Punjab-Haryana High Court
Labh Singh vs State Of Haryana on 6 August, 2012
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CRA-D-769-DB of 2009 [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-769-DB of 2009
Date of decision:06.08.2012
Labh Singh ...Appellant
Vs.
State of Haryana ...Respondent
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Atul Lakhanpal, Senior Advocate, with
Mr. R.S.Chahal, for the appellant.
Mr. Sandeep Varmani, Addl. A.G., Haryana.
*****
RAKESH KUMAR JAIN, J.
This appeal is against the order of conviction and sentence dated 13.07.2009, convicting the appellant under Sections 302, 201 and 385 read with Section 511 of the Indian Penal Code, 1860 [for short "IPC"] and sentencing him to undergo rigorous imprisonment for life with fine of `10,000/-, in default of payment of fine, to undergo rigorous imprisonment for 3 years, under Section 302 IPC, to undergo rigorous imprisonment for seven years with fine of `5,000/-, in default of payment of fine, further rigorous imprisonment for one and half years under Section 201 IPC and to undergo rigorous imprisonment for CRA-D-769-DB of 2009 [2] ***** one year and fine of `1,000/-, in default of payment of fine, to undergo rigorous imprisonment for three months, under Section 385 read with Section 511 IPC. All the sentences were ordered to run concurrently and the period of detention during investigation and trial was ordered to be set off against the substantive sentence.
The FIR (Ex.P22) was authored by Om Parkash Sarpanch in which he had stated that he along with Lekh Raj, member son of Basawa Ram, resident of Dhani Chanan Wali left their house on a motorcycle for Fatehabad town in connection with some work. A small canal known as Mochiwala Minor passes through their village. When they reached near the bridge of said canal constructed on the G.T. Road, found many persons standing on the rear side of the bridge of the canal. They also stopped and saw a dead body, face downward, entangled in the water near the bridge came drifted with the flow of water. The wearing apparels on the dead body were one chekdaar shirt with blue linings, blue colour vest (Banian), gray colour pant and black colour leather shoes. There were mark of injuries on the neck and left side temple of the dead body which were inflicted by some unknown person with a sharp edged weapon, causing his death and threw in the canal in order to destroy the evidence. After leaving Lekh Raj at the spot, he came to the Police Station to lodge the report when SI Vijender Singh, Incharge of Police Post Dariyapur, met him on the GT road and CRA-D-769-DB of 2009 [3] ***** recorded his statement.
Inquest report (Ex.P31) was prepared and the dead body was sent for post mortem, conducted by Dr. Sanjeev Arya (PW9), Medical Officer, Government Hospital, Fatehabad. The dead body was found grossly swollen and decomposed, skin was easily peeling, air bubbles with blood was coming from mouth, genitalia were swollen and rigor mortis was not present. There were two wounds, first of size 6 x 3 cm was present, 4cm behind the left ear obliquely placed and other two parallel wounds of size 8 x 2 cm each, transversally present at the base of the neck on left side. The cause of death was stated to be haemorrhage and shock due to wounds on neck, anti-mortem in nature. The dead body was identified by Om Parkash Sarpanch to be of Chandi Ram son of Jaggu Ram, aged 42 years, resident of village Ahlisadar, Fatehabad.
