Punjab-Haryana High Court
Kirori @ Anoop Singh vs State Of Haryana on 21 November, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
CRA-S No.3172-SB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S No.3172-SB of 2009 (O&M)
Date of decision:21.11.2013
Kirori @ Anoop Singh .... Appellant
versus
State of Haryana .... Respondent
CORAM: HON'BLE MS. JUSTICE ANITA CHAUDHRY
Present: Mr. Balraj Gujjar, Advocate
for the appellant.
Mr. Dhruv Dayal, DAG, Haryana.
*****
1. Whether Reporters of local papers 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?
Anita Chaudhry, J.(Oral)
This appeal has been filed by the appellant, who was tried and convicted by Addl. Sessions Judge Fast Track Court, Bhiwani vide its judgment of conviction dated 19.11.2009 and order of sentence dated 20.11.2009 in FIR No.172 dated 12.04.2003 registered for commission of offence punishable under Sections 394, 397, 353, 333 and 186 IPC at police station City Bhiwani. He was convicted under Sections 394 and 397 IPC. The appellant was sentenced to imprisonment mentioned herein below:
Offence Sentence
U/s 394 IPC Rigorous imprisonment for seven years along with a
fine of Rs.1,000/-. In default of payment of fine to further undergo simple imprisonment for a period of one month.
Bura Sonia 2013.12.10 16:11 I attest to the accuracy and integrity of this document chandigarh CRA-S No.3172-SB of 2009 -2-
Offence Sentence
U/s 397 IPC Rigorous imprisonment for seven years along with a
fine of Rs.1,000/-. In default of payment of fine to further undergo simple imprisonment for a period of one month.
Both the sentences were to run concurrently.
The factual matrix, which led to the registration of the case may now be set out. ASI Leela Ram was admitted in General Hospital, Bhiwani from where telephonic message was received by the police regarding his admission. After he was declared fit to make a statement ASI Leela Ram disclosed the incident, which had occurred on 11.04.2003 at about 10.50 pm. He along with EHC Mahabir Singh were going towards Pipli Wali Johri and were on patrol duty. When they had reached near Banarsi Dass Saini factory, a motorcycle with two riders came from behind and the motorcycle struck against their scooter and they fell down. The pillion rider of the motorcycle showered three-four hockey blows on ASI Leela Ram's head. The police official tried to take out his service revolver but the other person caused injuries on both his arms. One of the boys caught hold of Mahabir's neck. The other boy snatched the revolver held by ASI Leela Ram. They raised alarm and Lilu Ram s/o Maman on hearing the alarm reached the spot. When Lilu tried to intervene, he was also beaten up by the assailants. Thereafter, the assailants fled away taking the service revolver of ASI Leela Ram with them. The police registered a FIR against unknown persons. The police arrested one Madan and Bholu but their involvement was not found and they were discharged. Accused Kirori @ Anoop was arrested in another case and he suffered a disclosure and was arrested in this case also. The co-accused Vinod could not be arrested and was declared proclaimed Bura Sonia 2013.12.10 16:11 I attest to the accuracy and integrity of this document chandigarh CRA-S No.3172-SB of 2009 -3- offender. He was subsequently arrested and was tried separately and acquitted by the Fast Track Court, Bhiwani.
The police completed the investigations and laid a report under Section 173 Cr.PC against the accused.
Charge for commission of offences punishable under Sections 394, 397, 332, 333, 353 and 186 IPC was framed against the appellant to which he pleaded not guilty and claimed trial.
The prosecution had examined ASI Mahabir Singh - PW-1, who had gone for patrol duty along with ASI Leela Ram. He gave detailed account of the incident and disclosed that the assailants had caused injuries to ASI Leela Ram. He stated that both the riders came from behind and caused injuries to ASI Leela Ram as well as to Lilu Ram witness and fled away from the spot along with weapon of offence and service revolver of ASI Leela Ram .
