Punjab-Haryana High Court
Raju @ Kala vs State Of Haryana on 29 November, 2013
Author: Hemant Gupta
Bench: Hemant Gupta
CRA No.D-1018-DB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-1018-DB of 2009(O&M)
Date of decision: 29.11.2013
Raju @ Kala .....Appellant
VERSUS
State of Haryana .....Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. R.D. Yadav, Advocate for the appellant.
Mr. Pardeep Singh Poonia, Additional Advocate General,
Haryana.
*******
HEMANT GUPTA, J.
The present appeal is directed against the judgment dated 07.11.2009 passed by the learned Additional Sessions Judge, Rewari convicting the appellant for an offence under Section 302 Indian Penal Code (for short 'IPC') and the order dated 10.11.2009 sentencing the appellant to undergo life imprisonment and to pay a fine of `5000/-. In default of payment of fine, the appellant was ordered to further undergo rigorous imprisonment for a period of one year.
The prosecution case was initiated on the statement of Ravi Shankar son of Makhan Lal, brother of deceased- Subhash @ Tunnu, made to Om Parkash, SHO, Police Station Rampura at about 10.20 AM, on the basis of which a ruqa was sent to police station. An FIR Ex.PE/2 was lodged Diwakar Gulati 2013.12.04 12:14 I attest to the accuracy and integrity of this document CRA No.D-1018-DB of 2009 2 at 10:30 AM on the basis of said ruqa. He has, inter alia, stated that his brother Subhash @ Tunnu used to do shoe-making work and was a habitual drinker. On 09.10.2008 at about 09:30 PM he was sitting in the retail shop of Anil in Kuthbanda basti when his nephews Parmod son of Ashok and Prakash son of Lal Chand were seen with his brother Subhash, who was under the influence of liquor. His nephews went to their respective houses after leaving his brother to his house. He saw his brother crossing Kuthbanda basti going towards the retail shop of Hardass. He reached retail shop of Hardass, when he was sitting on the shop of Anil. After some time, he reached home. Next morning, when he got up at 7:00 AM, then his neighbourers told him that his elder brother Tunnu @ Subhash is lying dead in the vacant plot of Ghoriwala, Kuthbanda basti. He reached the site along with the villagers. He found the dead body of his brother with face towards the ground on the vacant plot of Ghoriwala. He was not wearing any trousers and his underwear was down in the legs. There were blood stains on the head. Blood stained trousers of Tunnu @ Subhash was found in the bushes about 100 yards from the dead body. He expressed doubt that his brother had been killed for unknown reasons.
The Investigating Officer Om Parkash, SHO (PW-14) stated that he took in possession blood stained earth, blood stained brick and trousers. The proceedings under Section 174 of the Code of Criminal Procedure (for short 'Cr.P.C.') were conducted. The postmortem examination was also got conducted. It was on 13.10.2008, Mohar Singh, Panch of village Rampura, produced the appellant before him. He recorded the statement of Mohar Singh and took accused to General Hospital Rewari for his medical examination. The accused suffered a disclosure statement Diwakar Gulati 2013.12.04 12:14 I attest to the accuracy and integrity of this document CRA No.D-1018-DB of 2009 3 Ex.PO and got recovered T-shirt Ex.MO4 which was taken in possession. The accused also got demarcated the place of occurrence. He also prepared scaled site plan of the place of occurrence Ex.PG. On completion of investigations, he submitted his report under Section 173 Cr.P.C.
We have heard learned counsel for the parties and find that the appellant is entitled to benefit of doubt as the prosecution has failed to complete the chain of circumstances against the appellant.
PW-1 Dr. Lal Singh conducted the postmortem examination. He proved his postmortem report Ex.PB. He stated that all the injuries noticed on the dead body except injury No.2 were on the front portion and the possibility of injuries as possible from a fall from a height of more than six feet could not be ruled out. The following injuries were noticed by PW-1 Dr. Lal Singh as per affidavit (Ex. PA ):-
a) A lacerated wound was present over the left side of for head just above the eye brow. Size was 0.75 X 5.5 cm under lying bone was fractured. Clotted blood was present under the skin subcutaneous tissues were damaged.
b) Lacerated wound was present over the right side of parietal region of skull size was 0.75 cm X 6.5 cm under lying bone was fractured. Brain was congested. Membranes torn.
c) Swelling was present over the right side of temporal region size was 8 X 8 cm on dissection under lying bone was normal.
d) Bruise was present over the right knee joint size was 1.5 X 2 cm.
e) Multiple linear laceration were present over the right thigh on anterior aspect size was 02. X 6.5 cm to 02. X 5.5 cm.
f) Multiple abrasion were present over the left thigh size was 0.5 X 0.75 cm to 0.5 X 0.5 cm.
Diwakar Gulati 2013.12.04 12:14 I attest to the accuracy and integrity of this document CRA No.D-1018-DB of 2009 4
g) Lacerated wound was present over the left lower lip size was 0.5 X 1 cm under lying teeth were normal in shape and size.
