CRM-A-353-MA of 2013 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-A-353-MA of 2013 Date of Decision:12.08.2013 State of Haryana ..... Applicant Versus 1. Happy son of Jai Pal, resident of village Saha, Police Station Industrial Area Saha, District Ambala.
2. Jai Pal son of Panni Lal, resident of village Saha, Police Station Industrial Area Saha, District Ambala. .....Respondents. CORAM: HON'BLE MR. JUSTICE S.S. SARON HON’BLE MR. JUSTICE S.P. BANGARH Present: Mr. H.S. Deol, Addl. AG, Haryana for the applicant-State. ***** S.P. BANGARH, J The case of the prosecution is that on 16.06.2011, ASI Banni Singh (PW-13) while he was present in Police Station Industrial Area Saha received memo Ex.P29 from ASI Jagdish Chand regarding the injuries received by one Dara Ram son of Sh. Phaggu Ram resident of Village Saha, P.S. Industrial Area Saha, District Ambala in a quarrel, in the area of that police station. On receipt of this memo, he alongwith other police officials reached M.M. Medical College and Hospital, Mullana, where he obtained MLR Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -2 - Ex.P15 No.3074 dated 16.6.2011 of Dara Ram (deceased). Thereafter, he moved an application Ex.P28 before Dr. Ram Kirti Garg (PW-2) of the said hospital, seeking his opinion as to whether Dara Ram (deceased) was fit to make statement. PW-2 (Dr. Ram Kirti Garg) gave his opinion Ex.P9 that Dara Ram (deceased) was not fit to make statement. Thereafter, ASI Banni Singh (PW-13) recorded the statement of Ram Kumar (PW-1), who was found present in the Medical College and Hospital (supra), wherein, he (PW-1 Ram Kumar s/o Dara Ram-deceased) stated that on 16.06.2011, he and his father Dara Ram-deceased son of Faggu Ram aged about 60 years were present at their ice shop. At about 4.00 p.m., Surinder Kumar son of Panni Lal caste Balmiki, resident of Saha came to them and told them, as to where Dara Ram-deceased was. PW-1 (Ram Kumar) told Surinder that his father had gone to home for taking food and was about to come. In the meanwhile, his father returned from home after taking his meals. Surinder told his father that, (by saying uncle) he has to talk to him and, therefore, he should accompany him to his shop situated on the chowk. On the asking of Surinder Kumar, Dara Ram-deceased father of PW-1 (Ram Kumar) went with him to his shop. After 15 minutes, thereafter, he (PW-1 Ram Kumar) came to knot that Surinder has caused injuries to his father. Immediately, he reached Saha Chowk and saw that his father had received injuries on his abdomen and chest with many punch edged weapons and blood was oozing out. Then the police Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -3 - reached at the spot. He (PW-1 Ram Kumar) put his father Dara Ram in an ambulance and took him for treatment to M.M. Hospital. On the way, his father (Dara Ram-deceased) told him (PW-1 Ram Kumar) that Happy (respondent No.1) son of Jai Pal and Panni son of Faggu Ram, had caught hold of him and Surinder with an intention to kill him had given 5-6 injuries with ice breaker to him. Jai Pal son of Panni Lal had also given him slap and fist blows. So, all these four persons with an intention to kill Dara Ram-deceased had caused injuries. Statement Ex.P1 supra, that was recorded by ASI Banni Singh (PW-13), was read over and explained to Ram Kumar-complainant, who after admitting the genuineness and correctness, thereof, signed the same. ASI Banni Singh (PW-13) put his endorsement Ex.P25 on the statement Ex.P1 of Ram Kumar- complainant and sent it through E/ASI Mahinder Singh to the police station, where formal FIR Ex.P26 was recorded by ASI Kirpal Singh (PW-9) who later, thereon, put his endorsement Ex.P23. He also sent the copies of the FIR to the Area Magistrate, as also to the higher officers, through EHC Ashok Kumar (PW-4). Later, ASI Banni Singh (PW-13) visited the spot, where Ramesh son of Ram Kumar, Joginder, Pardeep and Suresh Kumar Sarpanch met him. In their presence, PW-13 (ASI Banni Singh) inspected the place of occurrence and prepared the rough site plan Ex.P30. He also collected the blood stained earth from the spot and made that into a parcel, that was sealed by him with his seal bearing impression 'BS'. Seal after use was handed over to PW-12 (ASI Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -4 - Mahinder Singh). Parcel was seized vide memo Ex.P27. On 16.06.2011, Inspector Umed Singh (PW-14) received medical memo Ex.P10 regarding the death of Dara Ram. On receipt of this medical memo, he added offence under Section 302 IPC in the case. Thereafter, PW-14 (Inspector Umed Singh) alongwith other police officials reached the spot, where PW-13 (ASI Banni Singh) met him with other police officials, who handed over the case file to him (PW-14 Umed Singh). On 17.06.2011, PW-13 (ASI Banni Singh) alongwith Ram Kumar went to M.M. Medical College and Hospital, Mullana and prepared the inquest report Ex.P14 and then sent the corpse of Dara Ram-deceased to the mortuary for autopsy alongwith application Ex.P12. On 17.06.2011, at about 10.15 a.m. Dr. O.P. Aggarwal (PW-3) conducted the autopsy on the corpse of Dara Ram. Surinder Kumar and Panni (since deceased) accomplices of the respondents were arrested on 18.06.2011 by Inspector Umed Singh (PW-14). During interrogation, Surinder accomplice of the respondents suffered disclosure statement Ex.P3 from which he later, retracted and then suffered fresh disclosure statement Ex.P4 and got recovered the ice breaker from the place disclosed in the disclosure statement Ex.P4 supra. PW-14 (Umed Singh) prepared rough sketch of the poker (ice breaker), that was converted into parcel, which was sealed and seized vide recovery memo Ex.PC. Parcel was deposited with HC Ravinder Singh (PW-7) on 19.06.2011 by PW-14 (Inspector Umed Singh). This parcel was sent to Forensic Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -5 - Science Laboratory through Constable Ram Pal by HC Ravinder Singh (PW-7). During investigation, both the respondents (herein) were found innocent, therefore, they were not nominated as accused in the police report under Section 173 Code of Criminal Procedure (Cr.P.C. - for short). The applicant-State, thus, did not send the respondents for trial before the concerned Court for alleged commission of murder of Dara Ram. Therefore, after completion of investigation, Station House Officer, Police Station Industrial Area Saha instituted police report under Section 173 Code of Criminal Procedure (Cr.P.C. - for short) before the learned Illaqa Magistrate to the effect that it appeared that Surinder and Panni, alleged accomplices of the respondents, had committed offence punishable under Section 302 read with 34 IPC. Respondents (herein) were declared innocent. On presentation of police report, copies of documents as required under Section 207 Cr.P.C were furnished to the accomplices of the respondents and the case was later committed to the Court of learned Sessions Judge, Ambala and the case was entrusted to the learned Additional Sessions Judge, Ambala, who framed charge under Sections 302 read with 34 IPC against the accomplices of the respondents, whereto, they pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned. After the examination of ten witnesses, learned Additional Public Prosecutor before the learned trial Court moved an application Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -6 - under Section 319 Cr.P.C for summoning of respondents (Happy and Jai Pal) as accused and the same was accepted vide order dated 04.02.2012 and respondents (Happy and Jai Pal) were summoned as accused to face trial alongwith other accomplices Surinder and Panni. After appearance of the respondents before the learned trial Court charge under Section 302 read with 34 IPC against the respondents and their accomplices on 31.03.2012 was reframed, whereto, they pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned. At the trial, prosecution examined as many as 14 witnesses. PW-1 Ram Kumar @ Rinku, who is the complainant in this case reiterated the allegations levelled by him before the police in his statement Ex.P1, that have been reproduced in the earlier parts of this judgment. PW-2 Dr. Ram Kirti Garg deposed that on 16.06.2011, police moved an application Ex.P8 before him for seeking opinion regarding the fitness of the deceased-Dara Ram to make statement and, thereon, he gave opinion Ex.P9 to the effect Dara Ram was not fit to make statement. He sent ruqa Ex.P10 to the concerned police station regarding the death of Dara Ram-deceased. PW-3 Dr. O.P. Aggarwal deposed that on 17.06.2011, at about 10.15 a.m., he alongwith Dr. Balbir Kaur conducted the autopsy on the corpse of Dara Ram-deceased and found the following injuries on his person:
1. There was lacerated punctured wound ¾ cm x ½ cm on the Sunder Sham right side of chest. It was 8 cms from the mid line and 8 cms 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -7 - above the right nipple. Margins were ragged and irregular.
2. There was lacerated punctured wound ¾ cm x ½ cm on the right side of chest, 8 cms away from the mid-line and 10 cms below the nipple. Margins of the wound were irregular, ragged, torn.
