Punjab-Haryana High Court
Joginder Singh vs State Of Haryana on 1 May, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. 896-DB of 2005 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Criminal Appeal No. 896-DB of 2005
Date of Decision: 1.5.2012
Joginder Singh .........Appellant
Vs.
State of Haryana .......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. Karan Jund, Advocate for
Mr. Surya Parkash, Advocate
for the appellant.
Mr. Pardeep Singh Poonia, Addl. A.G., Haryana.
.....
SABINA, J.
Appellant has preferred this appeal challenging his conviction and sentence under Section 302, 323/34 of the Indian Penal Code ('IPC' for short) as ordered by the trial court vide judgment/order dated 3.12.2005.
On 16.1.2004, Assistant Sub Inspector Subhash Chand reached Escorts Hospital, Faridabad on information qua admission of injured Gajender, Amit Sharma and Jai Parkash in the said hospital. An application was moved by Assistant Sub Inspector Subhash Chand qua opinion regarding fitness of injured Amit Sharma and Jai Parkash to make the statements. The doctor declared them unfit to make the statements. Injured Gajender was declared fit to make a statement on an application moved by Assistant Sub Inspector Subhash Chand seeking opinion qua his fitness. Thereafter, he recorded the statement of Crl. Appeal No. 896-DB of 2005 - 2- complainant Gajender.
Complainant Gajender stated in his statement that he had gone along with Jai Parkash and Udaibir in a jeep driven by Pappi for checking the cable line as he had received a message from Ekta Nagar and Dayal Nagar that their cable line was disturbed. When he had reached NTPC Chowk near railway bridge, he noticed that two persons were installing a new cable line after removing their line. On inquiry, the said persons disclosed that they were working under Manoj Bhardwaj and they should talk to him. Thereafter, the said boys went towards Palla Power House. The complainant along with his companion started reconnecting his cable line. At that time Amit, who was doing the business of finance, had also reached the spot. At about 8.00 P.M., 8-10 persons came from the side of NTPC Chowk. Out of the said persons, Joginder was armed with an iron rod, Satish was armed with a sword, Manoj was armed with a stick and Vinod was armed with an iron rod. The other persons were armed with sticks. When the said persons reached near them, they said that the owner of the cable network be taught a lesson. Satish gave a sword blow on the head of Amit. Vinod gave iron rod blow on the head of Jai Parkash. Out of fear, he (complainant) started to run away and Satish gave a sword blow on his head. Thereafter, he fled away from the spot along with Udaibir and the driver. Then all these persons i.e. Manoj and Joginder along with their companions inflicted injuries on the person of Amit and Jai Parkash with sticks, iron rods and sword. Thinking that Amit and Jai Parkash had died, the assailants left the spot. He made a phone call from his phone and called his brother Devender and Jaivinder Singh. The said persons took Crl. Appeal No. 896-DB of 2005 - 3- them to the hospital for treatment.
On the basis of the statement of the complainant, formal FIR No. 21 dated 16.1.2004 was registered at Police Station Sarai Khawaja District Faridabad under Section 148, 149, 323, 324, 307 IPC.
Thereafter, Assistant Sub Inspector Subhash Chand inspected the spot and prepared rough site plan. He lifted blood stained earth from the spot. He also lifted blood stained stone and brick from the spot. Photographer was called to the spot and the spot was photographed by him.
On 17.1.2004, Assistant Sub Inspector Subhash Chand arrested accused Joginder and Narotam.
On 18.1.2004, Assistant Sub Inspector Subhash Chand reached the hospital on receipt of information qua death of Amit. He prepared inquest report qua deceased Amit and sent the dead body for post mortem examination.
Sub Inspector Rishi Pal again sought opinion from the doctor qua fitness of injured Jai Parkash on 18.1.2004. The doctor declared the patient unfit to make a statement. On receipt of information qua death of Jai Parkash on 20.1.2004, Sub Inspector Rishi Pal reached the Escorts Hospital, Faridabad and prepared inquest report qua the deceased. Thereafter, the dead body was sent for post mortem examination.
On 20.1.2004, during interrogation, accused Narotam suffered a disclosure statement and on the basis of the same, he got recovered the stick from the disclosed place. Accused Joginder suffered a disclosure statement during interrogation and got recovered the iron rod from the disclosed place.
On 23.1.2004, accused Ajay and Shyam were Crl. Appeal No. 896-DB of 2005 - 4- arrested. During interrogation, they suffered disclosure statements and got recovered sticks from the disclosed places.