After completion of investigation, the appellant was charge sheeted for offences punishable under Sections 302, 201 and 385 read with Section 511 IPC but he pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined Fouja Singh (PW1), owner of the vehicle on which the appellant was employed as a Driver, HC Anil Kumar (PW2) delivered special report to the Illaqa Magistrate, MHC Mahabir Singh (PW3) with whom sealed case property was deposited by P/SI Vijender Singh, Const. Rashpal CRA-D-769-DB of 2009 [4] ***** Singh (PW4) was entrusted with case property for delivering to FSL at Madhuban, Daljeet Singh (PW5) witnessed recovery of dead body, Om Parkash Sarpanch (PW6) has been declared hostile, Bhagwan Chand (PW7) prepared the site plan (Ex.P7) indicating the place of recovery of the dead body, Krishan (PW8) was the guard employed in Ravi Hospital in whose presence appellant threatened Dr. Ravi Kant Dabra and took away the dead body, Dr. Sanjeev Arya (PW9) conducted post mortem, Balwant Singh Draftsman (PW10) prepared the scaled site plan (Ex.P10) of the place of occurrence, Atma Ram (PW11) nephew of the deceased, who last seen the deceased in the company of the appellant on 11.05.2008, HC Mahender Singh (PW12) joined the investigation carried out by P/SI Vijender Singh, EHC Raj Kumar (PW13) took six photographs (Ex.P16 to Ex.P21) of the dead body, Khajan Singh Retired SI (PW14) recorded the formal FIR on receipt of Rukka (Ex.P5) from SI Vijender Singh and sent special report to the Illaqua Magistrate, SP and DSP through EHC Anil Kumar, Sher Singh (PW15) witnessed the appellant while threatening Dr. Ravi Kant Dabra for extracting money and taking away the dead body, Dr. Ravi Kant Dabra (PW16) whom the appellant had allegedly threatened with false implication for the death of Chandi Ram (deceased) and demanded `2 lac at his hospital.
After the evidence of the prosecution was over, the CRA-D-769-DB of 2009 [5] ***** appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 [for short "Cr.P.C."]. He pleaded innocence and stated that he has been framed in a false case by Dr. Ravi Kant Dabra (PW16) who disputed with regard to his salary and `2.5 lac which he deposited with him after selling his house at village Ahlisadar. He stated that he had no connection with the death of Chandi Ram but did not lead any evidence in his defence.
Although there was no eye-witness, yet last seen statement of Atma Ram (PW11), Krishan (PW8), Guard of Ravi Hospital, Fatehabad, Sher Singh (PW15) who saw the appellant threatening Dr. Ravi Kant Dabra and Dr. Ravi Kant Dabra (PW16) have been relied upon by the Trial Court as well as the circumstance of recovery of blood stained seat cover, foot-mats and T-shirt of the appellant, while holding him guilty.
Counsel for the appellant has submitted that the entire story is highly unbelievable and displays lackadaisical approach in investigation, demanded not only freedom of the appellant but also for re-investigation of this case by constituting a special team.
It is submitted that Atma Ram (PW11) has divulged that he is running a photo studio at Fatehabad under the name and style of "Lucky Photo Studio". On 10.05.2008, his maternal uncle Chandi Ram (deceased) left his house from Ahlisadar along with Labh Singh CRA-D-769-DB of 2009 [6] ***** (appellant). On 11.05.2008, at about 8.00 p.m., deceased (Chandi Ram) along with Labh Singh (appellant) came there on a Scorpio bearing registration No.HR99BF-T-5297 and said that he has got an urgent work and will not come to his house on that night. In cross- examination, he stated that the deceased used to reside at Fatehabad. He was not aware of the locality where he used to live but he was living in a rented house. He never visited the house of the deceased at Fatehabad. The deceased used to work as a Labourer at Fatehabad and used to visit village Ahlisadar very rarely. He further stated that he did not give the aforesaid account in his statement (Ex.D1) except for identifying the dead body.
It is further submitted by counsel for the appellant that there was no occasion for the deceased to go to the shop of Atma Ram (PW11) and tell him that he has some urgent work and will not come to his house at that night especially when the deceased was a bachelor and was not living with PW11 who was not even aware of the locality where the deceased was putting up and used to visit village Ahlisadar very rarely.
It is submitted that the statement of Krishan (PW8) is not worthy of credence who stated that he has been working as a Guard in Ravi Hospital, Fatehabad. On 11.05.2008, the appellant came to the hospital and asked to meet the doctor. PW8 informed the doctor who CRA-D-769-DB of 2009 [7] ***** came and started chatting with the appellant for about one or two minutes and thereafter appellant took the doctor aside but when they did not come out, one Sher Singh (PW15) came there. He along with PW15 went inside the hospital and saw the appellant threatening Dr. Ravi Kant Dabra (PW16). The appellant was saying that he will extract money from the doctor who was lying on the sofa in an unconscious manner. When he and Sher Singh (PW15) went inside the lobby, they noticed the appellant armed with Kappa, a dead body lying on the floor of the gallery and the T-shirt of the appellant was stained with blood. The appellant threatened them with dire consequences if the matter is reported to anybody. Dr. Ravi Kant Dabra (PW16) regained consciousness at 6.00 a.m. and he and Sher Singh disclosed to the doctor the factum of threat given by the appellant to them. Thereafter, the doctor told them to go to their respective villages. Appellant took away the dead body and also removed blood stains in the hospital.