3. Lacerated punctured wounds ¾ cm x ½ cm on the right side of abdomen, 5 cms below the lower end of sternum and it was 2 cms away from the mid-line.
4. There was lacerated punctured wound ¾ cm x ½ cm on left side of abdomen, 7 cms below the lower end of sternum.
5. There was lacerated wound ¾ cm x ½ cm, 11 cms above the wrist joint.
6. Abrasions were present on the right knee. No fracture was seen under the abrasions. They also found that on dissection, injury No.1 entered the chest cavity and, there was a lacerated wound of ¾ cm x ½ cm underneath the lung. Injury No.3 entered the abdomen and then had entered the liver. Injury No.4 had entered the abdomen. Clotted blood was present in the abdominal cavity as well as, in the chest cavity. He further deposed that as per their opinion the cause of death was injuries to his lung and liver which were ante mortem in nature and sufficient to cause death in the ordinary course of nature. He also testified that injuries Nos.1 to 5 were caused with blunt pointed weapon (sua) and injury No.6 could be the result of fall on the ground. He further testified that the time elapsed between injuries and death was about six hours and between death and autopsy was about 12 hours. He prepared the autopsy report and proved the copy, thereof, Ex.P11. Sunder Sham PW-4 EHC Ashok Kumar deposed that on 16.06.2011, he 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -8 - was handed over copies of the special reports/FIR of this case by ASI Kirpal Singh (PW-9) and those were delivered by him to the concerned authorities. PW-5 Ram Pal tendered in evidence his affidavit Ex.PB to the effect that he was handed over the case property of this case including ice breaker, for deposit, thereof, in the Forensic Science Laboratory and he handed over the receipt to PW-7 HC Ravinder Kumar, who had handed over the case property to him. PW-6 Dr. V.K. Goyal testified that on 16.06.2011, he was posted as Emergency Medical Officer in M.M. Hospital, Mulana and on that day, Dara Ram-deceased was admitted in that hospital with history of assault with an ice breaker at about 4.30 p.m. He further testified that the patient was vomiting with blood and was feeling difficulty in breathing. He further testified that he prepared the MLR and proved the copy, thereof, Ex.P15. He also testified that x-ray chest and x-ray abdomen erect and spine, as well as ultra sound abdomen were taken. According to him, probable duration of injuries was within two hours with a blunt weapon. PW-7 HC Ravinder Kumar tendered in evidence his affidavit Ex.PC to the effect on 17.06.2011, while he was posted as MHC of Police Station Industrial Area Saha, PW-14 Inspector Umed Singh, at about 9.30 p.m. vide rapat No.27 deposited the case property of this case and he sent the same to Forensic Science Laboratory through Constable Ram Pal, who on return deposited the receipt with him. PW-8 Surinder Kumar testified that on 17.06.2011, on the Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -9 - asking of police of Police Station Industrial Area Saha, he visited the place of occurrence and took the photographs. He also testified that he got prepared and developed the photographs and handed over the same to the police. PW-9 ASI Kirpal Singh testified that on 16.06.2011, he was posted in Police Station Industrial Area Saha and on that day, on receipt of ruqa Ex.P1, he recorded FIR Ex.P26 and endorsed the said ruqa Ex.P25 with his endorsement Ex.P23. He also testified that he sent the special reports to the learned Area Magistrate and higher police officers through PW-4 EHC Ashok Kumar PW-10 Constable Jagseer Singh testified that on 20.07.2011, he was posted as Draftsman in the office of Superintendent of Police, Ambala and on that day, on the asking of Investigating Officer, he visited the place of occurrence at Saha Chowk and took the rough notes, thereof, on demarcation of PW-14 (Inspector Umed Singh) and later, on the basis of the said rough notes, he prepared the rough scaled site plan Ex.P24. PW-11 Inspector Amar Singh testified that on 27.08.2011, he prepared the final report under Section 173 Cr.P.C., after completion of investigation. PW-12 E/ASI Mahinder Singh testified that on 16.06.2011, he was posted in Police Station Industrial Area Saha and on that day, he alongwith ASI Banni Singh (PW-13), after the receipt of ruqa from doctor reached M.M. College and Hospital, Mullana, where ASI Banni Singh (PW-13) obtained the opinion of the concerned doctor Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -10 - regarding the fitness of Dara Ram-deceased to make statement. He further testified that ASI Banni Singh (PW-13) recorded the statement Ex.P1 of Ram Kumar-complainant, whereon, he made his endorsement Ex.P25 and handed over the same to him (PW-12) for delivery, thereof, in the police station for registration of FIR. He further testified that after reaching the police station, he got recorded the FIR Ex.P26 and after the registration of FIR, he reached the place of occurrence with copy of the FIR and ruqa and handed