In evidence before the learned trial Court, the prosecution also examined Ravi Shankar, brother of the deceased as PW-9 and PW-6 Hardass, as a witnesses of last seen. Mohar Singh, the witness of extra judicial confession, was examined as PW-10 but was declared hostile. The prosecution also examined other witnesses of formal nature. The incriminating circumstances against the appellant appearing in the prosecution case were put to him while recording his statement under Section 313 of Cr.P.C. The appellant denied the allegations and asserted that it is a case of false implication. On the basis of evidence, the learned trial Court convicted the present appellant for an offence under Section 302 IPC.
While appearing as a witness, PW-9 Ravi Shankar improved upon the version and deposed that he has seen his brother going towards the shop of Hardass along with 3-4 other persons including the present appellant. He denied having made statement that his brother was under the influence of liquor. He further stated that shop of Anil is at the distance of 60 yards from his house and the shop of Hardass is at a distance of 60 yards from the shop of Anil. He saw his brother with his nephews around 8/9:00 PM. His brother returned after 10 minutes. He saw his brother going towards the shop of Hardass when he was sitting in the shop of Anil. Bhukar, Matallu and Bhoop were also seen at the shop of Hardass. He admitted that in his statement Ex.PE he had stated that some unknown persons killed his brother. He later volunteered that in the evening he remembered that accused along with three persons and his brother were Diwakar Gulati 2013.12.04 12:14 I attest to the accuracy and integrity of this document CRA No.D-1018-DB of 2009 5 present at the shop of Hardass. He admitted that no civil or criminal dispute was pending between his brother and the appellant.
PW-6 Hardass has completely changed the version that what was stated by him in statement under Section 161 Cr.P.C. He stated that the deceased purchased and consumed Pepsi and some nankeen at his shop. Then the deceased left his shop and he closed his shop accompanied by Kala accused as well as Bhoop and Matlu son of Net Ram. In the cross- examination, he stated that he has given the name of all the four persons to police and also the fact that Subhash purchased Pepsi and namkeen and consumed at his shop. He also stated that he told police that the afore-said persons came to his shop. He was confronted with his previous statement under Section 161 Cr.P.C. produced as on record as Ex.DA. In such statement, he has stated that the deceased and the appellant along with other boys were gambling on the occasion of Dushehra. All the boys went to their house on the turn of night at about 10/10:30 PM when he closed his shop. Even at that time, Subhash @ Tunnu and appellant were drinking together.
T-shirt recovered on the basis of disclosure statement was sent for forensic examination. The report Ex.PU of the Forensic Science Laboratory detected blood on T-shirt but the origin of the blood could not detected as the material was found disintegrated.
The evidence of last seen, as deposed by PW-9 Ravi Shankar is a material improvement on what was his first version given to SHO Om Parkash. In the first version, the brother of the deceased has not stated that his brother was with the appellant. On the other hand, the first version of Hardass was that the deceased was with the appellant and both were Diwakar Gulati 2013.12.04 12:14 I attest to the accuracy and integrity of this document CRA No.D-1018-DB of 2009 6 drinking together but the statement is silent that the deceased or the appellant had come to his shop and purchased Pepsi and the namkeen. From the statement of PW-9 Ravi Shankar, it is apparent that the deceased was a drunkard and was in drunkard condition even on 09.10.2008 when his nephews were seen escorting his deceased brother to his home. Once the deceased was escorted back to his home, the story that he has seen his brother going towards the house of Hardass after-wards does not seems to be plausible. Even if that part of the statement is correct but it does not lead to inference that it was the accused, who had committed the offence charged.
Still further, PW-6 Hardass has completely changed his version than given in his previous statement under Section 161 Cr.P.C. The evidence of last seen, even it is believed, is not sufficient to come to a finding that it is the appellant who has committed the crime particularly when PW-9 Ravi Shankar admits that there was no enmity between the deceased and the appellant. The deceased was in drunkard condition. The nature of injuries on the frontal region leads to inference that the deceased could receive such injuries after fall. The condition in which body was found i.e. without trouser shows that it may be on account of his inebriated condition. The last seen evidence is not corroborated in any manner. The t- shirt of the accused have been found to be blood stained but it was not found to be human blood. In the absence of any corroboration, the conviction of the appellant is not sustainable only based on evidence of last seen, which is also of doubtful nature.
Diwakar Gulati 2013.12.04 12:14 I attest to the accuracy and integrity of this document CRA No.D-1018-DB of 2009 7
Consequently, we allow the present appeal, set aside the judgment of conviction and sentence and set at liberty the appellant, if he is not wanted in any other case.
(HEMANT GUPTA)
JUDGE
NOVEMBER 29, 2013 (FATEH DEEP SINGH)
'D. Gulati' JUDGE
Diwakar Gulati
2013.12.04 12:14
I attest to the accuracy and
integrity of this document