Punjab And Haryana High Court · 2010

Judgment

1. Savitri Devi, widow of deceased Pala Ram, has filed this appeal along with the instant application seeking leave to appeal against the judgment dated 20.11.2009, passed by the court of Additional Sessions Judge, Kaithal, whereby accused Randhir Singh alias Kala, Sohan Lal, Mehar Singh, Shanti Bhushan, Dr. Vijay Pal and Bharat Bhushan (respondents No.2 to 7 herein) have been acquitted of the charges framed against them. This appeal is barred by limitation and the applicant has also filed an application (Crl. Misc. No. 50647 of 2010) for condoning the delay of 223 days in filing the appeal.

2. After hearing learned counsel for the applicant and for the reasons stated in the application, which is duly supported by an affidavit, delay of 223 days in filing the appeal is condoned and we have heard Crl. Misc. No. A-1083-MA of 2010 -2-

learned counsel for the applicant on merits.

3. In this case, the FIR was registered on the basis of the statement of Bir Bhan (brother of deceased Pala Ram), recorded by the police in the night on 30.6.2007, wherein he stated that 4-5 days prior to the occurrence, his brother Pala Ram, a resident of village Kheri Raiwali, had taken a flour mill on lease in village Bandrana, where he used to go daily in the morning on his motor cycle bearing registration No. HNL-1645, Make Hero Honda and was used to return home at about 7.00/8.00 PM. On 30.6.2007, complainant Bir Bhan was working in the fields of one Raju son of Raghbir Singh. At that time, he received a telephonic call that his brother Pala Ram was lying dead on the road near the house of Risala son of Ram Chander. On receipt of this information, the complainant reached the place of occurrence and noticed that there were cut marks on the right cheek and near the right ear of his brother, besides injury marks on his left eye and neck. The injuries on the cheek and ear were bleeding. The complainant further stated that a wooden Binda (wooden portion of spade) along with a helmet having 123 written on it and plastic chappals was lying near the dead body of his brother. He further stated that he came to know that 2/3 boys had caused injuries on the person of his brother and thereafter, they left the place of occurrence towards village Solu Majra on a motor cycle, which was having a silencer making huge noise. It was also disclosed by the complainant that the incident had taken place at about 8.30/9.00 PM and his brother Pala Ram had been killed by causing injuries by unknown boys with Crl. Misc. No. A-1083-MA of 2010 -3- the help of Binda and some other weapons.

4. On 1.7.2007, the police prepared inquest report, the dead body was sent to General Hospital, Kaithal, for post mortem examination. The blood stained earth was lifted from the place of occurrence and was taken into possession. A wooden Binda smeared with blood, a helmet along with a pair of chappals, and a motor cycle bearing registration No. HNL-1645, which were lying on the spot, were taken into possession vide separate memos.

5. On 2.7.2007, accused Randhir Singh alias Kala was arrested from his residence. On the same day, accused Sohan Lal was arrested from village Solu Majra. During interrogation, both the accused suffered separate disclosure statements confessing their involvement in the crime. On

3.7.2007, both these accused demarcated the place of occurrence, regarding which separate memos were prepared.

6. On 10.7.2007, accused Mehar Singh was arrested and during interrogation, in pursuance of his disclosure statement, he got recovered motor cycle, make Yamaha, bearing registration No. DL-4SH-8185 from the fields of village Jajanpur. He also demarcated the place of occurrence, regarding which memo was prepared.

7. On 30.7.2007, accused Shanti Bhushan was arrested from Cheema town and he produced Photostat copy of a medical certificate regarding his admission in Soni Hospital, Doraha, District Ludhiana, from

30.6.2007 to 2.7.2007. During interrogation, in pursuance of his disclosure Crl. Misc. No. A-1083-MA of 2010 -4- statement, accused Shanti Bhushan got recovered motor cycle, make Hero Honda, bearing registration No. PB-10BK-3670, along with its Registration Certificate, from the house of Kapil Sharma. He also demarcated the place of occurrence, regarding which separate memo was prepared. On the next day, i.e. on 31.7.2007, during further interrogation, he suffered disclosure statement regarding preparation of forged medical certificate through his brother accused Bharat Bhushan, after paying ` 30,000/-. Accordingly, on

20.8.2007, the police visited Soni Hospital, Doraha and served a notice on accused Dr. Vijay Pal, who was arrested on 21.8.2007 and during interrogation, he suffered disclosure statement confessing his involvement in the crime regarding preparation of false record. On 9.10.2007, accused Bharat Bhushan surrendered in the court and he was arrested with the permission of the court. On 10.10.2007, during interrogation, he suffered disclosure statement to the effect that he had destroyed the original certificate of admission issued by accused Dr. Vijay Pal.

8. After completion of investigation, challan was filed against all the accused, except accused Bharat Bhushan, against whom supplementary challan was filed. Accused Randhir Singh, Sohan Lal and Mehar Singh were charge sheeted for the offence under Section 302 read with Section 34 IPC, whereas accused Vijay Pal and Bharat Bhushan were charge sheeted for the offences under Sections 420/468/471/120-B IPC and accused Shanti Bhushan was charged for the offence under Section 302/420/468/471/120-B IPC. All the accused did not plead guilty to the charges framed against them Crl. Misc. No. A-1083-MA of 2010 -5- and claimed trial.

9. In support of its case, the prosecution examined as many as nineteen witnesses and after tendering into evidence reports of FSL, the prosecution evidence was closed.

10. In their statements under Section 313 Cr.P.C., all the accused denied the allegations appearing against them in the prosecution evidence and pleaded innocence and false implication in the case. Accused Dr. Vijay Pal also pleaded that he has been falsely implicated in this case on the basis of inadmissible confessional statement of co-accused before the police and was never associated in the incident and as a matter of fact, accused Shanti Bhushan, who was brought by his brother accused Bharat Bhushan, was admitted in the hospital on 30.6.2007, and he remained under his treatment till 2.7.2007. In their defence, the accused did not lead any evidence.

11. The trial court, after considering the evidence and the documents available on the record, has come to the conclusion that the prosecution has failed to prove its case against the accused beyond reasonable shadow of doubts, therefore, they have been acquitted of the charges. Against the said judgment of acquittal, widow of the deceased has filed this appeal with the instant application for grant of leave to appeal.

12. We have heard learned counsel for the applicant and have gone through the impugned judgment.

13. The case of the prosecution is based upon circumstantial evidence. After considering and appreciating the entire evidence in detail, Crl. Misc. No. A-1083-MA of 2010 -6- the learned trial court has held that the complainant Bir Bhan, while appearing in the witness box as PW.4, had made certain improvements regarding the number of assailants, who allegedly caused injuries to his deceased brother. It has been observed that PW.5 Sohan Lal, nephew of deceased, claims that on the day of occurrence, at about 6.00/7.00 PM, he had seen accused Randhir Singh, Shanti Bhushan, Sohan Lal, Mehar Singh and Vicky (since proclaimed offender) riding on two motor cycles, while going towards village Kheri Raiwali, and after some time thereof, he came to know that his uncle (Chacha) Pala Ram had been murdered and at the spot, one cyclist told him that the assailants, who had caused injuries to the deceased, had fled away towards village Solu Majra on two separate motor cycles. The learned trial court has further observed that this witness, who admittedly was present at the time of recording of statement of the complainant by the police, did not disclose that the assailants were riding two motor cycles or he had seen them while talking to each other for elimination of the deceased. This conduct of this witness has been held to be highly improbable and it has been held that his statement is result of manipulations and deliberations. The alleged motive that deceased Pala Ram had incurred displeasure of Meena Devi, whose paramour is Vicky (since proclaimed offender), has been held to be weak, and the alleged conspiracy between said Meena Devi and Vicky has not been proved. Furthermore, it has also not been established that all the accused are associates of said Vicky. Thus, it has been held that investigation in this Crl. Misc. No. A-1083-MA of 2010 -7- case is altogether faulty and the genesis of the occurrence could not be established by the prosecution. PW.1 Desh Raj, the alleged witness to the extra judicial confession suffered by accused Mehar Singh, and PW.7 Faquiria, who had allegedly seen the assailants on two motor cycles, did not support the prosecution version and they turned hostile. Regarding the involvement of accused Bharat Bhushan and Dr. Vijay Pal to the extent that they helped accused Shanti Bhushan to procure a medical certificate to prove the plea of alibi, it has been held that both these accused have been involved in this case on the basis of the alleged statement of accused Shanti Bhushan made to the police, which is inadmissible in evidence being hit by Section 25 of the Indian Evidence Act, 1872. In the said statement, accused Shanti Bhushan confessed his involvement in the crime and preparation of forged certificate through his brother Bharat Bhushan on payment of ` 30,000/- from Dr. Vijay Pal. Moreover, the alleged confessional statements of accused Bharat Bhushan and Dr. Vijay Pal are also inadmissible in evidence, as on the basis of their statements, no recovery has been effected and it has not been proved that the certificate issued by Dr. Vijay Pal, or the medical record produced by him, is a forged document. The most important aspect of the case, as discussed by the trial court, is that PW.18 Dr. R.D. Chawla, who conducted post mortem examination on the dead body of the deceased, clarified that two injuries on the person of the deceased were incised wounds and could only be caused by sharp edged weapon and may not be caused with Binda, recovered in this case, which was not a sharp Crl. Misc. No. A-1083-MA of 2010 -8- edged weapon. This witness further clarified that injuries No.3 to 6 on the person of the deceased could be caused by fall from a motor cycle due to slip of motor cycle or due to accident. It has been further held that since the investigating agency has not investigated the matter regarding the registration numbers of the motor cycles, which were allegedly used by the assailants during the commission of the crime, therefore, the motor cycles recovered in this case, cannot be connected with the present case.

14. After perusing the impugned judgment and considering all the aforesaid factors, we are of the opinion that the chain of circumstantial evidence is not complete in this case and the entire circumstantial evidence led by the prosecution, if taken cumulatively, does not form a complete chain, on the basis of which a definite conclusion, pointing towards the guilt of the accused, can be drawn. In order to convict an accused, the circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. On the basis of the evidence led by the prosecution in this case, we are unable to arrive at such a conclusion. Thus, in our opinion, the prosecution has failed to prove its case against the accused beyond shadow of a reasonable doubt and the view taken by the trial court is one of the possible view, which can be taken from the evidence led by the prosecution in the instant case. It cannot be said that the view taken by the trial court, while acquitting respondents No.2 to 7, is totally Crl. Misc. No. A-1083-MA of 2010 -9- perverse, which cannot be taken, at all, in the given circumstances. It is settled law that the judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so. It has been held by the Supreme Court in State of Rajasthan v. Sohan Lal and others, (2008) 2 SCC (Cri) 53 that the High Court should interfere in the judgment of acquittal only when it finds that the evidence on record clearly and absolutely indicate the guilt of the accused. The High Court should not interfere merely on the basis that from the evidence on record a different view as to the trial Court is possible. Thus, we do not find any ground to grant leave to appeal.

15. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE December 09, 2010 ( JORA SINGH ) JUDGE