over those to ASI Banni Singh (PW-13) at the spot. He further testified that ASI Banni Singh (PW-13) lifted the blood stained earth from the place of occurrence, that was put into a plastic box, which was sealed into a parcel, that was seized vide memo Ex.P26 and seal after use was handed over to him (PW-12). PW-13 ASI Banni Singh conducted the investigation of this case and deposed on the lines of investigation. PW-14 Inspector Umed Singh got conducted the autopsy on the corpse of the deceased and also conducted the investigation of this case and deposed on the lines of investigation. After the close of prosecution evidence, respondents and their accomplices were examined under Section 313 Cr.P.C, wherein, they denied the allegations of the prosecution, pleaded innocence and false implication in the case. They, gave their own versions that they were falsely implicated in the present case due to their old enmity with the family of the deceased-Dara Ram and that nothing had happened in the manner alleged. Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -11 - Respondents and their accomplices were called upon to enter in defence, but they closed the same without examining any witness in defence. After hearing both the sides, the learned trial Court vide impugned judgment dated 16.01.2013, acquitted both the respondents of the offence punishable under Section 302 read with 34 IPC, wherefor, charge was framed against them. It may be mentioned here that Panni accomplice of the respondents died during the pendency of the trial and case against him stood abated. However, Surinder acomplice of the respondents was convicted for commission of offence punishable under Section 302 read with 34 IPC vide judgment of conviction dated 16.01.2013 and vide order of sentence dated 21.02.2013, he was sentenced to undergo imprisonment for life with a minimum period of 20 years without remission and to pay a fine of `5000/- and in default of payment of fine to further undergo simple imprisonment for a period of six months. Aggrieved, thereagainst, State of Haryana has filed the present application for grant of special leave to appeal seeking reversal of the impugned judgment and for convicting and sentencing respondents for the offences for which they were charged by the learned trial Court. We have heard the learned Additional Advocate General, Haryana for the applicant-State and perused the record with his assistance. Learned Additional Advocate General, Haryana for the Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -12 - applicant-State contended that the learned trial Court committed grave error in acquitting the respondents by not placing reliance upon the testimony of PW-1 (Ram Kumar @ Rinku). He further contended that there is sufficient evidence on record to prove the guilt of respondents, therefore, they should have been convicted of the charge framed against them by the learned trial Court. He also contended that the learned trial Court fell in grave error in not accepting the oral dying declaration, that was made by the deceased-Dara Ram to PW-1 (Ram Kumar @ Rinku). He also contended that oral dying declaration alone could be made basis of conviction of respondents by the learned trial Court, as the same inspires confidence. He also placed reliance upon Atbir v. Government (NCT of Delhi; 2010 (9) SCC 1 and contended that the dying declaration was true and voluntary and, therefore, the conviction upon the respondents could be based by the learned trial Court simply on the basis of that dying declaration made by the deceased-Dara Ram to PW-1 (Ram Kumar @ Rinku). We have given our thoughtful consideration to the contentions raised by the learned Additional Advocate General, Haryana for the applicant-State, but find no merit, therein, as at the time of presentation of police report under Section 173 Cr.P.C. before the learned Ilaqa Magistrate, the Station House Officer of the concerned police station, who is the officer of the applicant-State came to the conclusion, that both the respondents were innocent. Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -13 - When once the officers of the applicant-State had, during investigation, found the respondents innocent, then the applicant- State cannot be permitted to make somersault by not contending that the murder of Dara Ram-deceased was committed by respondents (herein), after forming common intention with their accomplices, Panni (since deceased) and Surinder, who has been convicted in this case. It may be mentioned here that the evidence against the respondents, is oral dying declaration of the deceased allegedly made by him to PW-1 (Ram Kumar @ Rinku). Except this alleged oral dying declaration of the deceased-Dara Ram with PW-1 (Ram Kumar @ Rinku), there is no other direct or circumstantial evidence against them to connect them with the murder of Dara Ram- deceased. Version of the applicant-State to the effect that the deceased-Dara Ram suffered oral dying declaration before PW-1 (Ram Kumar @ Rinku), to the effect that respondent No.1 (Happy) had