Punjab-Haryana High Court
State Of Haryana vs Rakesh Kumar And Others on 12 February, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
CRM-A No. 294-MA of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
Date of decision : 12.2.2013
CRM-A No. 294-MA of 2012
State of Haryana ........Applicant-appellant
Vs.
Rakesh Kumar and others .......Respondents
CRM-A No. 265-MA of 2012
Jagga Singh ........Applicant-appellant
Vs.
Rakesh Kumar and others .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
Present:- Mr. Pardeep Singh Poonia, Addl. AG, Haryana
for the applicant-appellant
Mr. Baldev Singh, Senior Advocate with
Mr. Deepender Singh, Advocate, for the respondents
---
Jasbir Singh, J.
The State of Haryana has filed this application under Section 378 (3) Cr.P.C. seeking leave to file an appeal against judgment dated 8.2.2012 vide which the respondents were acquitted of the charges framed against them.
Another application bearing No.CRM-A No. 265-MA of 2012 has also been filed by the applicant-complainant under Section 378 (4) CRM-A No. 294-MA of 2012 -2- Cr.P.C. seeking leave to file an appeal against the judgment referred to above.
Both the applications have arisen from a common judgment and will be disposed of by passing this common order. To dictate order, facts are being taken from CRM-A No. 294-MA of 2012, application filed by the State of Haryana.
The process of law was started when Inspector Jagat Singh received a call from ASI Tarsem Lal PW 40, intimating him that Chand Singh Brar was killed by some persons on a road leading from village Ganga to village Munnawali. He went to the place of occurrence and found the applicant-complainant namely; Jagga Singh and one Chhotu Ram Saharan present at the spot. On statement made by the applicant- complainant Ex.P-79, investigation was started.
The trial Judge has noted the following facts regarding case of the prosecution, as per the statement made by above named witness :-
"That he was resident of Dabwali and they were three brothers and his elder brother Chand Singh was an agriculturist and property dealer and was also an office bearer of the Congress Party. About one month ago, two persons, one with lean structure, fair complexion, tall, aged 30-35 years using spectacles, and another person aged 30-32 years, height 5.8"
with small mustaches, who was addressing the other one as Nittu, came to arrange one compact piece of 30/35 acres of land by the side of the road where they wanted to install some power plant and they asked for arranging good piece of land for the purpose. Thereafter, yesterday on 28.4.2006 his brother received a call from said Nittu on his mobile phone No. 94164-87978 during day time and again during night, CRM-A No. 294-MA of 2012 -3- informing that they would be coming in the early morning to see the location of the land and that they (complainant and his brother) should be ready for that. Today at about 6.00/6.15 AM his brother Chand Singh woke him (complainant) up and said that the party from Delhi had come to see the location of the land and he should come outside immediately. He immediately reached the courtyard of the Baithak and noticed that said Nittu and his companion were standing there with his brother. When they came outside, they found an Accent car of White colour, parked there with a person sitting on the driver seat. He (complainant), his brother Chand Singh and two Dehlites sat in the car and moved towards village Ganga to see the location of the land and at about 7.00 AM when they reached about one kilometer from village Ganga to village Maunnawali, then said Nittu, sitting by the side of the driver, asked the driver to stop the car and the driver stopped the car and they all five came out of the car. Nittu, along with his associate, addressed his brother in a changed tone that they would teach a lesson to him for opposing Vinod Arora son of Khan Chand, resident of Mandi Dabwali. Saying so, said Nittu fired a shot from his mouser (pistol) at the head of his brother as a result of which his brother fell down. Before he (complainant) could take care of his brother, another person fired a shot at him. He was scared and fled from the spot towards the fields taking shelter behind the buses and he saved himself with great difficulty. Thereafter, he heard the noise of two more fire shots. It has been reported that about 3-4 days ago when he along with his brother Chand Singh were standing in front of their house, Vinod Arora and Abhey Singh Chautala alias Billu came there from the side of the bus stand and after alighting from the car they threatened them (complainant and his brother) that either they should leave Dabwali town or they would be done to death. He expressed CRM-A No. 294-MA of 2012 -4- his doubt that his brother has been killed by Nittu and his associates due to political rivalry under a conspiracy hatched at the instance of Vinod Arora and Abhey Singh Chautala and he could identify Nittu and his other two associates. He informed Chhotu Ram Saharan about the incident on telephone from village Ganga and on receipt of information, Chhotu Ram Saharan came to Bus Stand of village Ganga and he along with Chhotu Ram Saharan reached at the spot and found that his brother was lying dead on one side of the road. The complainant alleged that death of his brother was occurred due to fire injuries caused by Nittu and his associates. They had also informed the police at Police Post Goriwala about the incident and the police reached at the spot."