In cross-examination, this witness has stated that he did not visit Ravi Hospital, Fatehabad and did not meet Dr. Ravi Kant Dabra after the occurrence. The police did not meet him regarding this case nor he ever met the police in this connection. His statement was recorded in the police station on 16.05.2008 at about 3 p.m. when he was called by Dr. Ravi Kant Dabra (PW16) through his laboratory CRA-D-769-DB of 2009 [8] ***** technician, namely, Bittu. He further stated that Dr. Ravi Kant Dabra (PW16) was not known to him previously and he joined the duty of Guard on 01.04.2008 at Ravi Hospital, Fatehabad. He used to work from 8 pm to 6 am. At the time of occurrence, he along with Sher Singh (PW15) and one nurse (Sushma) were present in the hospital. There were 3-4 patients admitted as indoor patient in the hospital. He used to sit in the lobby after locking the outer door of the hospital from inside. The residence of the doctor is on the first floor of the hospital which is enclosed by a boundary wall. At night, all the gates of the hospital are bolted from inside. The rear boundary wall of the hospital is about 15-20 feet in height. The remaining three boundary wall touches roof of the hospital. When he was appointed as Guard, Labh Singh (appellant) was not working as an employee in the hospital. Before the date of occurrence, he did not see the appellant. He had seen the appellant for the first time on the date of occurrence who had entered the hospital from the main gate. The appellant called him from outside, he opened the door and asked him about his purpose to visit the hospital. The appellant told that he had some urgent work with PW16 but he did not ask about the specific urgent work but he called PW16. Lobby and gallery of the hospital is in front of the main gate of the hospital. The main gate of the hospital opens on the road. When he went to call the doctor, the appellant had come in the gallery of the CRA-D-769-DB of 2009 [9] ***** hospital which is at a distance of about 3-4 paces from the place where he used to sit as a Guard. The appellant and the doctor went towards the side of Operation Theater under the stairs. The doctor and the appellant were present in the lobby on the ground floor and when he and PW15 saw them, the doctor was lying unconscious on sofa in the lobby. On that day, neither wife of Dr. Ravi Kant Dabra (PW16) nor their children were present. The appellant remained there for about 10-15 minutes. The dead body was lying at a distance of about 90-100 feet from the main gate in the hospital. He did not go to the place where the dead body was lying. The appellant cleaned the blood stains by using water from a bucket and wiper. When the appellant carried the dead body, he and Sher Singh (PW15) saw him, but the nurse did not see the dead body. When the appellant carried the dead body, blood fell on the floor up to the main gate. The appellant carried the dead body on his shoulder. They did not raise any alarm when the appellant went outside towards the black colour Scorpio. Although telephone facility was available in the hospital, they did not make any telephone call to the police or any relative of the doctor including his wife. They did not report the matter to the nurse. It is also stated that attendants of one or two indoor patients were also present, but nothing was reported to the attendants because they were sleeping. Police Station is at a distance of 4-5 Kms from the hospital. The doctor CRA-D-769-DB of 2009 [ 10 ] ***** regained consciousness at 6.00 a.m. and he remained present in the hospital for about 5-10 minutes after consciousness was regained by the doctor and then left the hospital. Dr. Ravi Kant Dabra (PW16) asked him to go to his house and, thereafter, he did not return back till doctor called him on 16.05.2008. The appellant cleaned the blood fell on the floor within a length of about 4-5 feet.
