Crl. Appeal No. 42-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 42-SB of 2004 Date of Decision : September 05, 2011 Gian Singh .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. S. Sihota, Senior Advocate with Mr. Ashok Sharma, Advocate for the appellant. Mr. Sameer Singh, AAG, Haryana. * * * L. N. MITTAL, J. (Oral) : By this common judgment, I am disposing of two criminal appeals i.e. Crl. Appeal No. 42-SB of 2004 filed by convict Gian Singh and Crl. Appeal No. 76-SB of 2004 filed by convict Mukhtiyar Singh because both these appeals have arisen out of a single case. Complainant Prabhu Dayal lodged FIR on 01.05.2002 by moving application Annexure P-A dated 30.04.2002. The complainant alleged in the application that he is resident of Village Brijwari, District Mathura. He came to sell his wheat at Hodal. Dr. Jagdish of complainant's Crl. Appeal No. 42-SB of 2004 2 village was running a clinic at Hodal. The complainant, along with Dr. Jagdish, went to Mandi, where Nepal Singh (co-accused of the appellants, since acquitted) was selling vegetables. The complainant and Dr. Jagdish purchased some tomatoes from Nepal Singh and started eating the same there. In the meanwhile, they saw that some persons were purchasing charas from Nepal Singh. Out of curiosity, the complainant inquired about the said substance. Nepal Singh gave small quantity of charas to the complainant. Thereupon, appellant Mukhtiyar Singh, who was posted as Constable Gunman to Sub Divisional Magistrate (SDM), Hodal, and appellant Gian Singh, who was posted as Driver of SDM, Hodal, came and caught hold of the complainant and Dr. Jagdish and forcibly took them in the vehicle of SDM to a side room in SDM's residence. Both the appellants threatened the complainant and his companion to implicate them in a false case and demanded Rs.30,000/-. The matter was settled at Rs.25,000/-. The complainant was taken on motorcycle to his commission agent. The complainant borrowed Rs.20,000/- from commission agent and gave the same to the appellants, whereas the appellants also took away Rs.5,000/- from the purse of Dr. Jagdish. Thereafter, the complainant and his companion were released at 10:00 P.M. The complainant met Superintendent of Police, Faridabad and thereafter, presented application Ex.P-A to Deputy Superintendent of Police (DSP) – Rohtash Singh, who made his own endorsement on it and sent it to Police Station, Hodal, where Crl. Appeal No. 42-SB of 2004 3 FIR was registered. DSP Rohtash Singh investigated the case. During investigation, complainant Prabhu Dayal made statement under Section 161 of the Code of Criminal Procedure (in short – Cr.P.C.) alleging that on 26.04.2002, he had come to sell wheat at the shop of his commission agent Jai Parkash in Hodal. The complainant went to Dr. Jagdish at his clinic and told him that small quantity of charas was needed for a Saint. Dr. Jagdish took the complainant to accused Nepal Singh and told him about requirement of charas. Nepal Singh asked them to come at about 3/4:00 P.M. Then message from Nepal Singh was received at the clinic of Dr. Jagdish at about 06:00 P.M. Complainant and Dr. Jagdish then went to Nepal Singh and collected small quantity of charas from him. In the meanwhile, both the appellants also came there and caught both of them i.e. complainant and Dr. Jagdish and took them in official vehicle of SDM to a side room in PWD Rest House, Hodal. Both the appellants took out Rs.730/- from personal search of Dr. Jagdish and Rs.150/- from the complainant. Then they made demand of Rs.30,000/-, which was reduced to Rs.25,000/-. Gian Singh took the complainant on motorcycle to Anaj Mandi, Hodal, from where the complainant borrowed Rs.20,000/- from his commission agent and gave the same to Gian Singh, who, on reaching back the Rest House, paid the said amount of Rs.20,000/- (which was in the form of currency notes of Rs.500/- denomiation) to Mukhtiyar Singh, who counted the same and kept it with him. Out of the amount of Rs.730/- of Dr. Crl. Appeal No. 42-SB of 2004 4 Jagdish, the appellants retained Rs.600/- and gave back Rs.130/- and also gave back the amount of Rs.150/- of complainant to him and then both of them were released at 10:00 P.M. Dr. Jagdish also made similar statement during investigation. One Jwahar Singh also made statement during investigation that Nepal Singh had made extra-judicial confession before him that he, in conspiracy with both the appellants, had committed the aforesaid occurrence. Details thereof were also stated. Both the appellants were arrested. Accused Gian Singh produced Rs.10,000/- in the form of notes of Rs.100/- denomination. The same were sealed in parcel and were seized by the police. Accused Mukhtiyar Singh produced Rs.10,600/-, which included 21 notes of Rs.500/- denomination and one note of Rs.100/- denomination. The same were sealed in parcel and were seized by the police. Accused Nepal Singh was also arrested. Statements of witnesses were recorded during investigation. Rough site plan and scaled site plan of the place of occurrence were prepared. Sanction for prosecution of both the appellants was obtained. On completion of investigation, police presented report under 173 Cr. P.C. for prosecution of all the three accused i.e. both the appellants