ASI Leela Ram - PW-16 identified the accused in the Court and stated that two young boys came from behind and the motorcycle hit the scooter and they fell down and the person sitting behind on the motorcycle was holding a hockey and he inflicted two-three hockey blows on his head. He identified him in the Court. He stated that when he tried to take out his service revolver, both the accused gave hockey blows on his hands and when Mahabir Singh tried to save him, the motorcycle rider threw sand in his eyes and Kirori @ Anoop snatched his service revolver which was loaded with five live cartridges and when Lilu Ram intervened, he inflicted injuries upon him.
Besides them, the prosecution had examined the police officials, who had investigated the case and had formally arrested the accused, Dr. Dara Singh, medical officer - PW-3 and Dr. J.B.Gupta, Bura Sonia 2013.12.10 16:11 I attest to the accuracy and integrity of this document chandigarh CRA-S No.3172-SB of 2009 -4- PW-5 had examined the injured. SI Shri Bhagwan - PW-14 had recorded the disclosure statement Ex.PN given by Anoop @ Kirori.
Dr. Dara Singh, Medical Officer, General Hospital, Bhiwani
- PW-3 had examined Leela Ram ASI and had noted the following injuries on his person:
1. Swelling defused vertical to horizontal on the left side of the forehead above the eyebrow. Advised X-ray skull. A.P. Lateral view. Surgeon opinion.
2. Swelling defused vertical to horizontal on the right upper 2-3 of the forearm posterior lateral aspect.
Advised X-ray forearm. A.P. Lateral view.
3. Swelling defused vertical to horizontal on the left lower 1/3rd of the forearm. Posterior medical lateral aspect. Advised X-ray left forearm.
A.P.lateral view. Orthosurgeon opinion.
4. Lacerated wound 8 x 1 cm muscle deep irregular vertical on the saggital region, middle aspect of scalp, fresh bleeding present.
5. Lacerated wound 6 x 1 cm muscle deep irregular horizontal on the saggital region left side of scalp, horizontal to injury No.4.
6. Lacerated wound 6 x 1 cm muscle deep irregular vertical on the right saggitoparietal region of scalp, fresh bleeding present.
7. Abrasion 2 cm x 2 cm irregular vertical to horizontal on the left side of forehead above the swelling No.1.
Bura Sonia 2013.12.10 16:11 I attest to the accuracy and integrity of this document chandigarh CRA-S No.3172-SB of 2009 -5- As per X-ray Report Ex.PF, the nature of injury No.2 was stated to be grievous in nature. Weapon used for all injuries was blunt.
Dr. J.B.Gupta, Medical Officer - PW-5 had examined Lilu Ram s/o Maman and had noted the following injuries on his person:
1. An abrasion of right frontal area 5 cm above right eye, bright red with fresh bleed, 5 cm x 2 cm.
2. Two abrasions on right forearm, 1 cm x 5 cm with fresh bleeding.
3. Sub conjuctival hemorrhage in the right eye.
The injuries were simple in nature. Weapon used for all injuries was blunt.
The accused abjured the trial and pleaded false implication. He stated that he had no connection with Vinod and he had been falsely implicated by the police and was in illegal custody of the police and no recovery was effected from him. He stated that the service revolver was already with the police and the case had been lodged to save ASI Leela Ram from his service liability as he had misplaced it and the case was planted.
I have heard the submissions made by learned counsels for the parties and with their assistance perused the record minutely.
It was contended on behalf of the appellant that two persons were challaned by the police and one of them was acquitted, who was tried separately. It was contended that Ravi Kumar's name figures in the MLR but he was not examined. It was urged that identification for the first time in the Court after five years becomes meaningless and there is no connecting evidence to show how the Bura Sonia 2013.12.10 16:11 I attest to the accuracy and integrity of this document chandigarh CRA-S No.3172-SB of 2009 -6- police came to know that the appellant was involved. It was urged that the important witnesses had been held back and they had not been produced for cross-examination. It was contended that Lilu Ram injured eye-witness was not examined by the prosecution. It was contended that the identification in the Court did not have any evidentiary value. Reliance was placed upon Pappu Ram @ Pappu vs. State of Punjab, 2007(3) RCR (Criminal) 455 and Rasi vs. State of Kerala, 2004(4) RCR (Criminal) 561.