Counsel for the appellant has submitted that according to the aforesaid statement of PW8, all the doors of the hospital were bolted from inside at night, the rear boundary wall of the hospital is about 15-20 feet in height and the remaining three boundary walls touch the roof of the hospital. The appellant entered the hospital from the front/main gate. He was not familiar to the appellant as he never met him earlier, but on his mere asking to meet the doctor with regard to some urgent work, he allowed him to go to the doctor directly. The doctor and the appellant had a talk. He and PW15 heard the appellant threatening the doctor for extortion and the doctor became unconscious in the lobby and regained consciousness at 6.00 a.m. Till then, nothing was done by PW8 or PW15 even to send for the nurse who was also available in room no.5 in the same hospital in order to recover the doctor from his unconsciousness. Since PW8 has not stated as to how the dead body of Chandi Ram entered the hospital, it appears that it was already there in the gallery of the hospital when the appellant entered CRA-D-769-DB of 2009 [ 11 ] ***** from the main gate. If it was not already lying there, then in case of injuries inflicted with sharp edged weapon, there had to be some hue and cry on the part of the deceased in order to save himself but nothing has been stated. It is further submitted that the statement of PW8 is totally unreliable as he had not seen anything.
Sher Singh (PW15) had stated that on the intervening night of 11/12.05.2008 at about 3.30/35 AM (night), he heard noise while sitting in his room. He saw three persons outside, one Dr. Ravi Kant Dabra, second, the appellant and the third one was Krishan (PW8). The appellant was earlier employed as driver-cum-guard with Dr. Ravi. Appellant escorted Dr. Ravi in a room. At that time, he and Krishan (PW8) were in lobby of the hospital. When the appellant did not come out from the room for a short while, he asked Krishan (PW8) to enquire about it. Thereafter, he along with PW8 went inside the room, saw Dr. Ravi unconsciously reclining on a sofa and the appellant standing in front of him armed with a kappa and threatening him to extract money. The dead body was lying behind the legs of the appellant. At that time, the appellant was standing in the gallery. The appellant took a bed sheet from the hospital, wrapped the dead body, lifted it on his shoulder, went outside and placed it in his Scorpio car bearing No.HR99-BFT-5297. Then, he came back and washed the blood stains in lobby and while leaving the hospital, he again threatened them not to CRA-D-769-DB of 2009 [ 12 ] ***** disclose the occurrence, else he would kill them and also asked them to tell Dr. Ravi the same thing. After that, they sprinkled water on Dr. Ravi and after about 2-½ hours, Dr. Ravi regained consciousness and he and Krishan (PW8) left the hospital to their respective villages.
In his cross-examination, he stated that he is working as compounder for about 1-½ years in the hospital of Dr. Ravi. At the time of occurrence, he and Sushma Nurse were present in the hospital along with Krishan guard. 3-4 indoor patients were admitted on the ground floor and 3-4 patients were admitted on the first floor. Those patients were also accompanied by their attendants. He stated that there is one main gate in the hospital and one on the back side. Back side gate is kept open to be used by the patients and attendants and on the day of occurrence, it was open. He also stated that the dead body was lying at a distance of about 60-70 feet from the place where Dr. Ravi and the appellant were initially talking. He further stated that the appellant took water from the tap in the gallery and used wiper and poncha for cleaning blood stains in the gallery. The dead body was taken away by the appellant from the main gate of the hospital. The hospital is situated in the main abadi of the city. He did not notice blood oozing out from the dead body.
It is argued by counsel for the appellant that PW15 has also admitted that appellant had entered and left the hospital from the main CRA-D-769-DB of 2009 [ 13 ] ***** gate, then how the dead body was found lying in the gallery of the hospital or when did the deceased enter the hospital, who according to PW11, was with the appellant. He further submitted that the statement of this witness is not believable that appellant first kept the dead body in the Scorpio and returned to the hospital to wash blood stains from lobby and gallery.
Insofar as Dr. Ravi Kant Dabra (PW16) is concerned, he has stated that he is running a hospital under the name and style of Patiala Children and Maternity Hospital at GT Road, Fatehabad. On the intervening night of 11/12.5.2008, at about 3.30/35 AM, his guard Krishan Kumar (PW8) woke him up and told that one person, namely, Labh Singh (appellant) has come downstairs in the hospital and wanted to meet him. Labh Singh told him that a dead body is lying in the gallery of the hospital. He along with the appellant went to the side of the gallery through his residence on first floor and visited ground floor lobby, opened the gallery and saw a man lying dead in the gallery who was not previously known to him. As soon as, he saw the dead body, he asked the appellant to call the police, on which he told him that if police is called then he will get entrapped. Thereafter, the appellant demanded a sum of `2 lac from him on the ground that he will dispose of the dead body, but he declined to accept his offer and insisted upon calling for the police. The appellant got enraged and took out a kappa CRA-D-769-DB of 2009 [ 14 ] ***** and said that he will have to part with the money, otherwise he will also be killed in the same manner the person lying in the gallery has been killed. After seeing the dead body and kappa, he got frightened and became unconscious. When he regained consciousness, his guard and compounder disclosed to him that the appellant had taken away the dead body in his black colour Scorpio car and also cleaned the blood stains before his departure.