and Nepal Singh for offences under Sections 384, 342 and 120-B of the Indian Penal Code (in short – IPC) and Sections 7 and 8 of the Prevention of Corruption Act, 1988 (in short – the Act). Crl. Appeal No. 42-SB of 2004 5 Charge under Sections 384, 342 and 120-B IPC against all the three accused and also under Section 13 of the Act against both the appellants was framed. All the three accused pleaded not guilty and claimed trial. To prove its case, the prosecution examined ten witnesses. SI Atar Singh (PW-1) stated that he recorded formal FIR in this case. Constable Daryao Singh (PW-2) stated that he had taken the special report of the case to different authorities. Inspector Jagdish Lal (PW-3) proved sanction for prosecution of accused Mukhtiyar Singh, whereas Anuradha Sharma – Ahlmad (PW-5) proved sanction for prosecution of accused Gian Singh. Manoj Kumar – Draftsman (PW-4) stated that he prepared scaled site plan in this case. Complainant Prabhu Dayal (PW-6) stated that he had gone to sell wheat in Grain Market, Hodal, where two persons, who told their names as Gian Singh and Mukhtiyar Singh, had taken him to a red-coloured building and demanded Rs.25,000/- from him under threat of involving in false criminal case. However, the complainant stated that accused Gian Singh and Mukhtiyar Singh, present in the Court, are not the said persons. The complainant was declared hostile and was cross-examined by the Public Prosecutor, but the complainant denied the remaining prosecution version in Crl. Appeal No. 42-SB of 2004 6 toto. Dr. Jagdish (PW-7) and Jwahar (PW-8) have turned hostile completely and stated that they had no knowledge of the present case. Both of them were declared hostile and were cross-examined by the Public Prosecutor, but they denied the prosecution version. Sunita Verma (PW-9) was posted as SDM, Hodal at the relevant time. She stated that accused Gian Singh produced Rs.10,000/- and accused Mukhtiyar Singh produced Rs.10,600/-, which were sealed in separate parcels and were seized by the police. Rohtash Singh – retired DSP (PW-10) stated about investigation of the case conducted by him. All the three accused, in their examination under Section 313 Cr.P.C., denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. Both the appellants also alleged that under police pressure, Gian Singh arranged the amount of Rs.20,600/- and out of it, police showed recovery of Rs.10,000/- from Gian Singh and Rs.10,600/- from Mukhtiyar Singh. Accused did not lead any evidence in their defence. Learned Additional Sessions Judge/Special Judge, Faridabad, vide judgment dated 11.12.2003, acquitted accused Nepal Singh of the charge against him and also acquitted both the appellants Gian Singh and Mukhtiyar Singh under Sections 342 and 120-B IPC, but convicted them Crl. Appeal No. 42-SB of 2004 7 under Section 384 IPC and Section 13 (1) (d) (ii) read with Section 13 (2) of the Act. After hearing both the convicts on quantum of sentence, learned Additional Sessions Judge/Special Judge, vide order dated 12.12.2003, sentenced each convict to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/- and in default thereof, to undergo further rigorous imprisonment for six months for each of the two offences. Both the sentences of each convict were ordered to run concurrently. Feeling aggrieved, both the convicts have preferred these two criminal appeals assailing their conviction and sentence. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellants vehemently contended that there is practically no evidence to prove the guilt of the accused because all the three material witnesses i.e. Prabhu Dayal – Complainant (PW-6), his companion Dr. Jagdish (PW-7) and Jwahar (PW-8), before whom extra- judicial confession was allegedly made by Nepal Singh, have all turned hostile and have not stated anything incriminating against present appellants. On the other hand, learned State counsel contended that recovery of booty i.e. robbed amount was made from both the appellants i.e. Rs.10,000/- from Gian Singh and Rs.10,600/- from Mukhtiyar Singh and the said recovery proves guilt of the appellants. Reference in this regard was Crl. Appeal No. 42-SB of 2004 8 made to statements of SDM Sunita Verma (PW-9) and Rohtash Singh (PW- 10), who have stated about the said recovery. I have carefully considered the rival contentions. It is manifest on bare perusal of the case file that practically, there is no evidence to prove the guilt of the appellants. All the three material witnesses i.e. Prabhu Dayal – Complainant (PW-6), his companion Dr. Jagdish (PW-7) and Jwahar (PW-8) – witness of extra-judicial confession of appellants' co-accused Nepal Singh (since acquitted), have turned completely hostile and have not stated anything whatsoever incriminating against the appellants. Learned trial Judge, in his zeal to convict the appellants, has relied on evidence of SDM Sunita Verma (PW-9) and Rohtash Singh (PW-10) regarding recovery of the amount from the appellants, but this zeal of the trial Judge is completely misplaced and misconceived. Both the appellants have themselves stated in their examination under Section 313 Cr.P.C. that under police pressure, Gian Singh arranged the aforesaid amount of Rs.20,600/- and recovery of Rs.10,000/- from