On 28.1.2004, Sub Inspector Jai Parkash formally arrested accused Satish and Vinod. During interrogation, accused Satish suffered a disclosure statement on 2.2.2004 and got recovered the sword from the disclosed place. Accused Vinod also suffered a disclosure statement during interrogation and got recovered the iron rod from the disclosed place.
On 7.2.2004, accused Prem Chand was arrested and during interrogation he suffered a disclosure statement on 9.2.2004 and got recovered the stick from the disclosed place.
On 17.3.2004, accused Sonu and Dharmender were arrested. During interrogation, the said accused suffered disclosure statements and got recovered sticks from the disclosed places.
After completion of investigation and necessary formalities challan was presented against the accused except accused Manoj as he was declared a proclaimed offender.
Charge was framed against the accused under Section 148, 302, 324, 323/149 IPC on 21.7.2004.
During trial, four accused namely Shyam, Satish, Vinod and Dharmender escaped from custody while they were being transported from Faridabad to District Jail Bhondsi on 7.2.2005.
Accused Shyam surrendered before the trial court on 14.2.2005 and faced the trial.
In order to prove its case, prosecution examined 15 witnesses during trial.
After the close of prosecution evidence, appellant Crl. Appeal No. 896-DB of 2005 - 5- Joginder Singh when examined under Section 313 of the Code of Criminal Procedure, 1973 pleaded as under:-
"I am chronic patient of asthma and has been taking treatment for it since long and that I was at Agra from 13.1.2004 to 16.1.2004 and has been taking treatment at Agra from various doctors from 13.1.2004 to 16.1.2004 and was confined to bed at Agra and that on 15.1.2004 I had deposited cash for taking registration certificate of Maruti Van No. UP- 80/2175 which was issued on 16.1.2004 and on the return to Agra on 17.1.2004 I had also sent application to higher authorities of the police in this respect."
Accused examined 10 witnesses in their defence. The trial court vide impugned judgment dated 3.12.2005 convicted appellant Joginder Singh for commission of offence under Section 302, 323/34 IPC. The other five accused namely Narotam Dass Sharma, Ajay, Shyam, Prem Chand and Sonu were acquitted of the charges framed against them.
Learned counsel for the appellant has submitted that prosecution had miserably failed to prove its case. The complainant had been later on introduced as a witness in this case. No specific role was attributed to the appellant at the time of commission of crime.
Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. The present case rests on eye witness account and all the eye witnesses had duly supported the prosecution case. The Crl. Appeal No. 896-DB of 2005 - 6- ocular version was duly corroborated by medical evidence.
PW-5 Dr. Rakesh Singh deposed that on 16.1.2004 at 8.30 P.M., he had medico legally examined Jai Parkash brought by Jaivinder and had found following injuries on his person:-
1. Bruise with lacerated wound 1 cm x 0.5 cm left frontal region with ragged margins. Bleeding present.
2. Left black eye present.
3. Left ear bleeding present.
4. Bleeding from the left nostril present.
5. Abrasion with lacerated wound 3 inches x 1 cm left hand mid thinar region with ragged margins.
Bleeding present.
In his opinion, the injuries had been caused by a blunt weapon.
He further deposed that on the same day he had medico legally examined Amit Sharma who had been brought by Jaivinder and had found following injuries on his person:-
1. Incised wound 4" x 0.5 cm bony deep mid parietal region posterior aspect, bleeding profusely.
2. Punctured wound left frontal region bleeding present.
3. Incised wound 1 cm x 0.5 cm left pinna mid aspect, bleeding present.
4. Bleeding present left ear.
5. Bleeding present bilateral nostril.
In his opinion, injuries No. 1 and 3 had been caused by a sharp edged weapon whereas injuries No. 2, 4 and 5 had Crl. Appeal No. 896-DB of 2005 - 7- been caused by a blunt weapon.
He further deposed that on the same day he had also examined Gajender who had been brought by Jaivinder and had found following injury on his person:-
1. Incised wound 3"x0.5 cm bony deep mid occipital region with incised margins, bleeding present.
In his opinion, the injury had been caused by a sharp edged weapon.