In cross examination, he has stated that the appellant was known to him for the last 10-12 years as he was employed with him as a guard-cum-driver. He was employed in the month of May, 2007 and remained with him till January 2008. On the fateful day, his wife was not present in the hospital as she had gone to Ratia at about 10 PM in connection with matrimonial relation of his daughter. He had admitted that there were 3-4 indoor patients on the ground floor and 3-4 indoor patients on the first floor and there were also their attendants in the hospital. He went upstairs to his residence at about 10.00 PM and did not step down to attend any patient and only woke up at 3.45 AM by his guard on account of a call given by the appellant. When he came down, compounder Sher Singh was not present. He went with the appellant to see the dead body which was lying on the floor itself at a distance of about 85-90 feet from the main gate of the hospital. He became unconscious in the lobby and fell down on the sofa lying over CRA-D-769-DB of 2009 [ 15 ] ***** there. He regained consciousness at about 6.00 AM but did not contact the police for three days. He was mentally shocked and got treatment from Dr. Sanjay Bansal of Fatehabad and Dr. Prem Munjal, a Psychiatrist at Hisar. He did not stay in his hospital for the said three days and remained at various places at Ratia and Hisar to conceal himself, out of fear. Although his friends enquired about the reasons of his despair, but he did not disclose anything to anybody.
Counsel for the appellant has submitted that the conduct of PW16 itself indicates that he has been hiding the truth from the police, otherwise it is highly improbable that he would wake up at 3.30/35 AM (in the night) merely on the call given by the appellant who was not even known to the guard (PW8). The story coined by this witness is that the appellant had shown him the dead body lying in the gallery and demanded `2 lac for the purpose of its disposal and on his refusal, he was threatened by him with a kappa and having been frightened, he became unconscious and remained in that state for about 3 hours, no-one was informed by the compounder and even the nurse and other attendants were not called. He has admitted that 3-4 indoor patients were admitted on the ground floor and 3-4 indoor patients on the first floor and their attendants were present in the hospital, but no-one saw the dead body lying in the gallery till the appellant entered the hospital and informed the doctor about it. This witness has clearly admitted that CRA-D-769-DB of 2009 [ 16 ] ***** he had concealed himself at various places till recovery of dead body from the canal. There was hardly any reason for him to get so much perturbed that he had to consult the other doctor much-less the Psychiatrist.
Learned counsel for the appellant has also argued that even the investigation by PW17 and PW18 is not aboveboard.