Gian Singh and Rs.10,600/- from Mukhtiyar Singh was shown. Merely on the basis of recovery of said amount, the appellants could not be convicted because payment of any such amount by the complainant to the appellants is not proved. The complainant did not state that he paid any amount either to the appellants or to the two persons, who had stated their names as Gian Singh and Mukhtiyar Singh (not the present Crl. Appeal No. 42-SB of 2004 9 appellants). When no such amount was paid, recovery of any amount from the appellants would not burden them with any liability, much less criminal liability. In the aforesaid context, it is also highly significant to notice that according to the prosecution version, as made out during investigation, the amount of Rs.20,000/-, allegedly paid by the complainant, comprised of currency notes of Rs.500/- denomination only, whereas the amount of Rs.10,000/- recovered from Gian Singh was in the form of currency notes of Rs.100/- denomination. In this view of the matter, Investigating Officer Rohtash Singh – retired DSP (PW-10) specifically admitted in his cross- examination that it had come during investigation that the notes produced by Gian Singh accused were not the same, which the complainant had allegedly given to him. It is thus manifest that merely on the basis of recovery of amount of Rs.20,600/- from the appellants, their conviction could not be recorded. Except the said recovery, there is no other incriminating evidence against the appellants. Statements of Complainant Prabhu Dayal (PW-6), his companion Dr. Jagdish (PW-7) and Jwahar (PW- 8), recorded under Section 161 Cr.P.C. during investigation, could not be used as substantive evidence to convict the appellants, when all the three makers of said statements disowned the same. Merely because the complainant has admitted his signatures on application Ex.P-A also, the appellants could not be held guilty when the complainant disowned the Crl. Appeal No. 42-SB of 2004 10 contents of application Ex.P-A, on the basis of which FIR had been registered. It would also not be out of place to notice here with significance that the complainant, in his supplementary statement Ex.P-E made under Section 161 Cr.P.C. during investigation, materially changed the version. In FIR lodged by complainant by moving application Ex.P-A, he had alleged that they had paid total amount of Rs.25,000/- to the appellants. However, in statement Ex.P-E, the complainant came out with a new version that total amount paid was Rs.20,600/-. However, nevertheless learned Special Judge, while convicting the appellants, concluded in paragraph 9 of the impugned judgment that the appellants had extorted amount of Rs.25,000/- from the complainant and his companion. Be that as it may, there is not even a shred of evidence to depict that any amount was extorted from the complainant or his companion. On the other hand, the complainant changed his version regarding the extorted amount being Rs.25,000/- and then being Rs.20,600/-. In the FIR, the date of occurrence was also not mentioned. In the FIR, it was also mentioned that the occurrence took place when the complainant and his companion purchased tomatoes from Nepal Singh, but during investigation, complainant and his companion Dr. Jagdish came out with a different version that they had approached Nepal Singh for small quantity of charas and Nepal Singh had asked them to come later on so that in the meanwhile, he could arrange the Crl. Appeal No. 42-SB of 2004 11 required quantity of charas. Thus, a completely new version was given during investigation and the version given in the FIR was materially changed. The place, where the complainant and his companion were confined, was also changed during investigation because according to the FIR, the complainant and his companion were taken to a side room in the residential accommodation of SDM, whereas during investigation, they stated that they were taken to a side room in the PWD Rest House, Hodal. It has not come in evidence that PWD Rest House, Hodal is residential accommodation of SDM. Thus, place of occurrence was also changed. For the reasons aforesaid, I find that conviction of both the appellants is completely unfounded. The impugned judgment of conviction passed by learned Special Judge is based on conjectures and surmises and is completely unfounded. There is practically no evidence, much less sufficient evidence, to prove the guilt of the appellants beyond reasonable doubt. Prosecution has failed to bring home the charge against the appellants. As a necessary corollary of discussion aforesaid, both these criminal appeals i.e. Crl. Appeal No. 42-SB of 2004 filed by convict Gian Singh and Crl. Appeal No. 76-SB of 2004 filed by convict Mukhtiyar Singh are allowed and impugned judgment and order passed by learned Special Judge thereby convicting and sentencing the two appellants, are set aside and both the appellants are acquitted of the charges against them. Crl. Appeal No. 42-SB of 2004 12 Fine amount paid by them shall be refunded. Impugned judgment regarding acquittal of Nepal Singh – co-accused is not in issue in these appeals, and therefore, no observation herein shall have any bearing qua the same. September 05, 2011 ( L. N. MITTAL ) monika JUDGE