, it is not safe to base conviction of the appellant on the same set of evidence on which the other 19 co-

Criminal Appeal No.70-SB of 1997.

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accused have been acquitted.

In view of the above discussion, the appeal is accepted. The impugned judgment/order of the trial Court stand set aside and the appellant stands acquitted of the charges framed against him by giving him benefit of doubt.

A copy of this judgment be sent to the trial Court for strict compliance.


August 22nd ,2008.                            ( K. C. Puri )
Jaggi                                            Judge

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Punjab-Haryana High Court