Punjab-Haryana High Court
Faquir @ Hari Ram And Others vs State Of Punjab on 4 August, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No.288-DB of 2007
Date of Decision: 4.8.2011
Faquir @ Hari Ram and others.
....... Appellants through
Shri P.S.Punia,
Advocate- amicus
curiae.
Versus
State of Punjab.
...... Respondent through
Shri K.D.S.Sidhu,
Additional Advocate
General, Punjab.
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE VIJENDER SINGH MALIK
....
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the
Digest?
....
VIJENDER SINGH MALIK,J.
Faquir alias Hari Ram, Surti alias Matel and Sanyasi alias Deepak have preferred this appeal against the judgment dated 1.2.2007 passed by learned Sessions Judge, Kapurthala holding the appellants guilty and convicting them for the offence punishable under section 302 of the I.P.C. and the order of sentence of the same date vide which they have been sentenced to undergo imprisonment for life Crl.Appeal No.288-DB of 2007 -2- ....
and to pay a fine of Rs.5000/- each and further rigorous imprisonment for a period of six months in default of payment of fine for the offence. The case set up by Police Station, City Kapurthala against the appellants and five others, namely, Birju alias Deena, Balkar alias Duri, Makhni Nath alias Boota, Makhan and Shallu alias Raju (since acquitted of the charge) is as under:-
Complainant, Ravinderpal Singh is a resident of village Kadupur, District Kapurthala. He came to India from England about six months earlier to 25.9.2003. On the said date, he and his grand father Nazar Singh took dinner and went to sleep in their room while his grand mother Pritam Kaur went to sleep in verandah of the house. The complainant had not closed the door of his room. At about 1.30 A.M. on 26.9.2003, some one had hit his head with an object on account of which he woke up. He saw three persons in the age group of 19/20 years armed with kirpans and dattars, ransacking the house and these unidentified young persons inflicted injuries to the grand parents of the complainant. They also took away the licenced revolver of his grand father. They entered the house of the complainant with the intention of committing robbery. The complainant made a telephone call to Paramjit Singh, his uncle in the brotherhood, who brought a vehicle and took him and his grand parents to Civil Hospital, Kapurthala. On receipt of information in writing from Civil Crl.Appeal No.288-DB of 2007 -3- ....
Hospital, Kapurthala about the admission of three injured persons, Parminder Singh, A.S.I. went there on 26.9.2003 itself. He moved an application seeking the opinion of the doctor as to whether Ravinderpal Singh was fit to make a statement or not. The doctor had opined Ravinderpal Singh to be fit to make statement. His statement Exhibit PY was accordingly recorded by Parminder Singh, A.S.I. Endorsement Exhibit PY/B was made thereon and was sent to the police station on which a case was registered by Ram Sarup, A.S.I. Parminder Singh, A.S.I. then went to the place of occurrence. He found a number of persons present there. He inspected the spot and prepared a rough site plan thereof. He found a pillow, a bed sheet and a chuni stained with blood lying at the place where Pritam Kaur was sleeping. These articles were given the shape of a parcel and sealed with the seal "PS". They were taken into possession by way of a recovery memo. From the other room, where Ravinderpal Singh was sleeping, a pillow stained with blood was lifted. It was given the shape of a parcel and sealed with the seal "PS". Then Parminder Singh, A.S.I. went to the room where Nazar Singh was sleeping. An unstitched cloth stained with blood was lifted therefrom. It was also given the shape of a parcel and was sealed with the same seal. It was taken into possession by way of a recovery memo. The dog squad was then brought into action in search of the accused. A blood stained Crl.Appeal No.288-DB of 2007 -4- ....
cloth which was torn, was found at some distance from the place of occurrence. The same was also given the shape of a parcel and was sealed with the seal "PS".
On 29.9.2003, a telephone call was received from Vasal Hospital, Jalandhar that Pritam Kaur had died. Parminder Sinh, A.S.I. went to the hospital and prepared inquest report. The dead body was identified by Naginder Singh and Kala Singh and their statements were recorded. The dead body was handed over to H.C. Pargat Singh for getting post mortem examination conducted on the same at Civil Hospital, Kapurthala. After post mortem examination, the clothes of the deceased were brought to him by H.C.Pargat Singh which were given the shape of a parcel and were sealed with the seal "PS". They were taken into possession by way of a recovery memo. On return to the police station, the case property was handed over to the M.H.C. On 1.10.2003, Nazar Singh also died at Vasal Hospital, Jalandhar. Inquest proceedings on his death were conducted and the post mortem on his dead body was got conducted.