caught hold of him and respondent No.2 (Jai Pal) had also given him slap and fist blows, is after-thought. This oral dying declaration of the deceased could be believed only, if he would have been in senses at the time when he was being taken to hospital for treatment in ambulance by PW-1 (Ram Kumar @ Rinku). Indeed, Dara Ram-deceased in the hospital could not regain consciousness. He remained unconscious throughout in the hospital till his death. If, he would have been in senses, in that event, his statement could be recorded by ASI Banni Singh (PW-13) for Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -14 - registering FIR in the case. There are the testimonies of PW-6 (Dr. V.K. Goyal) and PW-2 (Dr. Ram Kirti Garg) to the effect that after his admission in the hospital, deceased-Dara Ram did not gain consciousness. If, Dara Ram-deceased would have been in senses in the hospital, in that event, these doctors would have certified that the deceased-Dara Ram was in a fit state of mind to make a statement regarding the incident. Since this was not certified by PW- 6 (Dr. V.K. Goyal) and PW-2 (Dr. Ram Kirti Garg), the statement of Dara Ram-deceased was not recorded by the police, as already observed. The oral dying declaration, which is being ascribed to the deceased-Dara Ram by PW-1 (Ram Kumar @ Rinku) cannot be believed at all, as it has not been proved on the record through the deposition of PW-1 (Ram Kumar @ Rinku), that deceased-Dara Ram was in a fit state of mind to suffer oral dying declaration. This alleged oral dying declaration of the deceased-Dara Ram made before PW-1 (Ram Kumar @ Rinku) could be upheld and affirmed only, if he would have been declared in a fit state of mind by both the doctors PW-6 (Dr. V.K. Goyal) and PW-2 (Dr. Ram Kirti Garg). It may be mentioned here that the occurrence took place on 16.06.2011 at about 4.00 p.m. and the deceased-Dara Ram was admitted in the hospital at about 4.30 p.m. Immediately after his admission, he was declared unfit to make statement. No evidence has been collected by the police by putting questions to PW-2 (Dr. Ram Kirti Garg), as to whether the deceased-Dara Ram was in a fit Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -15 - state of mind to make a valid statement between 4.00 p.m. to 4.30 p.m., when he was travelling with PW-1 (Ram Kumar @ Rinku) in ambulance. In that event alone the alleged oral dying declaration suffered by the deceased-Dara Ram before PW-1 (Ram Kumar @ Rinku) could be relied upon for fastening the respondents with liability of commission of murder of the deceased-Dara Ram, after forming common intention with their accomplices. Even, if the alleged oral dying declaration, is assumed for the sake of argument to be correct, that, too, does not make out a case of murder against the respondents, as according to PW-1 (Ram Kumar @ Rinku), they were not carrying any weapon and Jai Pal (respondent No.2) is ascribed slap and fist blows, those injuries were not found present on his body. There were multiple stab wounds on the chest and abdomen of the deceased-Dara Ram. These could be ascribed to the respondents only, if they would have been carrying such weapons. The deceased-Dara Ram remained unfit to make statement uptill 10.30 p.m., as can be seen from the record. In these circumstances, possibility cannot be ruled out that the respondents were falsely implicated in this case. When the police officers realised this falsity in the version given by PW-1 (Ram Kumar @ Rinku), they declared respondents innocent and kept them in column No.2 of the police report under Section 173 Cr.P.C., that was submitted only against the accomplices of the respondents. It may be mentioned here that respondent No.2 (Jai Pal) is the brother of Surinder (convict), while respondent No.1 (Happy) is Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRM-A-353-MA of 2013 -16 - the nephew of Surinder (convict). The learned trial Court rightly held that the respondents are not connected with the alleged commission of murder of Dara Ram-deceased. The learned trial Court also rightly concluded that the applicant-State has failed to prove the case against both the respondents and rightly accorded them benefit of doubt and acquitted them of the charge framed against them in the case, vide impugned judgment. So, there is no illegality or impropriety in the impugned judgment of acquittal of respondents and reversal, thereof, is not justified especially when it is well settled that when even two views are possible, appellate court should not reverse the judgment of acquittal merely because the other view is possible. Accordingly, special leave to appeal is declined to the applicant and CRM-A-353-MA of 2013 is dismissed. However, this judgment shall not be construed, as an expression of opinion in the appeal filed by the convict-Surinder and the same shall be decided on the basis of evidence and material on record. (S.P. BANGARH) (S.S. SARON) JUDGE JUDGE August 12, 2013 Sham Sunder Sham 2013.08.30 10:49 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh