Crl.Misc.No.M-1569 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No. M-1569 of 2009 Date of decision: 18.11.2009 Om Parkash ... Petitioner versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Akshay Bhan, Advocate, for the petitioner. Mr.P.M.Anand, Addl.AG, Haryana. ... JORA SINGH, J. Om Parkash filed this petition under Section 482 Cr.P.C. for quashing of FIR No.730 dated 10.12.2001 under Sections 302/120-B/34 IPC and Sections 25/54/59 of the Arms Act, registered at Police Station Civil Lines, Hisar. FIR No.730 dated 10.12.2001 was registered in view of the statement of Jai Bhagwan Singh on the allegation that on 10.12.2001 in the morning, Jaipal (deceased) had gone to Taxi Stand near Fountain Chowk, because Jaipal was plying a Contessa Car as a taxi. At 8.30 AM, he (Jai Bhagwan Singh) had also gone to the Taxi Stand to meet Jaipal. He was present with Jaipal. In the meantime, four young boys on two motorcycles (two boys on each motorcycle) came there. Jaipal was requested by the boys to accompany them but Jaipal had refused to accompany them. Then one young boy took out his pistol and fired a shot, hitting near the left ear of Jaipal. After firing a shot, all the four boys had fled away from the spot with pistol. On receipt of firearm injury, Jaipal had died on the spot. Crl.Misc.No.M-1569 of 2009 2 Jaipal (deceased) and Subhash were challaned on 15.8.2000 in the murder case of Om Parkash. Both were on bail. Kamlesh widow of Om Parkash used to say that she is to take revenge of murder of her husband. She is related to Subhash Kohli. Jaipal was got murdered by Kamlesh widow of Om Parkash with the connivance of Subhash Kohli and his gang. Notice of motion was issued. State filed reply. Learned counsel for the petitioner argued that FIR No.730 dated 10.12.2001 was registered in view of the statement of Jai Bhagwan Singh. Jaipal is the deceased. 8 accused were challaned in this FIR, but 7 were acquitted of the charges levelled against them vide judgment dated 9.9.2008 (Annexure P-10), whereas 8th accused, namely, Sanjay was acquitted of the charges levelled against him vide order dated 19.5.2008 (Annexure P-9). According to the story, present petitioner Om Parkash was not named in the FIR. No evidence to connect the petitioner with the crime except the statement of Gopi Ram. Annexure P-11 is the copy of statement of Gopi Ram, but Gopi Ram did not support the prosecution story. Annexure P-12 is the affidavit of Gopi Ram dated 11.2.2002. Gopi Ram appeared in the Court as PW4. Annexure P-13 is the copy of the statement of Gopi Ram. Gopi Ram was declared hostile. In the absence of statement of Gopi Ram, there is not an iota of evidence on the file to connect the present petitioner with the crime. On 27.10.2009, learned State counsel was directed to summon the Investigating Officer and to submit an affidavit as to whether there is Crl.Misc.No.M-1569 of 2009 3 any other evidence except the statement of Gopi Ram to connect the petitioner with the crime. Investigating Officer, namely, Inspector Suraj Kumar, appeared and submitted his affidavit dated 11.11.2009 to the effect that except statement of Gopi Ram under Section 161 Cr.P.C., there is no other evidence on the file against the petitioner. Learned counsel for the petitioner argued that with the acquittal of co-accused and in view of the statements of Gopi Ram and the Investigating Officer, petition may be accepted by quashing FIR No.730 dated 10.12.2001. Learned State counsel argued that against acquittal of 8 accused, no appeal by the State. Except the statement of Gopi Ram, no other evidence to connect the petitioner with the crime. Gopi Ram appeared in the Court but he failed to support the prosecution story. Now it is upto the Court to quash the FIR or not. FIR No.730 dated 10.12.2001 was registered in view of the statement of Jai Bhagwan Singh dated 10.12.2001. According to the story, four boys on two motorcycles came to the spot when Jai Bhagwan Singh complainant was with Jaipal (deceased), near the taxi stand. The boys had requested Jaipal to accompany them. Jaipal refused to accompany them. Then one of the boys took out his pistol and fired a shot, hitting near the left ear of Jaipal. After firing a shot, all the four boys had fled away from the spot with pistol. On receipt of firearm injury, Jaipal had died on the spot. As per the allegation of the petitioner, petitioner was not named in the FIR. Case was based on circumstantial evidence. To connect present petitioner with the crime, main witness was Gopi Ram. Crl.Misc.No.M-1569 of 2009 4 Annexure P-9 is the copy of order dated 19.5.2008. After closing of prosecution evidence, there was no incriminating evidence appearing against Sajnay. So recording of statement of Sanjay under Section 313 Cr.P.C. was dispensed with. Sanjay was acquitted of the charges levelled against him vide order dated 19.5.2008 (Annexure P-9). Annexure P-10 is the copy of the order dated 9.9.2008. In FIR No.730 dated 10.12.2001, 7 accused were acquitted of the charges levelled against them. Against the judgment of acquittal dated 9.9.2008 (Annexure P-10), no appeal by the State. Gopi Ram had appeared as PW4. He failed to support the prosecution story. He was declared hostile and was cross-examined by learned PP for the State, but nothing came out from his statement to support the prosecution story. Annexure P-11 is the statement of Gopi Ram before learned ACJM, but there is not a word in the statement of Gopi Ram against the present petitioner. Annexure P-12 is the copy of affidavit of Gopi Ram. As per affidavit (Annexure P-12), prosecution story stands falsified. Annexure P-13 is the statement of Gopi Ram when appeared as PW4 in FIR No.730 dated 10.12.2001. But as discussed earlier, before ACJM or learned Sessions Judge, Gopi Ram has not stated a word against the present petitioner. On 27.10.2009, after arguing for some time, learned counsel for the petitioner stated that except the statement of Gopi Ram there is no other evidence against the petitioner. Learned State counsel frankly admitted that except the statement of Gopi Ram, there is no other evidence Crl.Misc.No.M-1569 of 2009 5 to connect present petitioner with the crime. Case was adjourned to 16.11.2009 with a direction to learned State counsel to summon the Investigating Officer and to file affidavit to controvert the allegation of learned counsel for the petitioner. Inspector Suraj Kumar, SHO, PS Civil Lines, Hisar, appeared and submitted his affidavit dated 11.11.2009 and the same was ordered to be taken on record. As per affidavit dated 11.11.2009, SI Suraj Kumar categorically stated that except the statement of Gopi Ram under Section 161 Cr.P.C., there is no other evidence on the file against the petitioner. With the acquittal of remaining accused vide orders dated 19.5.2008 (Annexure P-9) and 9.9.2008 (Annexure P-10), continuation of present FIR would be a clear misuse of the process of law. In the light of above discussion, FIR No.730 dated 10.12.2001 under Sections 302/120-B/34 IPC and Sections 25/54/59 of the Arms Act, registered at Police Station Civil Lines, Hisar, with all subsequent proceedings arising therefrom, is ordered to be quashed. Petition is accepted. 18.11.2009 ( JORA SINGH ) pk JUDGE