IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 258-DB of 2000 Dated of Decision:- March 16, 2009 Roop Chand and others ....APPELLANTS VERSUS The State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE L.N.MITTAL Present:- Sh. B.R.Gupta, Advocate for the appellants. Sh. Kulvir Narwal, Addl. Advocate General Haryana for respondent. ------ MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 27/28.4.2000 of the learned Addl. Sessions Judge (I), Kaithal, whereby he convicted Roop Chand son of Matu Ram, Gian Chand son of Matu Ram, Sham Lal son of Matu Ram and Gore Lal son of Roop Chand under Section 302 read with Section 34 IPC and sentenced them to undergo life imprisonment. He further convicted them under Section 364 read with Section 34 IPC and sentenced them to undergo R.I. for ten years. Both the sentences were ordered to run concurrently. The case of the prosecution is unfolded by the statement Ex.PF of Raj Kumar given to SI Sube Singh, SHO Police Station, Cheeka. 2 Criminal Appeal No. 258-DB of 2000 Raj Kumar stated, that he is living in Ward No.4, Cheeka. He has a tyre repairing shop at Kaithal Road, Cheeka. He along with his brother Hans Raj lived in the same house. His brother Hans Raj had two sons and one daughter. Elder son Anil Kumar used to work on the tyre repair shop. On 13.2.1998 Anil Kumar did not return to the house till 11.00 p.m. Raj Kumar along with Hans Raj and their neighbour Chander Bhan were returning to their houses after searching for Anil Kumar. When they came to the street on which their house was situated, from the house of Roop Chand son of Matu Ram, they heard shouts of a person to save him, it was about 3.00 a.m. in the morning. All three of them i.e. Raj Kumar, Hans Raj and Chander Bhan went to the chobara constructed in the house of Roop Chand. They saw Roop Chand armed with an iron rod giving blows to Anil Kumar on the backside of his head, Gian Chand armed with a handle of a hand-pump, struck on the head of Anil Kumar, Sham Lal armed with a Danda gave a Danda blow on the legs of Anil Kumar and Gora Ram armed with a Thapi also gave blows on the head of Anil Kumar. Before they had reached, injuries were being given to Anil Kumar. After pleading mercy for Anil Kumar before all the three, Anil Kumar was brought down. Anil Kumar told Raj Kumar and others, that about two months earlier an altercation had taken place on account of teasing Mamta daughter of Roop Chand. Roop Chand and his brothers Gian Chand and Sham Lal and his son Gore Lal wanted to take revenge on him. He had been picked up at about 2.30 a.m. from the street and taken to the chobara, when he was returning after seeing a movie. Blood was oozing out of his head, nose and mouth of Anil Kumar. He was then taken to Rajendra Hospital, Patiala in a vehicle, but he died out there. 3 Criminal Appeal No. 258-DB of 2000 On the basis of this statement, FIR Ex.PF was registered on 14.2.1998 at 10.30 a.m. and the special report reached the Ilaqa Magistrate, Guhla on 14.2.1998 at 1.00 p.m. The prosecution to prove its case brought into the witness box, Ram Niwas Constable-Draftsman PW1, Surinder Kumar PW2, HC Sashi Kant PW3, Constable Pargat Singh PW4, Dr. O.P.Aggarwal PW5, Inspector Sawan Singh PW6, Constable Vijender Singh PW7, Raj Kumar PW8, Chander Bhan PW9, Baljit Singh PW10, Sub Inspector Sube Singh PW11 and Inspector Jai Kishan PW12. Learned counsel for the appellants has argued, that as per FSL Report Ex.PR, no blood has been found on the iron rod Ex.P14 recovered allegedly from appellant Roop Chand and hathi (handle of hand-pump) Ex.P15 allegedly recovered from appellant Gian Chand. On Thapi Ex.P13 allegedly used by appellant Gore Lal only blood was found. Danda which has been attributed to appellant Sham Lal was not recovered. Appellants Roop Chand and Gian Chand’s weapons i.e. iron rod Ex.P14 and hathi Ex.P15 were not used, as no blood was found on them. Raj Kumar PW8 has stated, that when he was bringing down deceased Anil Kumar, his shirt got full of blood. In fact when he came back from the hospital, blood was still there on his shirt. The Investigating Officer SI Sube Singh PW11 did not take the shirt into possession, nor did he take any blood from the staircase or from the room, where the occurrence had taken place. It clearly shows, that the occurrence did not take place as stated by the complainant i.e. in the chobara of the appellants. The only eye witness to the occurrence is Chander Bhan PW9, who did not support the prosecution case. He was declared hostile but still he stuck to his version, 4 Criminal Appeal No. 258-DB of 2000 that the occurrence did not take place as it has been stated by complainant Raj Kumar PW8. This witness (PW8) is not credible, as a number of Excise cases are pending against him and Hans Raj, the father of the deceased. The extra judicial confession made before Baljit Singh PW10 is devoid of any merit. It has come in the statement of Baljit Singh PW10, that he contested Municipal elections against appellant Sham Lal, not once but twice. Appellants would not have made a confessional statement before a person, who was opposed to him (Sham