Crime Team and Dog Squad Team were called at the spot. The dead body and its surroundings were photographed. Inquest proceedings were prepared upon the dead body. The Investigating Officer picked up 2 empties from the spot. One pair of hawai chappal and blood stained earth were also taken into possession against recovery memos. The Investigating Officer also got prepared a rough site plan with correct marginal notes. He requisitioned call details of some telephone numbers to further investigate the case. Respondents No.1 and 3 namely; Rakesh Kumar and Sushil Kumar respectively, were arrested on 5.5.2006. Respondent No.1 got recovered the Accent car, which was used to commit the crime. On further interrogation, respondent No.1 also got recovered some more offending material.
As per case of the prosecution, Mohammad Shah Alam and Indu alias Satinder were the main organizers of the crime. Both have been CRM-A No. 294-MA of 2012 -5- killed in the encounters by the UP Police. Vishwas alias Nepali-another co-accused was declared a proclaimed offender. Sat Narain alias Raju Ganda was discharged by the Court below vide order dated 20.9.2007. Abhay Singh Chautala was not named as an accused in the final report.
During investigation, it transpired that main killers were arranged from Uttar Pradesh by Vinod Kumar and Pardeep Kumar Godara respondents No. 4 and 5 respectively, under a conspiracy with other respondents-accused.
Initially, the final report was presented against respondents No.1 to 3. Copies of the documents were supplied to them as per norms. Their case was committed to the competent Court for trial and vide order dated 20.9.2007, they were charge sheeted for commission of offences under Sections 302 and 307 read with Section 120 B IPC, to which they pleaded not guilty and claimed trial. Respondent No.5 was arrested on 25.12.2007. Respondent No.4 was surrendered and arrested on 18.2.2008. Supplementary challan was presented against them and the same was committed to the Court of Sessions for 23.3.2009 and on the same very day, they were charge sheeted, to which they also pleaded not guilty and claimed trial. The prosecution produced 47 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of prosecution's evidence, separate statements of all the respondents-accused were recorded under Section 313 Cr.P.C. Incriminating evidence on record, was put to them, which they denied, pleaded innocence and false implication. They also led evidence in defence.
CRM-A No. 294-MA of 2012 -6-
The respondents-Accused brought in the witness box Ramesh Kumar Pingal, JTO, BSNL, Hisar as DW-1 to say that mobile phone No. 94164-25843 was issued in the name of one Fakir Chand Garg.
The trial Judge on appraisal of evidence found the respondents-accused not guilty. By giving them benefit of doubt, they were ordered to be acquitted of the charges framed against them.
Against the respondents-accused, it was an allegation of the prosecution that they had conspired to commit the crime. Killers were arranged by them in conspiracy with each other.
After analyzing the evidence on record, the trial Judge has observed as under :-
"24. Therefore, as per the prosecution version two assailants out of the said three assailants who took Chand Singh Brar and murdered him, have been killed in encounters by the U.P. Police and the third assailant Vishwash alias Nepali has been declared a proclaimed offender and the accused facing trial have been charge sheeted for the commission of offence of conspiracy allegedly hatched to murder Chand Singh Brar due to political rivalry."
It was noted by the trial Court that the two main accused were killed by the Uttar Pradesh Police in encounters and third has been declared a proclaimed offender. To nail the respondents-accused as the conspirators, the prosecution placed reliance upon call details of the mobile phones and disclosure statements made by them in getting the mobile phones etc. recovered.
After examining the evidence in a thread bare manner, in that CRM-A No. 294-MA of 2012 -7- regard it was said as under :-
"31. However, the prosecution has only lead the circumstantial evidence in the form of recovery memos and call details in order to show that the accused facing trial were having telephonic talk as well as the accused have talked with the alleged killers whose mobile phones have been projected as 99103-18739 and 99103-18743 and as per the call details Ex.P30 of mobile phone No. 94164-87978 (alleged to be of accused Pardeep Kumar) and as per call details Ex.P31 of mobile phones No. 99103-18743 and of 99103-18739 (alleged to be of the hired killers) in which mobile phone No. 92540-04877 of accused Vinod Arora also find figure, the accused Pardeep Godara and Vinod Arora have talked on mobile phones No. 99103-18743 and of 99103-18739 on the day of occurrence and prior thereto whereas accused Sushil Saini has allegedly provided accommodation to the assailants who had allegedly stayed in the said house and accused Rakesh Kumar has allegedly provided his domestic servant Satya Narain alias Raju Ganda to cook food for the assailants in the accommodation provided by accused Sushil Saini whereas accused Bimal Kumar has allegedly provided his car bearing No. HR 24 H 6422 to the assailants.
EVIDENCE AGAINST ACCUSED RAKESH KUMAR, SUSHIL SAINI AND BIMAL KUMAR.
32. As per the prosecution version in view of deposition of Jagat Singh inspector PW46 it emerges that on 5.5.2006 when he along with Tarsem Lal ASI, Jeet Ram HC and other police officials was present at Delhi Pool, Hisar Road, Sirsa where Accent Car No. HR 24 F 6422 came and they stopped the said car and arrested accused Satya Narain, Bimal Kumar, Sushil Kumar and Rakesh Kumar and took the said car in custody vide memo Ex.P84 attested by the witnesses. As per his CRM-A No. 294-MA of 2012 -8- deposition two cheque books and pass book of the bank were also recovered from the dash-board of the car which were taken into possession vide the same memo Ex.P84 and on 6.5.2006 he interrogated all the accused.
33. First of all accused Rakesh Kumar suffered his disclosure statement Ex.P101 from which he lateron retracted and on 6.5.2006 he again suffered disclosure statement Ex.P107 before Daya Nand Inspector PW7 and thereafter accused Sushil Saini was interrogated by Jagat Singh Inspector PW46 who suffered his disclosure statement Ex.P85 but no such disclosure statement of accused Bimal Kumar was recorded and accused Rakesh Kumar allegedly got recovered two mobile phones which were taken into police custody vide recovery memo Ex.P86 and accused Sushil Saini got recovered his mobile phone vide recovery memo Ex.P87.
34. From the disclosure statements Ex.P101 and Ex.P107 of accused Rakesh Kumar it emerges that the said statement were in the form of confession and in the later part no doubt accused Rakesh Kumar has suffered to get recovered the mobile phones bearing No. 92451-00384 and 98120-51000.
35. In order to prove the factum of hatching of conspiracy, the prosecution has examined Ranjeet Singh alias Happy as PW4 but this witness has not supported the prosecution version and was declared hostile to the prosecution and the learned Public Prosecutor was allowed to put questions in the form of cross examination.
