Punjab-Haryana High Court
State Of Haryana vs Anil @ Kala on 6 January, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
Crl. Misc. No. 644-MA of 2009 (O&M) :1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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Crl. Misc. No.58275 of 2009 and
Crl. Misc. No. 644-MA of 2009
Date of decision : January 6, 2010
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State of Haryana
............appellant
Versus
Anil @ Kala
...........respondent
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CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
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Present: Mr. S.S Randhawa, Additional Advocate General,
Haryana.
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JORA SINGH, J.
Crl. Misc. No.58275 of 2009 After perusing the averments made in the application, we are of the view that delay in filing appeal is neither intentional nor deliberate. So application to condone the delay of 50 days in filing the appeal is accepted and delay in filing the appeal is condoned.
Crl. Misc. application stands disposed of.
Crl. Misc. No. 644-MA of 2009 State of Haryana has filed this application under Section 378(3) Cr.P.C for grant of leave against the judgment of acquittal dated 19.5.2009 rendered by the Additional Sessions Judge, Rohtak. Vide this judgment, Anil @ Kala was acquitted of the charge levelled Crl. Misc. No. 644-MA of 2009 (O&M) :2: against him in FIR No. 164 dated 28.8.2006 registered under Sections 302/201 IPC at Police Station Sampla.
Prosecution story, in brief, is that FIR No. 164 dated 28.8.2006 was registered on the basis of the statement of Jaspal Sharma (PW-6). Jaspal Sharma reported to the police that on 25.8.2006 at about 8:00 a.m, he was going towards his village and was present near the fields of Ishwar then noticed a dead body of an unknown person. No injury was noticed by him on the dead body. The dead body was of a man of 40/45 years of age. After deputing, Ram Niwas, Chowkidar to guard the dead body, he came to police to lodge the FIR. On the basis of the statement of Jaspal Sharma (PW-
6) FIR No. 267 dated 20.12.2005 under Sections 323, 452, 306 of the Indian Penal Code was registered at Police Station Sampla. Dead body of unknown person was cremated by the police after taking its photographs and keeping the clothes of the deceased. in that FIR on 14.1.2007, Anil @ Kala was arrested. He was interrogated and on interrogation, he suffered a disclosure statement that he was having a dispute regarding money with Ashwani alias Fauji and due to that dispute, he has murdered Ashwani alias Fauji. In view of the disclosure statement, Rampant and Sandeep, father and brother of Ashwani were summoned to the police Station. From the photographs of the dead body and clothes of the deceased, Rampat and Sandeep had identified the photographs and clothes of the deceased Ashwani.
After the completion of investigation, accused was challaned. Vide order dated 5.5.2007, case was committed to the Crl. Misc. No. 644-MA of 2009 (O&M) :3: Court of Session for trial. Accused was charged under Sections 302 and 201 of the Indian Penal Code. Accused did not plead guilty and claimed trial.
In support of its case, the prosecution examined 15 witnesses.
PW-1 Naresh Kumar EHC has tendered his affidavit. He has delivered special reports to Illaqa Magistrate.
PW-2, Ram Niwas stated that on 25.8.2006, he had gone to answer the call of nature. On the way, he met Jaspal Sharma, Sarpanch and other villagers. They were present near a culvert. He was deputed to guard the dead body of an unknown person. Jaspal Sharma had gone to lodge report.
PW-3, Suraj Bhan stated that he along with Ram Niwas, ASI was present near Sampla Chowk. Jaspal Sharma, Sarpanch had met the police party. Statement of Jaspal Sharma, Ex. P2 was recorded and was sent to the police Station.
PW-4, Raj Singh, Patwari has proved scaled site plan Ex.P-7.
PW-5 HC Om Parkash proved the copy of FIR Ex. P-8. PW-6 Jaspal Sharma stated that he was going towards the village then noticed the dead body of an unknown person near the fields of Ishwar. He deputed Ram Niwas Chowkidar to guard the dead body. Matter was brought to the notice of police. His statement Ex.P-2 was recorded by police.
PW-7, ASI, Ram Niwas is the Investigating Officer. He has recorded the statement of Jaspal Sharma.
Crl. Misc. No. 644-MA of 2009 (O&M) :4:
PW-8, Rampat is the father of Ashwani Kumar, deceased. He stated that on 22.8.2006, his son Ashwani was irrigating the fields. Anil alias Kala came and requested his son Ashwani to accompany him. Ashwani had accompanied Anil alias Kala. Thereafter, Ashwani failed to return. Matter was brought to the notice of the police. He identified the clothes and photographs of his son Ashwani.
PW-9, Saroj stated that about two years back at about 7:30 p.m, Ashwani came but she cannot tell who was accompanying Ashwani. Saroj failed to identify the accused as to whether he was accompanying Ashwani or not.
PW-10, Constable Anil stated that on 17.1.2007, SI, Kartar Singh had interrogated Anil alias Kala. Anil suffered disclosure statement and as per disclosure statement he got recovered one danda and the same was taken into police possession.
PW-11, Dr. Vinod Kumar Kangra, Medical Officer had conducted post mortem examination on the dead body of unknown person.
PW-12, Pardeep Gill has brought the summoned record of FIR No.267 dated 20.12.2005.
PW-13, SI Samunder Singh stated that on 14.1.2007, Anil was interrogated. He suffered disclosure statement to the effect that he was having cordial relations with Ashwani. He had borrowed Rs.30,000/- from Ashwani. Ashwani was demanding his money about five months back. They purchased liquor from a wine shop Crl. Misc. No. 644-MA of 2009 (O&M) :5: and visited Bhallaut minor. After consuming liquor, he had some altercation with Ashwani.
PW-14, Kartar Singh had also investigated the case in hand.
PW-15 Naresh is the photographer. He had proved photographs Ex.P36 to Ex.P38.
Learned State counsel argued that on 22.8.2006, Ashwani was irrigating his land. Anil alias Kala came there and requested Ashwani to accompany him. Ashwani was seen last time in the company of the accused by Rampat, but statement of Rampat was not taken into consideration. Danda used to commit the crime was recovered in pursuance of the disclosure statement but statement of SI, Samunder Singh was also ignored. Evidence on the file was not properly scrutinized by the trial Court. Therefore, he prayed for setting aside the impugned judgment and for convicting the accused for the alleged offence.
After going through the evidence on the record, we don't find any substance in the submission of the learned State counsel. Evidence on the file shows that, Ashwani was irrigating his fields on 22.8.2006. His father, Rampat was also present there. Anil alias Kala came and requested Ashwani to accompany him. Ashwani had gone with Anil alias Kala. That means Rampat had seen the deceased last time in the company of Anil alias Kala but if Ashwani failed to return home then his father Rampat was expected to report the matter to the police next day or after few days. Ashwani was missing w.e.f 22.8.2006 but no report was lodged with the police by Crl. Misc. No. 644-MA of 2009 (O&M) :6: his family members. For the first time, Rampat reported the matter to the police on 4.12.2006. No explanation has been given as why matter was not brought to the notice of the police when Ashwani was not traceable. Evidence shows that on 25.8.2006, dead body of an unknown person was noticed by Jaspal Sharma (PW-6). Chowkidar was deputed to guard the dead body then Jaspal Sharma had reported the matter to the police. After the recovery of dead body on 25.8.2006, post mortem examination was conducted on 28.8.2006. Dr. Vinod Kumar while appearing as PW-11 stated that dead body was fully decomposed. Dead body was not identifiable. It is also a debatatable question is whether the dead body recovered was of Ashwani or somebody else. So statement of Rampat that he identified the deceased from the photographs was rightly ignored by the trial Court.
Next important witness is PW-10, Constable Anil and PW-13, SI Samunder Singh. In FIR No.267 dated 20.12.2005, Anil alias Kala was arrested by the police on 14.1.2007. Accused was interrogated. Accused suffered disclosure statement and in pursuance of the disclosure statement, he got recovered one danda. Anil alias Kala had also disclosed to the police that he had borrowed Rs.30,000/- from Ashwani and about 5 months back, Ashwani was demanding money. On the day of occurrence, liquor was consumed near the canal minor. After consuming liquor, he had some altercation with Ashwani. As per disclosure statement, a danda was got recovered, but in one opinion the recovery of a danda is not sufficient to connect the respondent-accused with the crime because Crl. Misc. No. 644-MA of 2009 (O&M) :7: danda was not blood stained, and when it was produced in the Court then it seemed to be a new one. If we presume that a danda was recovered as per disclosure statement then the question is whether with the recovery of danda, it is established that the injuries were caused to Ashwani by the accused. Jaspal Sharma stated that when dead body was noticed at that time, no injury was noticed on the person of dead body. So recovery of danda as per disclosure statement is not helpful to the prosecution to opine that crime was committed by the respondent-accused.
Prosecution made an effort to show that before the present occurrence, respondent-accused had borrowed Rs.30,000/- from Ashwani. Ashwani was demanding his money. There was dispute amongst the deceased and the respondent-accused, but, in support of this allegation, there is no evidence on the file. Rampat has not stated a word that before the alleged occurrence, respondent-accused had borrowed Rs.30,000/- from Ashwani. Ashwani was demanding money but respondent-accused was not ready to make payment and there was dispute between them. In case respondent-accused had borrowed Rs.30,000/- from Ashwani and Ashwani was demanding his money then Ashwani was not expected to accompany the respondent-accused on 22.8.2006. It is not the case of the prosecution that on 22.8.2006 when Anil alias Kala came then he stated that payment is ready and requested Ashwani to collect payment from his house or at some other place. So story qua motive put by the prosecution is also doubtful.
Next circumstantial evidence to connect the respondent- Crl. Misc. No. 644-MA of 2009 (O&M) :8: accused with the crime is that on 22.8.2006, Ashwani along with Anil alias Kala had gone to the house of Saroj to separate grain. Saroj appeared as PW-9 but failed to support the prosecution story. Saroj stated that at 7:30 p.m about two years back, Ashwani came to her house but did not state a word that respondent-accused was accompanying Ashwani. Saroj specifically stated that she cannot tell who was accompanying Ashwani. Saroj was declared hostile.
It is well settled that when there are two versions then version favourable to the accused is to be accepted as held in State of Punjab Vs. Hansa Singh, 2001 (1) RCR (Criminal), 775. The Hon'ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, 1991(1) SCC 166 has held that interference in an appeal against acquittal is called for only when the judgment under appeal is perverse or based on misleading of the evidence, and not merely because the appellate Court is inclined to take a different view.
As a sequel to the above discussion, we do not find any reason to grant leave to appeal. Hence the same is declined. Dismissed.
( JORA SINGH )
JUDGE
January 6, 2010 ( SATISH KUMAR MITTAL )
ritu JUDGE