Responding to the arguments, the State counsel had urged that the trial as against Vinod had ended in acquittal as the complainant failed to identify Vinod in the Court. It was contended that the appellant had refused to take part in the identification parade and the accused was arrested in a case of murder of a constable with the revolver which was snatched from ASI Leela Ram. It was contended that the police had suspected some other persons but finding them innocent, they were got discharged and the prosecution case had been fully established.
In order to examine the merits of the appeal, it is necessary to refer to the testimony of ASI Leela Ram and ASI Mahabir Singh, who were assaulted while they were returning on a scooter. Both the witnesses have stated that on 11.04.2003, they were returning at about 10.50 pm when two boys on motorcycle came from behind and struck against their scooter and both of them fell down and the person, who was on the pillion, who was carrying a hockey and he inflicted two-three blows with the hockey upon ASI Leela Ram. ASI Mahabir Singh - PW-1 had identified the appellant as the person, who was on the pillion seat and had given hockey blows. Mahabir Singh Bura Sonia 2013.12.10 16:11 I attest to the accuracy and integrity of this document chandigarh CRA-S No.3172-SB of 2009 -7- had also stated that when he tried to intervene the person, who was driving the motorcycle, threw sand in his eyes and snatched the service revolver of ASI Leela Ram. Both the witnesses had spoken about the arrival of Lilu Ram and when he tried to intervene he was also inflicted injuries. They had disclosed that the accused fled away with the loaded service revolver. The injured were shifted to the hospital and their medical examination was got done the same night. The FIR was registered against unidentified persons as the assailants were not known to the eye witnesses.
The prosecution case is that the accused was arrested in a case where a constable was murdered and the service revolver of ASI Leela Ram had been used. During interrogation of that case, a disclosure statement was made by the appellant and subsequently he was formally arrested in this case and sustained interrogation was made and the appellant made a disclosure statement and got the service revolver recovered pursuant to his disclosure statement.
Both the witnesses had identified the appellant in the Court. The main argument of the appellant was that the identification after so many years was meaningless and a person could not have recall from his memory after such a long time. In this case the police had moved an application and they wanted the accused to participate in the identification parade, which was refused by him. This fact goes against the appellant. It is not necessary that the identification should also be by name. If a person refuses to participate in the identification parade the Court can draw an adverse inference, which was rightly done by the trial Court. The appellant was duly identified in the Court and the identification in the Court is acceptable evidence. The identity Bura Sonia 2013.12.10 16:11 I attest to the accuracy and integrity of this document chandigarh CRA-S No.3172-SB of 2009 -8- of the accused is not in doubt.
The appellant had suffered a disclosure statement and had got the service revolver recovered. He is also accused of using the service revolver snatched from ASI Leela Ram and a separate case was registered against him. As per FSL report, the revolver was found to be in a working condition.
The medical evidence supports the ocular version of the witnesses. There was no reason for the witnesses to depose against the appellant. The presence of Lilu Ram has been proved by the prosecution. He had also suffered injuries and those had been proved by Dr. J.B.Gupta- PW-5. It is another matter that the prosecution could not examine Lilu Ram and the reasons are disclosed in their application mark 'A'. The accused had managed to win him over.
The fact that the co-accused Vinod was acquitted does not help the appellant. The prosecution had explained that the complainant had failed to identify Vinod in the Court, which led to his acquittal. The appellant had failed to explain how the service revolver of ASI Leela Ram came in his possession. The appellant had an opportunity to explain but he failed to give any explanation.
For the reasons and discussion made above, I find no infirmity in the judgment passed by the trial Court. The judgment of conviction and order of sentence passed by the trial Court stand affirmed. The appeal is dismissed.
(Anita Chaudhry) Judge 21.11.2013 sonia Bura Sonia 2013.12.10 16:11 I attest to the accuracy and integrity of this document chandigarh