In his cross examination the contents of statement Ex.P5 were read over and explained to the witness but he has stated that no such statement was made by him before the police. He has denied the suggestion that accused Rakesh Kumar, Pardeep Kumar, Sushil Saini MC present in the court and Anil Goyal and Sant Sarup were known to him on account of their visit to Vishal Properties. He has denied the giving of CRM-A No. 294-MA of 2012 -9- statement that on 1.5.2006 accused Rakesh Arora asked him to take Accent vehicle from Bus Stand and to leave at his house. He has also denied the giving of statement that accused Rakesh Arora asked him to take Scorpio vehicle No. HR F 0082 from his house and according to the directions of accused Rakesh he took Accent vehicle bearing No. HR 24 H 6422 from Bus Stand and left the same at the house of accused Rakesh Arora and from the house of Rakesh he took Scorpio and left the same at the house of accused Pardeep in village Chautala. He has also denied the giving of statement that three young boys were residing in the house of accused Sushil M.C. Along with Raju Ganda alias Satya Narain domestic servant (who has been discharged by the court). He has also denied the giving of statement that accused Raju Ganda disclosed to him that the said three persons were man of accused Pardeep Godara and Rakesh Kumar. Therefore, by cross examining this witness the learned Public Prosecutor has failed to extract any incriminating evidence against the accused. This witness has been projected by the prosecution that he took the Accent car No. HR 24 F 6422 to the house of Rakesh Kumar and in exchange he brought Scorpio vehicle No. HR 15 F 0082 to the house of accused Pardeep Kumar as well as in order to prove that the domestic servant Raju Ganda alias Satya Narain (who has since been discharged) disclosed to him that three persons were staying in the room which was provided by the accused Sushil Saini on the asking of accused Pardeep Godara and Vinod Arora but this witness has not supported the prosecution version against any of the accused.
36. The prosecution has examined Ved Parkash son of Jagdish Rai as PW14 to prove that the house belonging to accused Sushil Saini was occupied by the killers till 29.4.2006. However, this witness has also not supported the prosecution version and has stated that on 25.4.2006 he CRM-A No. 294-MA of 2012 -10- visited the said house and at that time it was lying vacant and the said house was purchased by him in view of the agreement Ex.P23 from accused Sushil Saini. This witness too was declared hostile to the prosecution and the learned Public Prosecutor was allowed to put questions to the witness in the form of cross examination. In his cross examination contents of his statement Ex.P24 were put to the witness but he has denied the giving of said statement. In his cross examination on behalf of the accused he has deposed that he has been residing in the said house since 28.4.2006 along with his family. Therefore, this witness has also not supported the prosecution version in order to prove that the house owned by accused Sushil Saini was allegedly occupied by the assailants (hired).
37. To substantiate the hatching of conspiracy, the prosecution has produced Jagbir Singh son of Joginder Singh as PW31. However, this witness has also not supported the prosecution version and has gone to the extent in saying that he does not know Rakesh Kumar, Property Dealer as well as accused Pardeep Godara. This witness too was declared hostile and was allowed to put question in the form of cross examination. In his cross examination the contents of statement Ex.P71 were read over and explained to the witness but the witness has denied the giving of statement to the police that approximately 15/20 days prior to 3.5.2006 he had gone to the office of Rakesh Kumar property Dealer situated at Begu Road, Sirsa and in the cabin Raju servant, Sushil MC and Pardeep were sitting besides an old man and were talking with each other and he sat there and in his presence Pardeep Godara accused disclosed that 2-3 persons would come there and asked them for making arrangement for their boarding and lodging. The witness was confronted with portion A to A but he has denied the giving of said statement. The witness CRM-A No. 294-MA of 2012 -11- has denied the giving of statement that Pardeep Godara was asking said old man to provide them Accent vehicle to the said persons as they would do an important work for them and not to disclose the said plan to any body and all the said persons left except accused Rakesh Kumar. The witness was confronted with portion B to B of statement Ex.P71 but he denied the giving of said statement. The witness also denied the giving of statement before the police that the said persons were conspiring to murder Chand Singh Brar. Therefore, the most important witness PW31 Jagbir Singh who has been projected by the prosecution to have heard about the conspiracy to commit murder of Chand Singh Brar has not supported the prosecution version by any stretch of imagination. Moreover, it is most unreliable that a conspiracy to commit a murder would be hatched in the presence of an outsider who is not a party to the conspiracy and as such the story as projected by the prosecution is not worth relying upon and is highly unnatural."
It was noticed by the trial Judge that most of the witnesses regarding conspiracy, have failed to support case of the prosecution. Recovery of the car bearing No. HR 24 F 6422 has also been disbelieved by giving good reasons in Paras No. 38 and 39 of the judgment under challenge.
To give benefit of doubt to respondents-accused Pardeep Kumar Godara and Vinod Kumar, the trial Judge opined as under :-
"44. It is again pertinent to mention here that the police has not filed challan against Abhey Singh Chautala and as admitted by Jagat Singh inspector PW46 the said allegations of threat were found to be false and the Hon'ble High Court has also dismissed the complaint regarding the threat.CRM-A No. 294-MA of 2012 -12-
Therefore, the allegations of suspicion against accused Vinod Arora and Abhey Singh Chautala were found false and as such the hatching of conspiracy at the initial stage due to political rivalry cannot be said to have been substantiated.
45. The name of accused Pardeep Godara has not been mentioned even in the statement Ex.P79 of complainant Jagga Singh and the name of Pardeep Godara was also not mentioned in the petition which was filed by Jagga Singh before the Hon'ble High Court for CBI investigation and the said petition was dismissed on 14.5.2010 by the Hon'ble High Court and the name of accused Pardeep Godara has been mentioned when Jagga Singh complainant appeared in the witness box as PW36 on 9.9.2010. The name of Pardeep Godara has also not been mentioned by Jagga Singh complainant in any of his supplementary statements Ex.D5 to Ex. D10. Thus mentioning of name of Pardeep Godara as an accused at such a belated stage itself raises doubt over the prosecution version."
It has also come on record that Jagbir Singh PW31, who was the main witness to prove allegations of conspiracy against the respondents-accused, has not supported case of the prosecution. It has also come on record that Scorpio vehicle, alleged to have been recovered, was not registered in the name of Pardeep Godara-the respondent accused.
Giving good reasons, recovery of offending material has been disbelieved against the respondents-accused. The prosecution has relied upon the statement made by Ved Parkash PW14 to say that to the alleged assailants, accommodation was provided by Pardeep Godara and Vinod Kumar-the respondents accused. However, during trial, above witnesses have not supported case of the prosecution.
CRM-A No. 294-MA of 2012 -13-
It was case of the prosecution that through the mobile phones bearing No. 99103-18739 and 99103-18743 recovered from the respondents-accused, they were in touch with the assailants. To say that those sim cards were handed over to the assailants by one Dharamvir PW45 after purchasing at Gurgaon in the month of May 2006. This witness has not supported case of the prosecution. As per deposition made by Subhash Chander, District Inspector, PW7, those sim cards were issued in the name of Bhim Singh son of Kartar Singh resident of Gurgaon but the said person was not named as a witness by the prosecution.
It was further case of the prosecution that those sim cards were handed over to the assailants by Raju Ganda alias Sat Narain, however, during trial the said accused was discharged vide order dated 20.9.2007.
After examining the evidence, the trial Judge came to a conclusion that the prosecution has failed to establish, as to who had used the above said two mobile numbers for the period between 15.4.2006 to 26.4.2006. From those mobile numbers, large number of calls were made and SMS were sent, but no person was joined in the investigation to know the sender of those SMS. Most of the witnesses regarding conspiracy, have turned hostile. Counsel for the applicant has failed to show any misreading of evidence on the part of the trial Judge. The entire evidence has been discussed in a detailed manner. The conclusions are supported by good reasoning given by the trial Judge.
Their Lordships of the Supreme Court in 'Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748', held that CRM-A No. 294-MA of 2012 -14- where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in 'State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991 (1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of 'Goa v. Sanjay Thakran, (2007) 3 SCC 755', and in 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415', it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In 'Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts CRM-A No. 294-MA of 2012 -15- etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602', the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is CRM-A No. 294-MA of 2012 -16- that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Counsel for applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Accordingly, the application is dismissed.
(Jasbir Singh) Judge (Sabina) Judge 12.2.2013 Ashwani