In cross-examination, PW17 had stated that "we reached Ravi Hospital at about 7.30 PM. In Ravi Hospital, no doctor was present. Compounder, nurses and patient were present in the hospital at that time. I do not recollect the numbers of compounder and patients in the hospital at that time. I do not recollect whether medicines store is there in the hospital or not. I did not go to the portion of hospital which opens towards GT road. I had visited almost rear portion of Ravi Hospital. One compounder was called by me and nurse was not called. Compounder came to me but I do not know the name of that compounder. The compounder called by me remained with me for few minutes and then went away. I did not ask him to be with me throughout my stay in Ravi Hospital. I do not know whether any attendants of patient were present in the hospital or not as I did not enter into ward of the indoor patient. No person was roaming around in the hospital. I had enquired about Dr. Ravi Kant and his wife but I was told that they are perplexed and whereabouts of their CRA-D-769-DB of 2009 [ 17 ] ***** are not known. Compounder had told me the fact regarding condition of doctor and his wife. I had not taken mobile number of Dr. Ravi Kant from him. Volunteered that compounder had informed that the doctor has switched off his mobile. I did not collect any evidence regarding mental state of affairs of Dr. Ravi Kant, whereabouts of his wife and alike facts. I did not investigate indoor patient register of Ravi Hospital from 11.5.08 to 15.5.08. I did not investigate regarding the fact that who was compounder, nurse, patients, attendants or chemist on the fateful night in the hospital". "The blood samples were taken by Dr. Joginder Singh. At that time, accused was present there. His T-shirt was taken out by Dr. Joginder Singh and thereafter, I had taken it in police possession. I had not recorded statement of Dr. Joginder Singh under section 161 Cr.P.C. Signatures of Dr. Joginder Singh was not obtained on any memo. It was not necessary to take signatures of Dr. Joginder Singh on memo as well as it was not necessary to record his statement under section 161 Cr.P.C. So I did not take his signature and recorded his statement under section 161 Cr.P.C. I had asked Dr. Joginder Singh to give report but no report was given on 14.5.08 to me. Later on report was given by him or not, I cannot tell without going through the record of the case. I had not summoned any such report along with the challan. I might have not received such report from Dr. Joginder Singh. It is correct that there CRA-D-769-DB of 2009 [ 18 ] ***** is no mention regarding report of Dr. Joginder Singh in my challan. I had not mentioned the factum of Dr. Joginder Singh being associated with me in connection with this case in challan. Volunteered the same might have been found mentioned in my ziminy. I did not take accused Labh Singh to the place where Scorpio and kappa was kept concealed by him as disclosed by him".
PW18 stated in his cross-examination that "we reached Ravi Hospital at about 7 PM. We entered into the hospital from rear side. At that time, compounder and nurses were not present in rear portion of the hospital. At that time, we did not visit the front portion of the hospital. No compounder and nurse was called by us. I do not know the number of compounders and nurses in the said hospital. I do not know whether any common man was there in the hospital or not. I did not visit any ward of the hospital. There is gate which partition rear portion and front portion of the hospital. Rear portion is almost vacant and one generator was lying there. Rear gate of the hospital was opened at the time of our visit as well as channel gate which intervenes rear and front portion was also opened. There is a distance of about 11-12 feet in between rear main gate and channel gate. The width of rear portion is about 15 feet but it is triangular shaped. The floor of rear portion of the hospital was made of cement. The residence of doctor was inside hospital. I do not know whether CRA-D-769-DB of 2009 [ 19 ] ***** Dr. Ravi was residing in ground floor or first floor of the hospital. Perhaps compounder or nurse came to us and on enquiry, they told that doctor and his wife is not there in the hospital. They told that the doctor and his wife are far away from 2-3 days and their whereabouts are not known to them. Except this information nothing was disclosed by compounder or nurse. The said compounder and nurse was not joined in investigation by the I.O. No record of hospital was seen by IO from 11.5.08 to 15.5.08. We remained there till 9.15 PM. Dr. Joginder Singh from scene of crime reached at hospital at about 7.30 PM. The said doctor from scene of crime was called by SHO Balbir Singh through wireless. Dr. Joginder Singh reached hospital at his own along with his team. Dr. Joginder Singh got removed T-shirt of accused Labh Singh. The parcel of swabs, T-shirt and blood stained earth were prepared by SHO Balbir Singh at the spot in the presence of Dr. Joginder Singh. Statement of Dr. Joginder Singh was not recorded nor, his signature was appended on any document. Balbir Singh SHO only recorded the statement of HC Om Parkash and of me in Ravi Hosopital. At that time, I had not visited front portion of the hospital. We returned from Ravi Hospital to P.S. Sadar, Fatehabad at about 9.30 PM".
On the other hand, learned State counsel has argued that presence of the appellant at the scene of crime has been proved in the CRA-D-769-DB of 2009 [ 20 ] ***** statements of PW8, PW15 and PW16. Although no-one had witnessed the commission of crime, but saw the appellant with blood stained kappa, removing the dead body and blood stains from the spot. He further submitted that Atma Ram (PW11) is the witness who had last seen the deceased in the company of the appellant immediately before the occurrence and the recovery of blood stained shirt, Scorpio and blood stained mat on the disclosure statement of the appellant completes the chain of circumstances.
We have heard counsel for the parties and perused the record with their able assistance.
In this case, the dead body has been recovered from the canal after 3 days of the alleged occurrence, bearing incised wounds on the neck. The story propounded by the prosecution by examining PW11 that the deceased was last seen by him in the company of the appellant when he had gone to his shop to tell him that he is going along with the appellant and would not come back that night appears to be highly improbable to the prudent mind because the deceased was not residing with PW11 and was a bachelor. He rarely used to visit his village and PW11 has shown ignorance even about the actual abode of the deceased. He did not state that it was routine of the deceased to specially inform him whenever he used to go out with someone for spending a night. Moreover, he did not make this statement before the CRA-D-769-DB of 2009 [ 21 ] ***** police while recording Ex.D1 except for identifying the dead body. Meaning thereby he has been introduced by the prosecution lateron as a last seen witness.
Insofar as PW8 is concerned, he categorically stated that he was on duty at the time when the appellant visited the hospital. It was about 3.30/35 AM (night) when the appellant asked him for a meeting with the doctor. It is admitted by him that he had never seen the appellant before, but strangely enough, on his mere asking, without knowing the exact purpose of his visit, he went upstairs and rang the doorbell of the room in which PW16 was sleeping. He did not see the deceased entering the hospital from the main gate. He also stated that at night, all the doors of the hospital were closed. The appellant and PW16, while talking to each other went inside the room and when they did not come down, PW8 called upon PW15 and both of them saw the doctor lying unconscious on the sofa in the gallery, whereas the appellant was standing in front of him with kappa in his hand and the dead body was lying on the floor. PW8 and PW15 informed PW16 about the occurrence after he recovered about 2-½ hours at 6.00 AM and then PW16 told both PW8 and PW15 to leave the hospital and they obeyed accordingly. It is highly improbable that the appellant, after taking away the deceased wrapped in a bed-sheet and leaving him in the Scorpio vehicle, would come back to the hospital and would use CRA-D-769-DB of 2009 [ 22 ] ***** water and mop to remove blood stains from the floor. All these activities were only seen by PW8 and PW15 and not by any of the attendants of the indoor patients who were 3-4 on the ground floors and 3-4 on the first floor and also not by the Nurse Sushma who was also on duty. There is no explanation on the part of PW8 and PW15 as to how the deceased came into the hospital. Similarly, the conduct of PW16 has been found to be extraordinarily abnormal as he did not report the matter to the police and fled away from his hospital for almost 3 days and hide himself at various places at Hisar and Ratia. No evidence has been brought on record by the prosecution about the motive of murder that too in the hospital of PW16 in the dead of the night and even threatening PW16 for the purpose of extortion of `2 lac. There is no explanation as to why no effort was made either by PW15, who was a compounder, to revive PW16 from unconsciousness, who alleged to have fainted and remained as such upto 6 AM. There was no effort to inform even the nurse available in the hospital or other attendants of the indoor patients.
Similarly, the conduct of PW17 and PW18 is not appreciable who did not record the statement of any of the attendants or the person available in the hospital and introduced one Dr. Joginder Singh who alleged to have collected blood samples etc. from the scene of crime.
CRA-D-769-DB of 2009 [ 23 ]
*****
The very fact that the whole story of the prosecution is silent about the manner in which the deceased was found present in the hospital, much-less in the dead state, shows the false implication of the appellant in this case.
Accordingly, the present appeal is allowed, order of conviction and sentence dated 13.07.2009 passed by the learned Trial Court is set aside and the appellant is hereby acquitted and ordered to be released forthwith, if he is not involved in any other case.
Before parting, this Court has strongly felt that this is one of those cases in which role of the prosecution has been found to be highly dubious. We are compelled to observe that the investigation conducted by PW17 and PW18 is neither fair nor just, rather it indicates towards false implication of the appellant in order to save someone who is the real culprit.
Counsel for the appellant has argued that the matter may be re-investigated by constituting a Special Investigation Team (SIT) in terms of Section 386 of Cr.P.C.
In this regard, it has to be seen while exercising the powers under Section 374 of Cr.P.C., order can be passed for re-investigation of the case under Section 386 Cr.P.C. in order to ensure complete justice.