Lal). The joint confession made does not have value in the eyes of law. Another very important witness Hans Raj, the father of the deceased, was not brought into the witness box for the reasons best known to the prosecution, though the public prosecutor has stated, that this witness was unnecessary. In fact he was a very necessary witness to put light on the occurrence and the motive. Deceased Anil Kumar could not have made a statement before Raj Kumar PW8 and others, when he was allegedly taken from the chobara, as Dr. O.P.Aggarwal PW5 has stated in his testimony, that the number of injuries on the person of the deceased would have made him unconscious immediately. Learned counsel for the State has argued, that if we go through the photographs Ex.P1 to P6, it is clear that there is blood in the chobara (chamber). The gunny bag which was used was blood stained. Recovery of the weapons was done on the disclosure statements made by the appellants. It is the appellants, who knew about the weapons, where they were lying and then the police recovered them. 5 Criminal Appeal No. 258-DB of 2000 FIR Ex.PF is prompt. This itself goes a long way in proving the case of the prosecution. Appellants have been named in the FIR. We have heard the learned counsel for the parties and perused the record with their assistance. The only witness we have is Raj Kumar PW8, who is the real uncle of the deceased. The other eye witness Chander Bhan PW9 was declared hostile. Hans Raj, the father of the deceased, was not produced by the prosecution as being unnecessary. Going through the statement of Raj Kumar PW8. We cannot give any credence to his statement. He has stated that at about 2.00/2.30 a.m., when he was returning along with Chander Bhan PW9 and Hans Raj, they heard shouts coming from the chobara of appellant Roop Chand. They went there and saw Anil Kumar being injured by the appellants. They saved Anil Kumar from the appellants and brought him down. Raj Kumar’s (PW8) clothes were soaked with blood, specially his shirt, but Chander Bhan PW9’s clothes were not. Raj Kumar PW8 has though stated, that his shirt was full of blood and he went to the hospital and came back with that shirt, but the Investigating Officer SI Sube Singh PW11 has stated in his testimony, that he did not take the shirt of Raj Kumar PW8 into possession. Further he has stated, that he did not collect any blood from the room of the chobara or from the staircase. This clearly shows, that the occurrence had not taken place at the chobara of appellant Roop Chand, but at some other place and Raj Kumar PW8 and Chander Bhan PW9 had not witnessed the occurrence. The Investigating Officer would not have made such big lapses of not taking the shirt of Raj Kumar PW8 into possession and not collecting the blood from the chobara or the staircase, though he has stated, that the gunny bag was blood stained and was taken 6 Criminal Appeal No. 258-DB of 2000 into possession, which was used by the appellants to clean up the chobara, but this gunny bag was never produced in Court. Coming to the FSL report Ex.PR, it has been stated in the report, that the iron rod and hand pump handle (hathi), which are Ex.P14 and Ex.P15, that no blood could be detected. The gunny bag Ex.P18 was stained with several medium and small blood stains. This gunny bag was not produced in Court. Even if we take into consideration that the gunny bag had medium and small blood stains, but it clearly shows that the blood was very little, with several serious injuries on the person of the deceased the whole gunny bag would have been smeared with blood. Number of injuries on the person of the deceased are nine in number. A lot of blood must have oozed out of the body. To clean it up, not one gunny blog but several would have been needed. As per the statement of Raj Kumar PW8, before dying Anil Kumar told them, that he had been injured for teasing the daughter of appellant Roop Chand. Dr. O.P.Aggarwal PW5 in his testimony has stated, that it is correct that after receiving such injuries, the patient would go into coma immediately. The dictionary meaning of “Coma” is unconsciousness. Deceased Anil Kumar could not have said anything to Raj Kumar PW8, as he had become unconscious on receiving the injuries. The extra judicial confession allegedly made before Baljit Singh PW10 is devoid of any merit. Baljit Singh PW10 has admitted in his statement, that appellant Sham Lal was his opponent in the Municipal elections and he had fought not one but two elections against him. It is clear, that appellant Sham Lal and Baljit Singh PW10 were political opponents. Appellants would have never gone to him for help. 7 Criminal Appeal No. 258-DB of 2000 With the above discussion and observations, we are of the considered opinion, that appellants are innocent. They are given the benefit of doubt. Appellants are acquitted of all the charges framed against them. Appeal is allowed. Their conviction and sentence is set aside. If in custody and not required in any other case, they be set free forthwith. (MEHTAB S.GILL) JUDGE (L.N.MITTAL) March 16, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO