-1- Criminal Appeal No.396-SB of 1998. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.396-SB of 1998. Date of Decision: January 19, 2010. Harkesh Chand ... Appellant VERSUS State of Haryana and another ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. S.S. Dinarpur, Advocate, for the appellant. Ms. Sushma Chopra, Additional Advocate General, Haryana. -.- MOHINDER PAL, J. This appeal has been filed by appellant Harkesh Chand against the judgment of conviction dated 1.5.1998 and the sentence order dated 2.5.1998 passed by the learned Additional Sessions Judge, Ambala, vide which he was convicted and sentenced under Sections 343 and 323 of the Indian Penal -2- Criminal Appeal No.396-SB of 1998. Code (hereinafter referred to as `the Code). Under Section 343 of the Code, the appellant was sentenced to undergo rigorous imprisonment for one year and under Section 323 of the Code to undergo rigorous imprisonment for six months. Both the sentences of imprisonment were ordered to run concurrently. Tilak Raj, co-accused of the appellant, was acquitted of the charge framed against him. Accused-appellant Harkesh Chand was convicted and sentenced, as afore-stated, in the complaint filed by Smt. Savitri Devi - complainant respondent No.2 (since deceased) against the accused under Sections 304/ 109 of the Code. Dharam Pal, husband of the complainant, was working as `Seeri' (agricultural labourer) with one Lajja Ram and used to carry vegetables from the fields in the cart to Saha. On 17.4.1985, Tilak Raj (acquitted accused) lodged a report with the police of Police Station Mullana that he had assigned four items of cloth worth Rs.1358.76 to Dharam Pal for carrying the same to Village Bihta. However, the cloth worth Rs.1358.76 was pilfered by somebody on its way. On the basis of this complaint by Tilak Raj (acquitted accused), accused-appellant Harkesh Chand, who, at the relevant time was posted as Assistant Sub Inspector at Police Station Mullana, on the morning of 17.4.1985, took away Dharam Pal from his house. Dharam Pal was illegally detained by the appellant and was bodily tortured by him. Lajja Ram, Hari Ram, Paramjit and other respectables had been visiting Police Station,Mullana, from 17.4.1985 to 21.4.1985 to assure -3- Criminal Appeal No.396-SB of 1998. the appellant regarding the honesty of Dharam Pal, but with no result. On 21.4.1985, Dharam Pal was released from the illegal custody of the appellant. At that time, the body of Dharam Pal was completely swollen due to injuries on his person. Ultimately, due to those injuries, Dharam Pal expired on 30.4.1985. When no action was taken against the appellant by the police, the complainant filed the instant complaint. After recording preliminary evidence and summoning the accused under Sections 304 and 304 read with Section 109 of the Code, the case was committed to the Court of Session by the Ilaqa Magistrate. Charge under Section 304 of the Code was framed against the appellant and under Section 304 read with section 109 of the Code against Tilak Raj (acquitted accused). The appellant did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined Dr.Arun Bala Bedi (P.W.1), complainant Savitri Devi (P.W.2), Amarjit Singh alias Paramjit Singh (P.W.3), and Dr. S.K. Mathur (P.W.4). In his statement recorded under Section 313 of the Code of Criminal Procedure, appellant Harkesh Chand denied the prosecution allegations and stated as under:- “ Case is false and the witnesses have deposed falsely. I was posted as ASI Police Station Mullana. Sudeshpal Singh was Sarpanch of Village Bihta during those -4- Criminal Appeal No.396-SB of 1998. days. He had fought the election of Sarpanch against Paramjit Singh (PW) and Lajja Ram was supporting him. Earlier he had fought the election of Sarpanch against the father of Paramjit Singh. Pammi and Lajja Ram used to say wrongly that I used to do illegal works on the asking of Sudeshpal Singh. Sudeshpal Singh was known to me. Lajja Ram and Paramjit Singh used to threaten me time and again that they would involve me in a false case.” No evidence was led by the appellant in defence. I have heard the learned counsel for the parties and have gone through the records of the case. In this case, both complainant Savitri Devi (P.W.2) and Amarjit Singh alias Paramjit Singh (P.W.3) have proved that Dharam Pal (since deceased), husband of Savitri Devi (P.W.2), had been illegally detained in custody and physically assaulted by appellant Harkesh Chand, who, at the relevant time, was posted as Assistant Sub Inspector at Police Station, Mullana (District Ambala). Learned counsel for the appellant argued that there was no eye-witness of the occurrence and the facts deposed by Savitri Devi (P.W.2) and Amarjit Singh alias