Crl.Appeal No. 969-DBA of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No. 969-DBA of 2002 Date of decision: 22.9.2011 State of Haryana ... Appellant versus Pala Singh ... Respondent CORAM: HON'BLE MR. JUSTICE S.S.SARON. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.G.S.Sandhu, AAG, Haryana, for the appellant. Mr.J.K.Goel, Advocate, for the respondent. ... JORA SINGH, J. State of Haryana filed Crl.Misc. under Section 378(3) of Code of Criminal Procedure (Cr.P.C. for short) for grant of leave to appeal against the judgment of acquittal dated 2.3.2002 passed by the learned Additional Sessions Judge, Kurukshetra, in Sessions Case No. 27 of 1998, arising out of FIR No. 247 dated 17.7.1996 registered under Section 304 of the Indian Penal Code (IPC for short), at PS Sadar Thanesar, Kurukshetra. As per order dated 13.12.2002, leave to appeal was granted. Prosecution story, in brief, is that on 17.7.1996, Ajmero, complainant, wife of Karam Singh (deceased), lodged report with the police on the allegation that she along with her husband Karam Singh and children was residing in a rented house situated in Harijan Basti, Kurukshetra. Karam Singh was working as a Watchman in Ravidas Temple, Kurukshetra, and was getting Rs.1,000/- per month as salary. On 16.7.1996 at about 10.00 a.m., she had gone to Ravidas Temple to see her husband. Pala Singh was Crl.Appeal No. 969-DBA of 2002 2 serving as an Accountant in Ravidas Temple and he told her husband in her presence that he (Karam Singh ) stealthily used to take milk for his children from the temple and was not serving tea to the persons visiting the temple. Karam Singh replied that a false allegation had been levelled against him but Pala Singh asserted that he used to take milk to his house. After that, Karam Singh said “KAUN CHHORICHOD KEHTA HAI”. On hearing this, Pala Singh gave 2-3 kick blows to Karam Singh below his stomach and on receipt of kick blows, he fell down on the ground. She started weeping and her husband also started vomiting while lying on the ground. After that, Karam Singh became unconscious. She threatened that she will visit the police station and report the matter, then Pala Singh told her that there was no need to go to the police station and he would get Karam Singh treated. As per request of Pala Singh, Karam Singh was taken to the clinic of Dr. Pawan Goyal in a rickshaw with the help of Pala Singh. Karam Singh was got admitted in the hospital but the doctor obtained her thumb impressions on some papers. Thereafter, Pala Singh left that place and she remained with her husband throughout the day and night. On 17.7.1996 at about noon time, Pala Singh came to the hospital, then she told him that the condition of her husband was serious and he was requested to shift Karam Singh to the Civil Hospital. Then Pala Singh replied that proper attention is not given in the Civil Hospital and he would get Karam Singh treated in a private hospital. On the request of Pala Singh, Karam Singh was shifted to the hospital of Dr. Nagpal in a rickshaw. There were 2-3 persons also with him at that time. Karam Singh was got admitted in the hospital of Dr. Nagpal and was operated upon by the doctor with her consent. After 2-3 hours of the operation, Karam Singh succumbed to his injuries caused by Pala Crl.Appeal No. 969-DBA of 2002 3 Singh. After the death of Karam Singh, the father of the complainant namely Gopala and her brother Ram Pal came to the hospital when they came to know about the death of Karam Singh. Dr. Nagpal had sent intimation to the concerned police station and on receipt of information, Inspector/SHO, PS Sadar, Thanesar, had gone to the hospital. Then statement (Ex.PH) of Ajmero was recorded. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. After post mortem examination, dead body was handed over to the relations of the deceased for cremation. After completion of investigation, challan was presented in Court. After hearing learned PP for the State, the learned counsel for the accused and from the perusal of documents on the file, learned trial Court opined that a prima facie case is made out to frame charge under Section 304 (II) IPC against the accused. He was charge sheeted accordingly. The accused did not plead guilty and claimed trial. In order to substantiate its case, the prosecution examined number of witnesses. PW1 Dr.G.D.Mittal stated that he was Member of the Board of Doctors and on 18.7.1996 at about 10.45 AM, the Board had conducted post mortem examination on the dead body of Karam Singh and after removing the dressing, noticed a stitched wound vertically placed 12” in length extending from