Crl.Misc.No.1017-MA of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: 30.11.2010 (I) Crl.Misc.No.1017-MA of 2010 State of Haryana ... Applicant vs. Sunil and others . .. Respondents (II) Crl.Misc.No.1065-MA of 2010 Riyasat Ali ... Applicant vs. State of Haryana and others ... Respondents CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.G.S.Chahal, Addl.AG, Haryana, for the applicant, in Crl.Misc.No.1017-MA of 2010. Mr.Manish Soni, Advocate, for the applicant in Crl.Misc.No.1065-MA of 2010. ... JORA SINGH, J. Vide this common judgment, we propose to dispose of Crl.Misc.No.1017-MA of 2010 under Section 378(3) Cr.P.C. moved by the State of Haryana through Public Prosecutor and Crl.Misc.No.1065-MA of 2010 under Section 378(4) Cr.P.C. moved by Riyasat Ali for grant of leave to appeal against the judgment of acquittal dated 8.4.2010 passed by Sessions Judge, Yamuna Nagar, arising out of FIR No. 90 dated 10.7.2009 under Sections 302/34 IPC, Police Station Khizrabad. Crl.Misc.No.1017-MA of 2010 (O&M) 2 By the said judgment, accused, namely, Sunil Kumar, Mukesh Kumar and Nar Bahadur (hereinafter referred to as `the respondents’) were acquitted of the charge levelled against them. Along with application under Section 378(3) Cr.P.C., application under Section 5 of the Limitation Act was moved to condone the delay of 40 days in filing the appeal, whereas along with application under Section 378(4) Cr.P.C., application under Section 5 of the Limitation Act was moved to condone the delay of 81 days in filing the appeal. In view of the allegations in the applications, we are of the opinion that there is no intentional or deliberate delay in filing the appeal. Delays of 40 days and 81 days, respectively, in filing the appeal as well as applications for grant of leave to appeal are condoned. Applications are, accordingly, allowed. Prosecution story, in brief, is that on 10.7.2009, Inspector Anil Kumar along with police party while on petrol duty was present at T-Point of Village Bahadurpur, then received a telephonic message that Sarafat Ali received injuries. After receipt of message, he had reached at the spot and came to know that injured had been removed to Khizrabad Hospital. After visiting Khizrabad Hospital, then came to know that injured was referred to General Hospital, Jagadhari. He had gone to General Hospital, Jagadhari, where he received ruqa from the doctor that the injured was brought dead in the hospital. Riyasat Ali, brother of the deceased, was present in the hospital. Then his statement was recorded. Allegation of Riyasat Ali was that they were three brothers. He was the eldest. Sarafat Ali was younger to him. Gulsher was the youngest brother. He along with Naresh Walia was running Shivalik Restaurant, which was managed by his brother Sarafat Ali Crl.Misc.No.1017-MA of 2010 (O&M) 3 as Manager. Sunil Kumar, respondent, was working as a cook in the restaurant. On the intervening night of 9/10.7.2009 at about 11.30 PM, he received a telephonic message from Sunil Kumar that 6/7 persons came on Maruti Car No.DL-02-L-9686 and one Motorcycle Bajaj Platina. Sarafat Ali was requested to give them a room on rent to consume liquor but Sarafat Ali refused to oblige them. Then Sarafat Ali was caused injuries with dandas and swords. On receipt of information from Sunil Kumar, he had gone to the restaurant. Sarafat Ali was found lying in verandah of the restaurant with injuries on his person. Blood was oozing from his nose, ears and head. Then he along with Sunil Kumar had shifted Sarafat Ali to Khizrabad Hospital by his car. Doctor after checking, referred Sarafat Ali to General Hospital, Jagadhari. Sarafat Ali was brought to General Hospital, Jagadhari, where he was declared dead. Statement of Riyasat Ali after making endorsement was sent to concerned police station, on the basis of which, formal FIR was recorded. Inquest report was prepared. Dead body was handed over to the official for postmortem examination. Sunil Kumar was arrested in this case and was interrogated. On interrogation, he disclosed that he along with co-accused, namely, Mukesh Kumar and Nar Bahadur, has murdered Sarafat Ali. In view of the statement of Sunil Kumar, Mukesh Kumar and Nar Bahadur were arrested in this case. Both were interrogated on 11.7.2009 and suffered disclosure statements separately. In pursuance of disclosure statements, they got recovered dandas from the specified places. Recovered dandas were taken into police possession vide separate memos attested by the witnesses. After completion of investigation, challan was presented in Court. Crl.Misc.No.1017-MA of 2010 (O&M) 4 Respondents were charged under Sections 302/34 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined 15 witnesses. PW1 Dr.Deepika Gupta stated that she along with Dr. Chhabra has conducted postmortem examination on the dead body of Sarafat Ali on 10.7.2009. Ex.PA is the copy of postmortem report. PW2 Dr. A.K.Tyagi stated that on 10.7.2009, dead body of Sarafat Ali was received in the mortuary. Then ruqa was sent by him. PW3 SI Raghbir Singh stated that on 10.7.2009, on receipt of ruqa, he recorded formal FIR (Ex.PD). PW4 EHC Virender Kumar has delivered special report to the Ilaqa Magistrate on 10.7.2009. PW5 EHC Mulak Raj has prepared scaled site plan (Ex.PE) with its correct marginal notes. PW6 Constable Suresh Kumar, PW7 Constable Ram Kumar and MHC Jaswinder Singh tendered their affidavits (Ex.PW6/A, Ex.PW7/A and Ex.PW8/A), respectively. PW9 Farmeen Khan has identified dead body of Sarafat Ali. PW10 Riyasat Ali is the complainant and stated that on receipt of information from Sunil Kumar, he had gone to the restaurant, where Sarafat Ali was found lying in the verandah with injuries on his person. He along with Sunil Kumar had shifted Sarafat Ali to Khizrabad Hospital, then to General Hospital, Jagadhari. In view of the statement of Sunil Kumar, other respondents were arrested. In pursuance of disclosure statements, Mukesh Kumar and Nar Bahadur got recovered dandas from the specified places. Crl.Misc.No.1017-MA of 2010 (O&M) 5 PW11 SI Jai Pal Singh stated that respondents were interrogated in his presence by Inspector Yash Pal. Respondents Nar Bahadur and Mukesh Kumar suffered disclosure statements and in pursuance of disclosure statements got recovered dandas from the specified places. PW12 ASI Subhash Chand stated that dead body was handed over to him for postmortem examination. PW13 Inspector has initially investigated the case. PW14 Naresh Kumar stated that he was going towards Shivalik Restaurant on receipt of information regarding the occurrence and had seen Mukesh Kumar and Nar Bahadur while carrying dandas in the light of motorcycle. Further stated that Mukesh Kumar and Nar Bahadur got recovered dandas in pursuance of their disclosure statements. PW15 Inspector Yash Pal has also investigated this case. After close of the prosecution evidence, statements of respondents were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of Sunil Kumar was that during night time on 9.7.2009, 6/7 unknown persons came in a maruti car and one motorcycle. Sarafat Ali was directed to give them one room on rent to take liquor but he refused to oblige them. Then unknown assailants had attacked Sarafat Ali and after causing injuries had fled away from the spot. On telephone, information was given to Riyasat Ali. Riyasat Ali came at the spot and they had shifted the injured firstly to Khizrabad Hospital, and then to General Hospital, Jagadhari, where police came and recorded the statement. Crl.Misc.No.1017-MA of 2010 (O&M) 6 Defence version of Mukesh Kumar and Nar Bahadur was that they have no connection with Sunil Kumar. After hearing learned Public Prosecutor for the State, learned counsel for the respondents and from the perusal of evidence on the file, respondents were acquitted of the charge levelled against them. Against the judgment of acquittal, separate appeals were filed by the State and the complainant. We have heard learned counsel for the State-applicant, learned counsel for the complainant and have gone through the file. Learned counsel for the State and complainant argued that occurrence was on the intervening night of 9/10.7.2009. At the time of occurrence, Sunil Kumar was present. Intimation was given to the complainant and the police. After the statement of complainant, Sunil Kumar was arrested and interrogated. In view of the statement of Sunil Kumar, Mukesh Kumar and Nar Bahadur were arrested in this case. After the occurrence, Mukesh Kumar and Nar Bahadur were seen while carrying dandas by PW14 Naresh Kumar, who was the partner with the complainant. Mukesh Kumar and Nar Bahadur suffered disclosure statements and got recovered dandas from the specified places. Before the occurrence, Sunil Kumar had embezzled payment from Shivalik Restaurant owned by the complainant and Naresh Kumar. There was allegation of embezzlement against Sunil Kumar. So, respondents had the motive to commit the crime. Evidence on the file was not properly scrutinized. But after going through the evidence on file, we are of the opinion that evidence on file was rightly scrutinized by the trial Court. No reason to grant leave to appeal. Crl.Misc.No.1017-MA of 2010 (O&M) 7 As per evidence on the file, Riyasat Ali and Naresh Kumar were the partners in Shivalik Restaurant, whereas Sarafat Ali (deceased) was the Manager. On the intervening night of 9/10.7.2009, Sarafat Ali was present at the Restaurant. Sunil Kumar, one of the respondents, was serving as a Cook. During night time, 6/7 assailants came in a maruti car and one motorcycle. Sarafat Ali was requested to give them one room on rent to take liquor. Sarafat Ali refused to oblige them. Then unknown assailants armed with dandas and swords gave injuries to Sarafat Ali. Sunil Kumar on telephone informed Riyasat Ali about the occurrence and on receipt of telephonic message, Riyasat Ali came at the spot. Sarafat Ali was found lying in the verandah with injuries on his person. Sarafat Ali was shifted to Khizrabad Hospital by Riyasat Ali and Sunil Kumar. From Khizrabad Hospital, patient was referred to General Hospital, Jagadhari. Sunil Kumar and Riyasat Ali had shifted Sarafat Ali to General Hospital, Jagadhari, where doctor declared him brought dead. Qua occurrence at about 11.30 PM, intimation was also given to the police. On 10.7.2009, Inspector Anil Kumar while on petrol duty was present near T-Point of Village Bahadurpur, then received telephonic message regarding the present occurrence and on receipt of information, he had gone to the spot and came to know that injured was firstly shifted to Khizrabad Hospital and thereafter to General Hospital, Jagadhari. IO had gone to General Hospital, Jagadhari, where dead body of Sarafat Ali was lying. In General Hospital, Jagadhari, IO had recorded statement of Riyasat Ali, on the basis of which, formal FIR was recorded. On 10.7.2009, Sunil Kumar, who was serving as a Cook with the complainant, was arrested and on interrogation, he suffered disclosure Crl.Misc.No.1017-MA of 2010 (O&M) 8 statement that he along with Mukesh Kumar and Nar Bahadur had committed the crime. In view of the statement of Sunil Kumar, Mukesh Kumar and Nar Bahadur were arrested by the police on the same day but on 11.7.2009, they were interrogated by the police. Both the respondents suffered disclosure statements separately and in pursuance of disclosure statements, got recovered dandas from the specified places, but dandas were not blood stained. No evidence on the file that dandas were sent to the laboratory for report as to whether dandas were stained with blood and blood group of the blood found on the dandas was tallying with the blood group of the deceased. Mukesh Kumar and Nar Bahadur were arrested on 10.7.2009 in view of the statement of co-accused, namely, Sunil Kumar. Disclosure statements alleged to have been suffered by both of them on 11.7.2009 and recovery of dandas was on 14.7.2009. No explanation why recovery of dandas was on 14.7.2009 when disclosure statements were suffered on 11.7.2009. Statement of Sunil Kumar, one of the respondents, to implicate Mukesh Kumar and Nar Bahadur before the police is not admissible in evidence. When statement of Sunil Kumar, respondent, to implicate other respondents is without any evidentiary value, then first circumstance to connect the respondents with the crime was rightly ignored by the trial Court. As per PW10 Riyasat Ali, respondents were arrested on 10.7.2009 and were interrogated on 11.7.2009 but PW15 Inspector Yash Pal stated that respondents were arrested on 11.7.2009 and were interrogated on 12.7.2009. So, story regarding disclosure statements and recovery of dandas was found to be doubtful and was rightly ignored. Crl.Misc.No.1017-MA of 2010 (O&M) 9 Second circumstance to connect the respondent with the crime is the statement of PW14 Naresh Kumar but statement of Naresh Kumar was also rightly ignored because he was the partner with the complainant. According to prosecution story, on receipt of information, he was going towards Shivalik Restaurant, then had seen Mukesh Kumar and Nar Bahadur while carrying dandas. Firstly, Naresh Kumar was the partner with the complainant. So, he was very much interested in the success of this case. Secondly, Mukesh Kumar and Nar Bahadur were not earlier known to Naresh Kumar. Immediately after the occurrence, Sarafat Ali was shifted by the complainant and Sunil Kumar to Khizrabad Hospital and from there, to General Hospital, Jagadhari. On receipt of information regarding the occurrence, Naresh Kumar was going towards the restaurant, but when the injured had already been shifted to the hospital, then he should have gone to the hospital instead of going to the restaurant. Recovery of dandas was also in the presence of Naresh Kumar. If as per story, 6/7 assailants had gone to the restaurant and Sarafat Ali had refused to oblige them and the assailants, including the respondents, had caused injuries to Sarafat Ali, then after causing injuries, there was no idea to remain present near the restaurant armed with dandas. After causing injuries, respondents were expected to run away from the spot when they had two vehicles, i.e., one maruti car and one motorcycle. Motive to commit crime was that Sunil Kumar was inimical towards the deceased because Sunil Kumar had embezzled the amount of Shivalik Restaurant. In case, Sunil Kumar had embezzled the amount one month earlier to the occurrence and this fact was in the notice of complainant party, then Sunil Kumar could easily be removed from the job Crl.Misc.No.1017-MA of 2010 (O&M) 10 of Cook. On one hand, Sunil Kumar had embezzled the payment of Shivalik Restaurant and on the other hand, he was allowed to continue as Cook. Story regarding embezzlement was also rightly ignored being an after thought. After the occurrence, Sarafat Ali was shifted to Khizrabad Hospital but no doctor from Khizrabad Hospital was joined in the investigation of this case. PW10 Riyasat Ali had informed the police on telephone regarding the present occurrence but no DDR was recorded. IO also admitted that while present near the turning of Village Bahadurpur, information was received regarding the occurrence. Then he had gone to the spot and came to know that injured had already been shifted to Khizrabad Hospital and from there to General Hospital, Jagadhari. Ultimately, he had gone to General Hospital, Jagadhari, where he received ruqa. In General Hospital, Jagadhari, Sunil Kumar was also present with the complainant but statement of Sunil Kumar was not recorded for the reasons best known to the prosecution. In view of all discussed above, we are of the opinion that evidence on the file was rightly scrutinized by the trial Court. Trial Court has rightly taken the possible view as per evidence on the file. Judgment of acquittal is to be set aside if the same is perverse and evidence on the file is misread. Judgment of acquittal is not to be set aside simply on the ground that Appellate Court was inclined to take different view than the view taken by the trial Court. When two views are possible, then the view favourable to the accused is to be accepted. Crl.Misc.No.1017-MA of 2010 (O&M) 11 For the reasons recorded above, leave to appeal is declined. Accordingly, Crl.Misc.No.1017-MA of 2010 and Crl.Misc.No. 1065-MA of 2010 are dismissed. ( JORA SINGH ) JUDGE 30.11.2010 ( SATISH KUMAR MITTAL ) pk JUDGE