On 11.3.2005, the investigation of the case came to Jagir Singh, S.I. On that day, he received production warrants of accused Faquir, Surti, Sanyasi, Birju, Balkar and Makhan. On the basis of production warrants, he obtained the custody of these persons from Central Jail, Ludhiana where they had been lodged in connection with Crl.Appeal No.288-DB of 2007 -5- ....
some other case. He brought them to Kapurthala and producing them before the Magistrate, obtained permission to arrest them. Thereafter, they were remanded to the custody of the police by the Magistrate. They were interrogated on 12.3.2005. Faquir, accused was interrogated in the presence of Jarnail Singh, ex-Sarpanch of village Kadupur. The other accused were interrogated on 12.3.2005. On 14.3.2005, they were again interrogated. Faquir, accused disclosed having concealed a gold ring after putting the same in a plastic tin on the north western corner of the wall of the Electricity Board Sub Station in the area of Chohla Sahib, District Amritsar and that he could get the same recovered. His disclosure statement was recorded which was thumb marked by him and attested by the witnesses. Surti, accused was then interrogated. He disclosed having kept concealed a pair of gold ear rings in a tin container of shoe polish on the eastern corner of Primary School, Chohla Sahib, District Amritsar. He offered to get the same recovered. His disclosure statement was also recorded which was thumb marked by the accused and attested by the witnesses. Sanyasi, accused was then interrogated. He disclosed having kept concealed a lady ring in a a tin container of shoe polish near the western wall of Veterinary Hospital, near Grain Market, Chohla Sahib, District Amritsar. He also offered to get the same recovered. His statement was recorded which was thumb marked by Crl.Appeal No.288-DB of 2007 -6- ....
him and attested by the witnesses. Birju, accused was then interrogated. He disclosed having kept concealed a wrist watch, Quartz make, by putting the same in a plastic tin near the northern wall of the cremation ground near Grain Market, Chohla Sahib, District Amritsar. He offered to get the same recovered. His disclosure statement was recorded. On the same day, Balkar, accused was also interrogated. He disclosed having kept concealed a gold ring in a plastic tin near the western wall of the shops of the grain market. He offered to get the same recovered. His disclosure statement was also recorded which was thumb marked by him and attested by the witnesses. Makhan, accused was then interrogated. He disclosed having kept concealed a bag of black colour containing two passports and one card of military canteen as also a lady watch by wrapping the same in a glazed paper near the eastern wall of Grain market, Chohla Sahib, District Amritsar. He also offered to get the same recovered. His disclosure statement was also recorded which was thumb marked by him and attested by the witnesses. Thereafter, the accused led the police party to the respective places of concealment of various articles and got them recovered which were given the shape of parcels and sealed with the seal "JS". They were taken into possession by way of separate recovery memos.
On 16.3.2005, Surti alias Victor, accused was interrogated Crl.Appeal No.288-DB of 2007 -7- ....
and he made a disclosure statement to the effect that he had kept concealed six iron rods near the ganda nala on Kanjli road of which he alone had the knowledge and that he could get the same recovered. His disclosure statement was recorded which was thumb marked by him and attested by the witnesses. The accused then led the police party to the place of concealment of the iron rods and got them recovered. The iron rods were taken into possession. Rough site plans of the places of recovery were prepared. The statements of the witnesses were recorded.
On the direction of the Illaqa Magistrate given on the request of the accused for participating in the identification parade, Jagir Singh, S.I. made an application to Naib Tehsildar -cum- Executive Magistrate, Kapurthala for holding the identification parade. Thereupon, the Naib Tehsildar asked the Superintendent, District Jail, Kapurthala to fix the time and date for holding the parade. The Superintendent, District Jail, Kapurthala fixed the date of 22.3.2005 for the parade. On 22.3.2005, the complainant was taken to District Jail, Kapurthala. The Superintendent, District Jail, Kapurthala summoned the accused to his office when the complainant was also present there. The accused were brought there with muffled faces. They, however, refused to participate in the identification parade. Their statements were recorded.
Crl.Appeal No.288-DB of 2007 -8- ....