xiphoid sternum to supra pubic region, with one corrugated drain in the lower part of the wound and one on each of the middle of the abdomen. As the death had occurred in immediate post operative period, so it was not possible to ascertain the cause of death. The case was referred to the Department of Forensic Medicine, PGIMS, Rohtak, Crl.Appeal No. 969-DBA of 2002 4 for expert opinion regarding the exact cause of death. PW2 Dr. P.K.Paliwal, Associate Professor, Department of Forensic Medicine, PGIMS, Rohtak, stated that on 19.7.1996, he had conducted postmortem examination on the dead body of Karam Singh. There was surgically stitched wound over the abdomen, mid line extending from xiphi sternum to pubic symphysis (29 cm in length) and it was 1 cm right to umbilicus. There were 18 stitches. Cause of death was retroperitoneal haemorrhage, which was sufficient to cause death in the ordinary course of nature. PW3 Mukesh Kumar, Draftsman, prepared scaled site plan (Ex.PC) as per demarcation of Ajmero. PW4 Constable Karnail Singh was deputed to get the post mortem conducted on the dead body of Karam Singh. PW5 Dr.Pawan Kumar Goyal stated that on 16.7.1996, Karam Singh was admitted in his hospital at 12.30 PM and remained there upto 10.45 AM on 17.7.1996. Then the patient was referred to Civil Hospital, Kurukshetra. Patient was brought to the hospital by Pala Singh. Ex.PD is the copy of bed head ticket. Ajmero came to the hospital in the evening and stated that Karam Singh had received injuries in an assault. Case was referred to the Government hospital for MLR. PW6 Dr.A.C.Nagpal stated that on 17.7.1996 at 12.15 PM, Karam Singh was brought to his clinic by his wife, Pala Singh, Baljit and others from the clinic of Dr.Pawan Goyal. Karam Singh was semi- conscious and disoriented. Patient was referred to PGI, Chandigarh but on the refusal of attendants of the patient, with their consent, necessary relevant investigation and ultra sound of the patient was got done. Patient was Crl.Appeal No. 969-DBA of 2002 5 operated upon in the region of lower abdomen (supra pubic region). There was dark blackish colouration of the tissues and abdominal cavity was full of watery fluids, which was blood stained and of dark dirty colour. There was no faecal smell. There was a rent in anterior part of the urinary bladder (i.e. region just below the retro-pubic space) from which urine was coming out and wall of that part of urinary bladder was discoloured, which was stitched with 1 zero cat gut. There was injury to mesentery near the right flexor region of large gut and one or two other places with greenish tinge and after doing the needful, abdomen was closed by him. Post operative treatment was given to the patient. Patient had expired at 5.10 PM on account of cardio respiratory arrest. After the death, ruqa (Ex.PF) was sent to the police station. PW7 SI Chander Pal on receipt of information from the doctor had gone to the hospital on 17.7.1996 and had recorded the statement (Ex.PH) of Ajmero. After making endorsement, the said statement was sent to the police station, on the basis of which, formal FIR (Ex.PH/1) was recorded. PW8 Ajmero is the complainant and has reiterated her stand before the police in terms of her statement (Ex.PH). PW9 Amar Singh stated that Karam Singh was not known to him. He came to know that Pala Singh, residing in the temple, was dealing with such type of injury as was suffered by his son. He had gone to the temple. Karam Singh was found lying in the temple and was complaining of pain. After that, Amar Singh failed to support the prosecution. He was declared hostile and was cross-examined by learned PP for the State. PW10 Constable Rambir Singh tendered his affidavit (Ex.PK). Crl.Appeal No. 969-DBA of 2002 6 PW11 Inspector Sewa Singh (retired) was the Investigating Officer. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was as under:- “I am innocent. One Nanha Ram son of Sardara Ram of my village Barwa had died a few days ago. On 16.7.1996 his ashes were to be collected as per last rites and in that connection I was present in my village on 16.7.1996. I received information that Karam Singh is unwell and as such I came to Mandir around 12.00 noon and removed Karam Singh to the clinic of Dr. Pawan Goel. Ajmero Devi wife of Karam Singh was not residing in Kurukshetra in those days. She had a strained relation with her husband. She was residing at Jayotisar with her father and brother. On account of strained relation between Ajmero and her husband Karam Singh, there was a litigation of criminal as well as civil nature. Ajmero had filed a complaint against her