In this regard, a similar controversy came up before the CRA-D-769-DB of 2009 [ 24 ] ***** Supreme Court in the case "Popular Muthiah v. State represented by Inspector of Police", 2006(3) R.C.R. (Criminal) 527 wherein Madras High Court, while adjudicating an appeal, arrived at a conclusion that another person who was not the appellant and was not ever arrayed as an accused during the trial was also involved in the commission of offence and issued directions for re-investigation while upholding the conviction and sentence of the appellant in that case. It was vehemently argued before the Supreme Court while hearing an appeal against conviction, the powers under Section 482 Cr.P.C. are not available to the High Court, but the Supreme Court held as under:-
"While exercising its appellate power, the jurisdiction of the High Court although is limited but, in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revisional jurisdiction and/or inherent jurisdiction not only when an application therefor is filed but also suo motu. It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdictions in CRA-D-769-DB of 2009 [ 25 ] ***** the matter. Keeping in view the intention of the Parliament, while making the new law the emphasis of the Parliament being 'a case before the court' in contradistinction from `a person who is arrayed as an accused before it' when the High Court is seized with the entire case although would exercise a limited jurisdiction in terms of Section 386 of the Code of Criminal Procedure, the same, in our considered view, cannot be held to limit its other powers and in particular that of Section 482 of the Code of Criminal Procedure in relation to the matter which is not before it."
"The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite, both in relation to substantive as also procedural matters."
However, in the said case, it was also cautioned that the High Court cannot issue directions to investigate the case from a particular angle or by a particular agency.
The power of the High Court for re-investigation and re-trial has been discussed in the case of Zahira Habibulla H. Sheikh CRA-D-769-DB of 2009 [ 26 ] ***** and another v. State of Gujarat and others, 2004(2) RCR (Crl.) 836 in which the following observations were made:-
"According to the appellant Zahira there was no fair trial and the entire effort during trial and at all relevant times before also was to see that the accused persons got acquitted. When the investigating agency helps the accused, the witnesses are threatened to depose falsely and the prosecutor acts in a manner as if he was defending the accused, and the court was acting merely as an onlooker and when there is no fair trial at all, justice becomes the victim.
54. Though justice is depicted to be blindfolded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy CRA-D-769-DB of 2009 [ 27 ] ***** shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.
55. The courts, at the expense of repetition we may state, exist for doing justice to the person who are affected. The trial/first appellate courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the CRA-D-769-DB of 2009 [ 28 ] ***** accused, parading a mock fight and making a mockery of the criminal justice administration itself."
It was further held by the Supreme Court in Sasi Thomas v. State, 2007(1) R.C.R. (Criminal) 695 that "such a direction, thus, can be issued where there had been complete failure of justice and in a case where the investigating and prosecuting agencies were found to have not performed their role in the manner it was expected to do".
Moreover, in the cases of Nachhattar Singh alias Khanda and others v. State of Punjab, 2009(4) R.C.R. (Criminal) 409 and Ajit Singh v. State of Haryana, 2011(2) R.C.R. (Criminal) 782, this Court had issued directions for registration of criminal case against the investigating officer and directed the State to compensate the appellant. Thus, we direct the State of Haryana to constitute a special investigation team headed by an officer of the rank of Deputy Superintendent of Police and re-investigate this case and bring the real offender before the law.
Insofar as the role of PW17 and PW18 is concerned, this Court is highly dismayed and is of the prima facie opinion that both of them intentionally and deliberately implicated the appellant in this case in order to save the real culprit. Thus, taking support of the observations of this Court in CRA-D-792-DB-2007 titled as "Jagtar CRA-D-769-DB of 2009 [ 29 ] ***** Singh alias Kala v. State of Punjab", decided on 30.05.2008, we direct the Director General of Police, Haryana to nominate a police officer, higher in rank and status than the two police officials, referred to above, namely, Inspector Balbir Singh PW17 and SI Bijender Singh PW18 so as to carry out an indepth departmental inquiry into the matter and in case they are found to be guilty, appropriate action should be taken against them in accordance with law. The whole exercise should be completed within 6 months from the date of receipt of certified copy of this order. Registry is directed to send a certified copy of this order to the Director General of Police, Haryana, immediately.
[ JASBIR SINGH ] [ RAKESH KUMAR JAIN ]
ACTING CHIEF JUSTICE JUDGE
06.08.2012
vinod*