On 12.4.2005, Makhan and Shallu alias Raju, accused were brought on production warrants from Central Jail, Ludhiana and were produced before the Illaqa Magistrate. They were arrested on permission from the Illaqa Magistrate. They were asked if they wanted to participate in the identification parade. They refused to do so. Their statements were accordingly recorded. On 15.4.2005, Makhan, accused was interrogated. He disclosed having kept concealed a ring wrapped in a container of shoe polish on the northern corner of Dhobi Ghat on Amrtisar road in the area of Kapurthala. He offered to get the same recovered. His disclosure statement was recorded which was thumb marked by him and attested by the witnesses. Thereafter, Shallu, accused was interrogated. He disclosed that he had kept concealed a gold ring in a shoe polish container on the bank of ganda nala in front of Dhobi Ghat, Amritsar Road, Kapurthala. He offered to get the same recovered. His disclosure statement was recorded which was thumb marked by him and attested by the witnesses. The two accused then led the police party to the places of concealment of the ornaments and got them recovered. The recovered ornaments were taken into possession by converting them into sealed parcels. Site plans of the places of recovery were prepared and the statements of the witnesses were recorded. Reaching the police station, the case property was deposited Crl.Appeal No.288-DB of 2007 -9- ....
with the M.H.C. with seals intact. On completion of other formalities of the investigation, challan against the accused was prepared and present in the court.
Charge was framed against the accused for an offence punishable under sections 148, 302 read with section 149, 460, 396, 411 and 412 of the I.P.C. by learned Sessions Judge, Kapurthala vide order dated 30.8.2005. The accused pleaded not guilty to the charge and claimed trial.
The prosecution examined twelve witnesses in all at the trial. The evidence of the prosecution thereafter came to a close. The accused were then examined in terms of section 313 of the Cr.P.C. with a view to give opportunity to them to explain the incriminating prosecution evidence coming against them. They have denied the truth of the same when put to them in the shape of questions. They have claimed themselves to be innocent and to have not committed any offence. They have added that they have been falsely implicated in this case.
Hearing learned Public Prosecutor for the State and learned counsel for the defence, learned trial court has held the appellants guilty for the offence punishable under section 302 of the I.P.C. vide the judgment dated 1.2.2007. Learned trial court has, however, acquitted Birju alias Deena, Balkar alias Duri, Makhani Nath Crl.Appeal No.288-DB of 2007 -10- ....
alias Boota, Makhan and Shallu alias Raju by giving them benefit of doubt. Learned trial court had also acquitted Faquir alias Hari Ram, Surti alias Matel and Sanyasi alias Deepak of the charge framed against them for the offence punishable under sections 148, 460, 396, 411, 412 of the I.P.C. Hearing on quantum of sentence was given on the same day and the sentence detailed as above has been awarded to the appellants.
Aggrieved by the judgment of their conviction and the order of sentence, the appellants have brought this appeal.
We have heard Shri P.S.Punia, learned amicus curiae for the appellants and Shri K.D.S.Sidhu, learned Additional Advocate General, Punjab for the respondent-State. We have gone through the record of the case carefully.
Bringing to our notice the salient facts of this case, learned amicus curiae has submitted that none of the assailants was named in the F.I.R. According to him, the appellants were arrested in this case on 11.3.2005 after bringing them on production warrants from Central Jail, Ludhiana. According to him, after being permitted to arrest the appellants, the police sought their custody which was allowed and they were interrogated. According to him, they are stated to have suffered disclosure statements in pursuance of which some gold ornaments have been recovered. He has submitted that they were Crl.Appeal No.288-DB of 2007 -11- ....
produced again before the Magistrate on 17.3.2005 and this time, they were produced with muffled faces. He has submitted that on this occasion, the appellants expressed their willingness to join the test identification parade. He has submitted that on 22.3.2005, Kirandeep Singh, Naib Tehsildar -cum- Executive Magistrate, Kapurthala reached District Jail, Kapurthala where the appellants were produced by the Superintendent, District Jail, Kapurthala. According to him, the complainant was also present there and as no one else was joined in the identification parade, the appellants had rightly refused to join the same.