PW-11 Dr. Beena Sharma deposed that on 18.1.2004, she had conducted post mortem examination on the dead body of Amit and had found following injuries on his person:-
1. Stitched wound present on left parieto temporal region.
2. One stitched wound on right occipital region 6 inches long.
3. One stitched wound on left eye brow.
4. One stitched wound left eye lid.
On opening the skull there was fracture of left parietal temoral bone. Subdural haemotoma present. All brain was aedcematus. Subcutaneous haemotoma present on right and left temporal region and occipital region.
5. Abrasion present on right shoulder 4 cm x 3 cm.
6. Abrasion present over left eye 3 x 2 cm in size. Walls, ribs and cartilages-II, III ribs of left side fractured. Right side normal. Left side pleura torn. Right side pleura normal. Right lung was normal. Left lung-laceration was present on middle lobe. Liver, Crl. Appeal No. 896-DB of 2005 - 8- spleen, kidneys were pale and rest of the organs were normal. Stomach was empty. The small intestines contained kinds and chyle. The large intestines contained faecal matter and gases.
In her opinion, the cause of death was head injury which was ante mortem in nature and sufficient to cause death in the ordinary course of nature.
PW-8 Dr. A.S.Ahlawat deposed that on 20.1.2004, he had conducted post mortem examination on the dead body of Jai Parkash and had found following injuries on his person:-
1. S shaped stitched wound over left temporal, frontal and right parietal region of scalp extending from right parietal to left temporal region.
2. Contusion with partially healed wound over left side of forehead about 9 cm x 8 cm in size with two stitches present.
3. Blackening was present around both eyes moreso around left eye.
On dissection large haemotoma was present under the skin. Crainiotomy jincision present over left side of forehead with a piece of wound about 7 cm x 6 cm with fracture over anterior part was present. On opening the skull clotted blood was present. On incision of dura matter, subdural haemotoma was present. Other brain membrance and brain tissue was lacerated in the frontal lobe on left side.
4. Lacerated wound 4 cm x 1 cm over palm of left hand was present. Thorax walls, ribs and Crl. Appeal No. 896-DB of 2005 - 9- cartilages, plurae, larynx and treachea, both lungs, heart and large blood vessels were healthy. Rest of the organs were also healthy. Stomach and small intestines were empty. Large intestines contained faecal matter and gases.
In his opinion, the cause of death was haemorrhage, shock and injury to vital organ i.e. brain and the said injury was ante mortem in nature and sufficient to cause death in the ordinary course of nature.
The present case rests on eye witness account. The complainant while appearing in the witness box as PW-1 has deposed as per the contents of the FIR. The complainant had also suffered injury in the occurrence and had been taken by Jaivinder to the hospital along with other injured Amit and Jai Parkash. Hence, the presence of the complainant at the spot cannot be doubted as he had himself suffered injury in the occurrence. The statement of the complainant qua the manner of occurrence is duly corroborated by the other eye witness PW-2 Udaibir. The complainant deposed that Joginder was armed with an iron rod at the time of occurrence. In his cross examination, the complainant has deposed that he knew appellant Joginder for the last 1½ years prior to the occurrence. PW-2 has also deposed in his cross examination that appellant Joginder had been visiting their cable shop. Thus, both the eye witnesses could have identified appellant Joginder because they knew him prior to the occurrence. As per the eye witness account, appellant Joginder had come to the spot along with other assailants and had participated in the crime. Appellant Joginder Crl. Appeal No. 896-DB of 2005 - 10- had caused injuries on the person of the deceased Amit and Jai Parkash. As per PW-5 Dr. Rakesh Singh, injuries on the person of Jai Parkash had been caused with blunt weapon. Injuries No. 2, 4 and 5 had been caused on the person of Amit Sharma by a blunt weapon. PW-5 in his cross examination denied the suggestion that injuries No. 3 and 4 on the person of Jai Parkash could be result of injury No.1. There was no external mark of injury qua injuries No. 3 and 4. He also denied the suggestion that injuries No. 4 and 5 on the person of Amit Sharma could be possible as a result of injuries No. 1 to 3. There was no external mark of injury qua injuries No. 4 and 5. Injury No. 4 could be possible as a result of injury No.3. Thus, the deceased had also suffered injuries with the blunt weapon. As per the ocular version, appellant was armed with a blunt weapon i.e. iron rod at the time of occurrence. In these circumstances, we are of the considered opinion that the eye witness account is duly corroborated by medical evidence.
After his arrest, during interrogation, appellant had got recovered the iron rod from the disclosed place. As per the report of Forensic Science Laboratory (Ex. PU/1), the iron, got recovered by the appellant, was stained with blood.