husband, father-in-law, husband's brothers etc. under Sections 406/498-A IPC. She had also filed a divorce petition against Karam Singh. She had also filed maintenance application against Karam Singh. There were panchayats from the side of Karam Singh. Karam Singh was distantly related to me. He was a maternal uncle of the wife of my brother Balwan Singh. On account of my above said relationship and help, Ajmero, her father Gopala, brother Ram Kumar bore a grudge Crl.Appeal No. 969-DBA of 2002 7 against me. They all three had arrived in the hospital of Dr. Pawan Goel from Jyotisar later on. Ajmero, her father and brother got this false case registered against me with a revengeful attitude and also for extraneous consideration.” In defence, DW1 Lal Singh stated that Ajmero daughter of Gopala was married with Karam Singh but after some time, there was some dispute amongst the husband and wife. Panchayat was convened and after that, Ajmero had gone to her matrimonial home. Again differences arose amongst the husband and wife. Then Ajmero started residing separately at Jyotisar. DW2 Sukhdev Singh, Criminal Ahlmad, brought the summoned record and stated that application under Section 125 Cr.P.C. filed by Ajmero against Karam Singh was pending. One complaint under Sections 406/498-A/420/506 IPC was also instituted by Ajmero against Karam Singh and others. DW3 Ranbir Singh, Clerk, brought the record of petition under Section 125 Cr.P.C. filed by Ajmero against Karam Singh decided on 24.10.1996. DW4 Nathi Ram Gupta, Advocate, stated that petition under Section 125 Cr.P.C. was instituted on behalf of Ajmero and copy of the same is Ex.DA. On 12.10.1996, he made statement in the Court that he does not want to proceed with the petition on account of the death of Karam Singh. Ex. DB is the copy of the statement and petition was dismissed as withdrawn on 24.10.1996. Ex.DC is the copy of the order. On 16.9.1994, complaint under Sections 406/498-A IPC was filed on behalf of Ajmero. After hearing learned PP for the State, learned counsel for the Crl.Appeal No. 969-DBA of 2002 8 respondent-accused and from the perusal of evidence on the file, respondent-accused was acquitted of the charge levelled against him. We have heard learned State counsel for the appellant, learned counsel for the respondent-accused and with their assistance have gone through the evidence on the file. Learned State counsel for the appellant argued that Karam Singh was serving as a Chowkidar in Ramdas Temple, Kurukshetra. Respondent-accused was serving as a Cashier in the same temple. Respondent-accused was suspecting that Karam Singh used to take milk from the temple to his house but Karam Singh was saying that the allegation was false. There was some altercation amongst the deceased and the respondent-accused. At that time, Ajmero, wife of Karam Singh, was present there. In the presence of Ajmero, respondent-accused gave 2-3 kick blows on the private parts of the deceased. Ajmero threatened to inform the police but respondent-accused stated that he will get Karam Singh treated from the hospital. Due to this reason, no complaint was lodged with the police. Karam Singh was shifted to the hospital of Dr. Pawan Goyal, where thumb impressions of Ajmero were obtained on some papers by the doctor. From the hospital of Dr. Pawan Goyal, Karam Singh was shifted to the hospital of Dr. Nagpal. Karam Singh was operated upon and as per post mortem examination by Dr. P.K.Paliwal, PGIMS, Rohtak, cause of death was retroperitoneal haemorrhage, which was sufficient to cause death in the ordinary course of nature. It is submitted that the evidence on the file was not rightly appreciated by the trial Court. Learned counsel for the respondent-accused argued that occurrence was on 16.7.1996 in the temple, where respondent-accused was Crl.Appeal No. 969-DBA of 2002 9 serving as a Cashier. Deceased was also serving as a Chowkidar but presence of Ajmero at the time of occurrence is doubtful. Ajmero had litigation with the deceased. Ajmero had filed a divorce petition under Section 13 of the Hindu Marriage Act against Karam Singh but the same was dismissed as withdrawn on 7.6.1996. Petition under Section 125 Cr.P.C. filed by Ajmero against Karam Singh was also dismissed as withdrawn on 24.10.1996. One complaint under Sections 406/498-A IPC was also instituted by Ajmero. It is no case of the complainant that during the pendency of petition under Section 125 Cr.P.C., she was residing with Karam Singh (deceased). The petition under Section 125 Cr.P.C. was got dismissed as withdrawn on 24.10.1996, which would mean that on the day of occurrence, i.e., 16.7.1996, Ajmero was not present at the spot. After the occurrence, injured was shifted to the hospital of Dr. Pawan Goyal and according to the record maintained by Dr. Pawan Goyal, Karam Singh was brought to the hospital on 16.7.1996 at 12.35 PM and was discharged on 17.7.1997 at 10.45 AM. Ex.PD is the certificate regarding admission by Dr.Pawan Goyal, which shows that on 16.7.1997 at about 7.00 PM, Ajmero, her father and some other persons were also present in the hospital. Patient was got admitted by Ajmero. When Ajmero appeared in Court, then she stated that Karam Sinigh was got admitted in the hospital by Pala Singh. No injury was noticed on the person of Karam Singh by Dr. Pawan Goyal or Dr. A.C.Nagpal. A suggestion was given to Dr. Nagpal that he was negligent while performing the operation and on account of his intervention surgically, Karam Singh developed complications and ultimately died. Ajmero had litigation with the deceased. Respondent-accused is the relation of the deceased. Simply to harass the respondent-accused, false case was Crl.Appeal No. 969-DBA of 2002 10 registered. From the evidence and material on record, the learned trial Court rightly opined that presence of Ajmero at the time of occurrence is doubtful. According to the prosecution story, PW8 Ajmero is the widow of Karam Singh. On 16.7.1996 at about 10.00 AM, Ajmero along with her children had gone to Ravidas Temple from her house situated in Harijan Basti, Kurukshetra, because Karam Singh was serving as a Chowkidar in Ravidas Temple and was staying there. Ajmero was in occupation of a rented house situated in Harijan Basti, Kurukshetra. At about 10.00 AM, when she was in the temple, then the respondent-accused had an altercation with Karam Singh regarding theft of milk from the temple. Respondent- accused gave 2-3 kick blows on the private parts of Karam Singh and on receipt of kick blows, Karam Singh became unconscious. The defence version of the respondent-accused is that Ajmero had litigation with her husband Karam Singh. On the day of occurrence, he was not in the temple but was in his village. Then information was received by the respondent- accused that Karam Singh is not feeling well. At about 12.00 noon, he had gone to Ravidas Temple. Karam Singh was shifted to the clinic of Dr. Pawan Goyal. Due to litigation amongst the deceased and his wife Ajmero, there were panchayats and he was attending the panchayats. Due to this reason, he was falsely named by the complainant. Now the question is whether presence of Ajmero at the time of occurrence is natural or a story was coined to implicate the respondent- accused because he was attending panchayats from the side of Karam Singh. Ajmero while appearing as PW8, stated that she used to reside in Harijan Basti, Kurukshetra, in a rented room. Her husband was Crl.Appeal No. 969-DBA of 2002 11 Chowkidar in Ravidas Temple, Kurukshetra. On the day of occurrence at about 10.00 AM, she along with her children had gone to the temple, where respondent-accused was working as Cashier. There was some altercation between the deceased and the respondent-accused regarding theft of milk. Then respondent-accused gave 2-3 kick blows on the private parts of Karam Singh. On receipt of the blows, Karam Singh became unconscious and started vomiting. She threatened to report the matter to the police but the respondent-accused told her that there was no need to approach the police and he would shift Karam Singh to the hospital for treatment. Ajmero in her examination-in-chief stated that Karam Singh was shifted to the hospital in a rickshaw by Pala Singh. She had also gone to the hospital in the same rickshaw but in the hospital, her thumb impressions were obtained on some papers by Dr. Pawan Goyal. Pala Singh remained in the hospital for one day and one night. Pala Singh was requested to shift Karam Singh to the Civil Hospital because his condition was worsening. Then Pala Singh stated that Karam Singh is to be shifted to a private hospital. After that, Karam Singh was shifted to the clinic of Dr. Nagpal. She had gone to the clinic of Dr.Nagpal, where Karam Singh was operated upon. After 2-3 hours, Karam Singh had expired in the clinic of Dr. Nagpal. However, in her cross-examination, Ajmero admitted that she had filed a divorce petition against her husband in the year 1995 and there was a compromise. Petition was got dismissed as withdrawn with the intervention of panchayat. Pala Singh, respondent-accused, was present in the panchayat but she had not filed petition for maintenance. She further admitted that Karam Singh used to reside in the temple but on the day of occurrence, he came to her house in the morning and after spending some time, he was supposed to visit the Crl.Appeal No. 969-DBA of 2002 12 temple with the children. She could not tell the name of her landlord. Karam Singh was paying the rent but she could not tell as to how much rent was being paid by Karam Singh. She could not state or disclose the names of the neighbours residing in the Harijan mohalla. Further it was stated that she could not tell the name of any person of that mohalla. No alarm was raised before or after the occurrence or when Karam Singh became unconscious on receipt of blows. She had gone to the hospital along with her children and had not met the doctor but her thumb impressions were obtained on some papers by the doctor. Her brother and father had not visited the clinic of Dr. Pawan Goyal. She had not disclosed about the incident to any one regarding the injuries that were caused by the respondent-accused. Her father and brother had not visited the hospital of Dr. Nagpal at the time of operation and earlier to that. Karam Singh remained unconscious till his death. A suggestion was given to Ajmero that the respondent-accused was got implicated in the present case because he was helping Karam Singh during the litigation between her and Karam Singh but the suggestion was denied. Ex.DE is the copy of petition under Section 13 of the Hindu Marriage Act and the same was got dismissed as withdrawn on 7.6.1996 and this fact is clear from the copy of order (Ex.DD). Ajmero had also filed petition under Section 125 Cr.P.C. Ex.DA is the copy of the petition but the same was got dismissed as withdrawn on 24.10.1996. Ex.DC is the copy of the order. Ajmero had also filed complaint under Sections 406/498- A/420/506/109/120-B/34 IPC against Karam Singh and others and this fact is clear from the complaint (Mark-A). Ajmero while appearing as PW8, Crl.Appeal No. 969-DBA of 2002 13 admitted that she had filed a divorce petition and the same was got dismissed as withdrawn but no petition for maintenance was filed but this fact is not correct in view of the petition, copy of which is Ex.DA and copy of interim order (Ex.DC), vide which petition under Section 125 Cr.P.C. was got dismissed as withdrawn. Occurrence is dated 16.7.1996 at about 10.00 AM. Ajmero in cross-examination admitted that after the dispute with her husband, she started residing with her father. As per examination-in-chief, Ajmero along with her children was residing in a rented house situated in Harijan Basti, Kurukshetra, but she could not tell about the name of her landlord or any of the neighbours residing in the same mohalla. She had litigation with her husband and at the time of occurrence, the litigation was pending. Therefore, there was no reason for the deceased to pay rent to the landlord on behalf of Ajmero. On receipt of blows, Karam Singh became unconscious and if blows were given by the respondent-accused, then Ajmero ought to have reported the matter to the police. There was no reason to remain silent. Firstly, Karam Singh was shifted to the clinic of Dr. Pawan Goyal by the respondent-accused in a rickshaw. Respondent- accused stayed in the clinic during the day and night. From the clinic of Dr. Pawan Goyal, Karam Singh was shifted to the clinic of Dr. Nagpal, where he was operated upon but again no report was made to the police. As per Ajmero, her father and brother had not gone to the clinic of Dr. Pawan Goyal or Dr.Nagpal but this fact is not correct in view of the report (Ex.PD) of Dr. Pawan Goyal. Ex.PD shows that Karam Singh was admitted in the hospital on 16.7.1996 at 12.35 PM and was discharged on 17.7.1996 at 10.45 AM. On 16.7.1996 at about 7.00 PM, Ajmero, her father and some Crl.Appeal No. 969-DBA of 2002 14 other persons were present in the hospital. Karam Singh was got admitted by Ajmero. So, presence of Ajmero at the time of occurrence is highly doubtful. Firstly, Karam Singh was shifted to the hospital of Dr. Pawan Goyal. Dr. Pawan Goyal while appearing as PW5, stated that Karam Singh was brought to his hospital on 16.7.1996 at 12.30 PM and on 17.7.1996 at 10.45 AM, he was referred to Civil Hospital, Kurukshetra. Patient was brought to his hospital by Pala Singh. Ex.PD is the copy of bed head ticket. Ajmero came to his hospital in the evening. At the time of admission, BP, pulse and vitals of the patient were normal and he could speak. When the patient was discharged from his hospital, at that time, wife and father-in-law of the patient along with some other persons were present. PW6 Dr. Nagpal stated that on 17.7.1996 at 12.15 PM, Karam Singh was brought to his clinic by Ajmero, Pala Singh, Baljit