Crl. Appeal No. 668-DB of 2000. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 668-DB of 2000. Date of Decision : 20.8.2009. Ashu & others (1) ...... Appellants Versus State of Haryana ......Respondent Crl. Appeal No. 187-DB of 2004. Date of Decision : 20.8.2009. Sahid (2) ...... Appellants Versus State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Sudhir Sharma, Advocate, for the appellants. Mr. H.S. Sran, Addl. A.G. Haryana. for the respondent-State. NAWAB SINGH J. This judgment shall dispose of the above titled two criminal appeals bearing number Crl. Appeal No. 668-DB of 2000 and Crl. Appeal No. 187-DB of 2004 as both these appeals have arisen out of the same occurrence. All the accused-appellants were arraigned for trial for the murder of Kamal and inflicting injuries to Mohar Khan. During trial, Sahid Crl. Appeal No. 668-DB of 2000. 2 absconded. He was declared a proclaimed offender. Ashu and three other- appellants were convicted under Section 302 read with Section 34 of Indian Penal Code and sentenced to undergo imprisonment for life by judgment of conviction and order of sentence dated November 18th, 2000 and November 22nd, 2000 respectively by Additional Sessions Judge, Gurgaon. 2. Sahid was late arrested and tried. For the offence under Section 302 IPC, he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- whereas under Section 323 he was convicted and sentenced to undergo RI for six months with fine of Rs.500/- and for the offence under Section 325 IPC, to undergo RI for two years with fine of Rs.1000/- with default stipulation by judgment of conviction and order of sentence dated December 19th, 2003 and December 20th, 2003 respectively passed by Sessions Judge, Gurgaon. 3. Prosecution was launched on the statement of Kallu (PW-9). It was stated by him that on October 21st, 1997 at about 10 AM Kamal Meo (deceased), Mohar Khan-injured and another person came to his house situated in village Sikarpur. Kamal borrowed his scooter to go to village Sahalka. Kallu waited for Kamal for 2-3 hours but he did not return. Thereafter, he reached village Sahalka to know as to why Kamal had not returned. There, he learnt that Kamal with a few other persons had gone towards a nearby grove of kikkar trees. It was about 4 PM. Kallu also reached the grove and witnessed that all the accused-appellants were causing injuries to Kamal and Mohar Khan with their respective lathies. They were also abusing Kamal for informing the Delhi Police regarding their illegal activities and as a result thereof, one of their associates was Crl. Appeal No. 668-DB of 2000. 3 killed in a police encounter. After causing injuries to Kamal Khan and Mohar Khan, they dragged them to a vacant place and fled from the scene. Kallu witnessed the occurrence while hiding at some distance. Kamal died on the spot. Kallu brought Mohar Khan in a three-wheeler to the Hospital. On the statement of Kallu, First Information Report (Exhibit PG) was lodged in Police Station Taoru. Om Parkash, Assistant Sub-Inspector (PW- 15) reached the spot. Inquest proceedings (Exhibit (PO) were conducted. Site Plans (Exhibits PR and PS) were prepared. Blood stained earth was taken into possession vide recovery memorandum (Exhibit PQ). The autopsy on the dead body of Kamal was conducted by Dr. A.K. Gupta (PW- 13) on October 22, 1997. Six injuries were found. Out of them, four were fractures. These were :- fractures of both knee joint, right legs and left leg. The fifth injury was contusion on left shoulder. The sixth injury was found to be huge haematoma on the cut section of the scalp. It was opined by the Medical Officer that injury No.6 was individually sufficient to cause death in the ordinary course of nature. 4. Dr. N.D. Khangawal (PW-12) examined Mohar Khan and found three injuries on his person:-(i) One lacerated wound 1.5 cm x 5 cm on left knee joint; (ii) one lacerated wound 1 x 1 cm below the left knee joint; and (iii) one lacerated wound 1.5 x 1.5 cm on left medical malleolus. 5. Prosecution in support of its case, examined fifteen witnesses. The accused-appellants in their statements recorded under Section 313 of Code of Criminal Procedure, denied their complicity. 6. The star witnesses in this case were Kallu (PW-9)-eye witness-first informant and Mohar Khan-injured (PW-10). They have not Crl. Appeal No. 668-DB of 2000. 4 supported the prosecution case. In view of this, the prosecution relied upon the statement of Khurshid Ahmed (PW-11) who is a witness of last seen and Yusuf (PW-14), the alleged eye witness. Khurshid Ahmed is brother and Yusaf is brother-in-law (sister's husband) of Kamal (deceased). It is now to be seen as to whether the statement of these two witnesses were reliable, cogent and trustworthy for holding the appellants guilty for the murder of Kamal or not ? 7. It would be apposite firstly to take up the evidence of Yusuf. According to him, on the fateful day, October 21st, 1997, he along with Kamal (deceased) and Mohar Khan-injured were present in village Ransika. Kamal informed him that he had to go to village Salaka to meet the accused-appellants. Thereafter, the trio reached village Salaka by bus. From there, they took the scooter of Kallu and then went to the house of Ashu accused-appellant. The accused-appellants were present there. From there, on the asking of Ashu, all of them went towards the jungle. Ashu asked Kamal why he had informed the Delhi Police about their nefarious activities and as a result whereof, one of their accomplices Harun was killed in a police encounter. Kamal pleaded that he did not inform the Delhi Police. Thereafter all the accused-appellants brought lathies hidden in the bushes and started causing injuries to Kamal and Mohar Khan indiscriminately. He ran away from the spot but witnessed the occurrence from behind the Bandh (embankment). Many persons of the village gathered on the spot. He went to village Alimeo to inform his in-laws about the occurrence. From village Alimeo, he along with Khurshid, Babru Majid came to the spot and in his presence, investigation was carried on by the Police. The blood stained earth Crl. Appeal No. 668-DB of 2000. 5 was taken into possession vide recovery memorandum (Exhibit PN). In his cross-examination, he has stated that none of the accused-appellants was known to him prior to the day of occurrence. He learnt their names from Kamal when Kamal was talking to them. His village is situated at a distance of 63 Kms from the spot. 8. The evidence of Yusaf is not believable from any angle. His name does not figure in the FIR. Had he been a witness to the occurrence, his name would have been mentioned in the FIR. It is also not believable that Kamal (deceased), Mohar Khan and Yusaf firstly went to village Sikarpur and from there to village Ransika by a bus on the asking of Kamal to meet the accused-appellants. From Sikarpur, they went to village Salaka at the house of Ashu accused-appellant where all the accused- appellants were present and from the house of Ashu, the accused-appellants, deceased and the injured went to the jungle and murdered Kamal, where per Yusaf, they already had hidden the lathies in the bushes. How the accused- appellants could anticipate that the deceased would come to their house ? It is not the case of the prosecution that accused-appellants were aware of the fact that deceased would come to their house. So, question of hiding the lathies in the bushes could not have arisen. It also appears improbable that somebody comes to meet at some one's house and he, without any reason, asks him to accompany him to the jungle and to murder him and that too, in the company of two other persons. 9. Many persons had gathered at the spot after the occurrence. It is strange that Yusaf did not disclose that the accused- appellants caused the injuries to Kamal, rather, he went straightway to the Crl. Appeal No. 668-DB of 2000. 6 village of Kamal Alimeo which was at a distance of 63 KMs from the spot. It is not the case of the prosecution that out of fear, he did not inform the Police at the first instance. Had he witnessed the occurrence, his anxiety should have been to inform the persons gathered on the spot that accused- appellants had murdered his brother-in-law and to inform the Police but he did not. It is also one of the important factors to disbelieve his testimony. His conduct is wholly unnatural indicating that he is a witness introduced later on. The story propounded by Yusaf is also not believable if the same is read in conjunction with the statement of Khurshid Ahmad (PW-11), younger brother of Kamal (deceased) who stated that on October 21st, 1997, the accused-appellants came to his village Alimeo and took Kamal along with them and thereafter the dead body of Kamal was recovered from the school in village Salaka whereas Yusaf has stated that they had gone to the house of Ashu accused-appellant. Even otherwise, the word 'recovered' suggests that the occurrence was not witnessed by Yusaf. Khurshid Ahmad has not stated even a word that Yusaf had informed him that Kamal was murdered by the accused-appellant. Had he seen the crime, it would have been natural for him to inform Khurshid Ahmad about the occurrence having been witnessed by him. In view of this variance, the evidence of last seen comprised in the statement of Khurshid Ahmad (PW-11) can also not be believed. 10. The aforementioned circumstances raise a grave doubt about the veracity of the statements made by these two witnesses. 11. Thus, prosectuion failed to prove the case. At least, the appellants are entitled to the benefit of doubt. Consequently, both the Crl. Appeal No. 668-DB of 2000. 7 appeals are allowed. The judgments of conviction and orderes of sentence of are set aside. Accused-appellants are acquitted of the charges. (NAWAB SINGH) (K.S. GAREWAL) JUDGE JUDGE 20.8.2009. SN Crl. Appeal No. 668-DB of 2000. 8