Appellant Joginder had taken the plea of alibi in his defence and had examined witnesses in this regard. The Apex Court in Binay Kumar Singh vs. State of Bihar, 1997 AIR(SC) 322, regarding the plea of alibi held as under:-
"We must bear in mind that alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence Crl. Appeal No. 896-DB of 2005 - 11- recognized in S.11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context:
`The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
The Latin word alibi means "elsewhere" and that word issued for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence Crl. Appeal No. 896-DB of 2005 - 12- has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandet v. State of Uttar Pradesh, (1981) 2 SCC 166:
AIR 1981 SC 911; State of Mahrashtra v. Narsingrao Gangaram Pimple, AIR 1984 SC 63)."
DW-1 Mukesh Sharma deposed that name of Joginder Singh was mentioned at Serial No. 7699 in the register brought by him on 15.1.2004. However, in his cross examination, he deposed that the father's name of the patient was not mentioned in the register. The address of the patient was also not mentioned in the register. In these circumstances, no reliance can be placed on the testimony of DW-1. Further, as per this witness, patient Joginder Singh had appeared as an outdoor patient on 15.1.2004. The occurrence in the present case has Crl. Appeal No. 896-DB of 2005 - 13- taken place on 16.1.2004.
Mukesh Sharma was again examined as DW-2 and he proved the slip issued by the doctor Ex. D2.
We have carefully gone through Ex.D2. In the said slip, the name of the patient is mentioned as Joginder Singh but his parentage or address is not mentioned. Even otherwise, the said slip relates to 15.1.2004 as an outdoor patient. It does not reveal that the appellant had been admitted in the hospital for treatment.
DW-3 Girjesh Kumar Mishra proved the blood test report of the appellant dated 14.1.2004. The said report also fails to advance the case of the appellant as there is no further medical record on file to establish that the appellant had been advised rest or had been admitted in the hospital for treatment which could lead to the presumption that the appellant was not present at the spot on 16.1.2004.
DW-4 has deposed that vehicle No. UP-80-AE/2175 was entered in the name of Joginder Singh son of Mahinder Singh. The party must have deposited ` 5440/- on 16.1.2004 towards registration fee. In his cross examination, he deposed that he could not tell whether Joginder Singh had himself deposited the fee or somebody else had deposited the same on his behalf. In these circumstances, DW-4 also fails to advance the case of the appellant.
DW-8 Dr. Arvind Jain proved the prescription slip Ex. D5. As per this witness, on 16.1.2004 appellant had visited him and he had advised him hospitalization. In his cross examination he deposed that the appellant was resident of Faridabad but his brother was residing at Agra. The said witness Crl. Appeal No. 896-DB of 2005 - 14- is a private practitioner at Agra. In these circumstances, no reliance can be placed on the testimony of this witness as the appellant who was living with his family at Faridabad had no cause to go to Agra for treatment and that also from a private practitioner. Further, there is no medical record on the file qua hospitalization of the appellant on 16.1.2004 to establish that he was not present at the spot at the time of occurrence.
DW-9 Laxmi Narain deposed that on 17.1.2004, he had taken Joginder Singh from Agra to Faridabad and he had charged ` 1800/- as fare of the ambulance vide receipt Ex. D6. The said witness in his cross examination deposed that he had not brought any documentary evidence qua his employment with G.G.Medical Institute. The name of Joginder Singh was not mentioned in receipt (Ex. D6). In these circumstances, no reliance can be placed on the testimony of this witness.
DW-10 Rajender Singh deposed that appellant Joginder was his real brother. He had taken his brother to Agra on 13.1.2004 as he was not feeling well. The appellant was admitted in Upadhaya Hospital on 16.1.2004 and was discharged on 17.1.2004. In his cross examination he deposed that he had taken Joginder to Agra by bus. It appears that the said witness has deposed in favour of appellant Joginder being his brother. The said witness has not proved on record any document showing the admission of the appellant in Upadhaya Hospital on 16.1.2004.
Thus, the plea of alibi set-up by the appellant is not established on record. Rather, the prosecution has been successful in proving its case against the appellant. The eye witness account is duly corroborated by medical evidence. In Crl. Appeal No. 896-DB of 2005 - 15- these circumstances, learned trial court had rightly convicted and sentenced the appellant for commission of offence under Section 302, 323/34 IPC vide the impugned judgment/order.
No ground for interference is made out.
Dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
May 1, 2012
Gurpreet