Learned amicus curiae has submitted that the F.I.R. which is silent about the identity of the culprits, in as much as, it does not speak of the physical features of the culprits except for the fact that they were of the age of 19/20 years, no details of the articles/ ornaments taken by the culprits have also been given in the F.I.R. He has submitted that some ornaments had been recovered from the appellants, but the investigating officer did not care to arrange for the identification proceedings of those ornaments before the complainant. He has further submitted that recovery had been effected about 1/ 1- 1/2 years after the occurrence. He has submitted that there was no statement on the part of the complainant which could be used to identify the said ornaments to belong to the complainant or to his Crl.Appeal No.288-DB of 2007 -12- ....
grand parents. He has submitted that the passports of the deceased had also been recovered, but the same had been recovered from the possession of Makhani Nath, who has been acquitted by learned trial court. According to him, it was the passports which could be proved to have been taken during the occurrence from the house of the complainant, but the said recovery has not been effected at the instance of the appellants.
Learned amicus curiae for the appellants has further submitted that the complainant has made a number of material improvements while appearing in the witness box over the case set up by him in the F.I.R. He has submitted that although refusal on the part of the appellants to join identification parade was justified, yet if it is believed that they had unreasonably refused to join the identification parade, adverse inference that could be available against them is not a very strong piece of evidence and the same would become unreliable once the age of the appellants is taken into consideration. He has submitted that identification of the appellants in the court room by the complainant which has been relied upon by learned trial court would also be of no use because the gap in the age of the appellants and the persons described in the F.I.R. is so wide that it cannot be believed that the appellants were the persons who had committed the offence. He has submitted that Faquir alias Hari Ram is Crl.Appeal No.288-DB of 2007 -13- ....
aged 45 years, Surti alias Matel is aged 50 years and Sanyasi alias Deepak is aged 26 years. According to him, Faquir and Surti can not fit in the description of the three persons, who are alleged to have entered the house of the complainant and had hit his grand parents.
Learned Additional Advocate General has submitted, on the other hand, that the appellants were, though called to the office of the Superintendent, District Jail, Kapurthala, in the presence of the complainant, but they were brought there with muffled faces. According to him, this can not give any reason to those persons to refuse to join the parade. He has submitted that for this unreasonable refusal on the part of these persons to join the identification parade, adverse inference has rightly been drawn by learned trial court. He has submitted that the complainant has correctly identified the three appellants in the court and the discrepancy regarding the age of the appellants is of no consequence. He has also submitted that the improvements alleged to have been made by the complainant while appearing in the witness box over the case set up in the F.I.R. are also not material and on account of those improvements, the case cannot be held doubtful.
The prime question for determination in this case is regarding the identity of the appellants as culprits. The culprits were not named in the F.I.R. and admittedly, the complainant was not Crl.Appeal No.288-DB of 2007 -14- ....
familiar with them previously. The occurrence took place in the night intervening 25th and 26th of September,2003. The appellants had been arrested in this case on 11.3.2005 as they had been arrested in some other case and were lodged in Central Jail, Ludhiana and their presence was procured by production warrants. The police, to begin with, did not seek judicial custody of the appellants for the purpose of putting them to test identification parade. Their police custody was rather sought and was granted. They were interrogated, are said to have suffered disclosure statements in pursuance of which some gold ornaments have been recovered.
Recovery of gold ornaments could be a material piece of evidence with the prosecution to fix the identity of the appellants as culprits. However, the recovery being of common ornaments, it was necessary to establish that the recovered ornaments had been taken away during the course of occurrence from the house of the complainant. Unless it is proved, the recovered ornaments have no capability of supporting the charge of dacoity or murder. The police did not put the recovered ornaments before the complainant for the purpose of identification and consequent establishment of the identity of those ornaments to have been taken away during the course of occurrence from the house of the complainant. So, this piece of evidence is not available to the prosecution for fixing the identity of Crl.Appeal No.288-DB of 2007 -15- ....
the appellants as culprits.
On 17.3.2005, the appellants were again produced before the Magistrate and this time, they were produced with muffled faces. When the appellants were asked if they were ready and willing to join the test identification parade, they expressed their willingness to join the same. On 22.3.2005, this test identification parade was arranged at District Jail, Kapurthala. For this purpose, Kirandeep Singh, Naib Tehsildar- cum- Executive Magistrate, Kapurthala was contacted and he reached District Jail, Kapurthala. When Kirandeep Singh, Naib Tehsildar called the appellants and others involved in this case to the office of the Superintendent, District Jail, Kapurthala, they had come with muffled faces, but they refused to join the test identification parade. At that time, the complainant, who was to identify them, was present in the office of the Superintendent, District Jail, Kapurthala. Though, the appellants were there with their faces muffled, yet, the complainant should not have been there because he could take note of other features, clothing and any marks on hands etc. from which he could identify the culprits later at the identification parade. Therefore, the appellants were justified in refusing to join the parade.
Even if it is taken that the refusal on the part of the appellants to participate in the test identification parade was unreasonable and an adverse inference is available against them, the Crl.Appeal No.288-DB of 2007 -16- ....
said adverse inference by itself cannot prove the charge against the appellants. It has come in the F.I.R. Exhibit PY/2 based on the statement of Ravinderpal Singh, complainant that three persons, who entered the room with weapons and were searching household articles here and there, were aged about 19/20 years. This is the only statement of the complainant regarding the identity of the culprits. No physical features of the culprits have been stated by him in the F.I.R. Two out of the three appellants before us are of the age of 45 and 50 years. Faquir alias Hari Ram is shown aged 45 years by the police and Surti alias Metal is shown aged 50 years. The gap in the age of culprits as appeared in the F.I.R. and that of the two appellants is so wide that this gap cannot be bridged by any argument. The two, therefore, can not fit in the description of the culprits available in the F.I.R.
The passports of the deceased were such documents which required no other evidence to relate them to the deceased. They have, however, been recovered from Makhani Nath, an accused, who has been acquitted by learned trial court. The recovery of passports is, therefore, not available to the prosecution against the appellants as an incriminating piece of evidence.
A careful comparison of the contents of the F.I.R. with the statement of the complainant, Ravinderpal Singh , PW11 reveals some vital improvements to have been made by him at the trial over the case Crl.Appeal No.288-DB of 2007 -17- ....
set up earlier. The first is the aspect of his waking up. In the F.I.R. Exhibit PY/2, he has stated that at about 1.30 O'clock in the night time, some unknown persons had struck something on his head on account of which he woke up. Appearing as PW11, he does not say that he woke up on being hit by some unknown person with some object on his head. Here, he says that at about 1.30 in the night of 26.9.2003, he felt pain and got up. Be the statement as it is, he does not speak of presence of any one with him in his room. If he would have got up and he either felt pain or felt some one to have hit him on his head, he could have noticed the presence of that person. No one was said to be present in his room and he noticed only three persons, who were in action around the cot of his grand mother.
When he noticed three persons around the cot of his grand mother, then there would come the aspect of his reaction. He is an able-bodied person, who claims his age to be 21/22 years. He was not a child. He had spent some time in England and had returned six months earlier to this occurrence therefrom. The F.I.R. is silent in this regard. He tries to improve upon this case while appearing as PW11. He has stated that when he saw three persons around the cot of his grand mother, he felt that those persons were unknown and he picked up a kirpan lying in his room. He has further stated that he came out of his bed room with that kirpan. He falls silent about his action Crl.Appeal No.288-DB of 2007 -18- ....
thereafter. He was armed with a kirpan. He noticed some unknown persons in his house and he came out of the room, but he does not say that he did anything thereafter. So, although he tried to improve upon the case, but his action is not natural. The natural action would have been that he tried to attack the unidentified persons and suffered injuries in the scuffle, which he did not do.
Though, he was silent about his attacking the intruders, he was silent even about any injury caused to him by those persons in the F.I.R. In the F.I.R., he has only stated that those unidentified persons caused many injuries to his grand parents. Appearing as PW11, he introduced a different story. He has stated that one of those persons caused an injury to him near his right ear with shorter wooden arm of a cot (sheru). Now, this aspect is again an improvement on a very vital aspect of the case. Even the introduction of sheru is an improvement because he has stated that the three persons seen by him in his house were armed with kirpans and dattars and there was no reason for them to have used a sheru on the complainant.
In the background of the above discussed circumstances, identification of the appellants by the complainant as culprits at the trial would not be believable evidence to hold them guilty. Therefore, we find the prosecution to have miserably failed to bring home the guilt of the appellants for any offence. Finding the judgment of Crl.Appeal No.288-DB of 2007 -19- ....
conviction and the order of sentence to be unsustainable on the evidence led by the prosecution in this case, we accept the appeal and setting aside the judgment of conviction and order of sentence dated 1.2.2007, we acquit the appellants of the charge framed against them.
(HEMANT GUPTA ) ( VIJENDER SINGH MALIK)
JUDGE JUDGE
August 4,2011
"SCM"