Paramjit Singh (P.W.3) do not get corroboration from any eye-witness. If a person is illegally detained by the police and physically tortured -5- Criminal Appeal No.396-SB of 1998. at the Police Station, except the police and the other criminals in the custody of the police at the Police Station, there can be no eye-witness to such harassment of the victim. Savitri Devi (P.W.2) and Amarjit Singh alias Paramjit Singh (P.W.3) cannot dare to falsely implicate a police officer of the status of the appellant if Dharam Pal (deceased) had not been illegally detained by him (appellant) in the Police Station and subjected to physical torture. It is surprise to note that in his statement recorded under Section 313 of the Code of Criminal Procedure, appellant Harkesh Chand stated that Amarjit Singh alias Paramjit Singh (P.W.3) used to threaten him that the appellant would be involved in a false case. Such a threat to a police officer of the rank of Assistant Sub Inspector by a commoner like Amarjit Singh alias Paramjit Singh (P.W.3) is incomprehensible. Learned counsel for the appellant further argued that the death of Dharam Pal, husband of the complainant, had taken place on 30.4.1985 but the complaint was filed in the Court quite belatedly on 21.8.1985. According to the learned counsel, the delay, which has remained unexplained on record, has made the case of the prosecution doubtful. After giving careful thought to this argument of the learned counsel for the appellant, I do not find any merit therein. The complainant was an illiterate lady. She had been prosecuting the complaint since 21.8.1985. She had been running from pillar to post to seek justice. No doubt, there is -6- Criminal Appeal No.396-SB of 1998. delay in filing the instant complaint, but the allegations of the complainant show that a delegation of about 300 persons had met the Superintendent of Police, Ambala, on 30.4.1985, but no action was taken against the appellant. The complainant had also made representations on 6.5.1985 and 12.8.1985 and sent delegations to the Deputy Commissioner, Ambala, Superintendent of Police, Ambala and the Commissioner, Ambala, but the police did not register the case. Consequently, she was compelled to file the instant case. Unfortunately, the file of this case was burnt during Anti Mandal Commission riots at Ambala after the summoning order had been passed against the accused by the Ilaqa Magistrate. The file was reconstructed and a fresh summoning order was passed by the Ilaqa Magistrate, Ambala. It was thereafter that the case was committed to the Court of Session. In her cross-examination, complainant Savitri Devi (P.W.2) stated that since she was illiterate, she could not give the names and designations of the officers whom she had met. Obviously, since the original record of the complaint was burnt, the complainant was not in a position to produce the copies of the complaints made by her to the various authorities. Keeping in view the circumstances, detailed above, the delay in filing of the instant complaint by the complainant is well understandable. The evidence led by the complainant does not leave any chances of fabrication. As such, the delay in filing the complaint does not affect the merits of the prosecution case. Dharam Pal was illegally kept for five days in Police -7- Criminal Appeal No.396-SB of 1998. Station, Mullana, by the appellant, who was then posted as Assistant Sub Inspector in that Police Station. Savitri Devi (P.W.2) has deposed that when she went to the Police Station, she saw that her husband was being physically assaulted by the appellant. She further deposed that when Dharam Pal was released from illegally custody by the appellant, his body was swollen. She further deposed that the legs and chest of her husband were swollen and he could not swallow milk from his throat. She further stated that she did not get her husband medically examined as she had no money. Amarjit Singh alias Paramjit Singh (P.W.3) has deposed that after three/four days of the arrest of Dharam Pal, he along with the complainant and others had gone to the Police Station and met the appellant. Nothing was recovered from Dharam Pal. His testimony further shows that Dharam Pal was severally beaten by the appellant. He further stated that when Dharam Pal was released by the appellant from illegal custody, he was feeling pain in his legs and injuries were visible on his feet. No doubt, Amarjit Singh alias Paramjit Singh (P.W.3) was not examined by the complainant in her preliminary evidence, but that does not affect the veracity of his statement because his name finds mentioned in the complaint itself. Therefore, it cannot be said that he is a procured witness. It is true that Dr.Arun Bala Bedi (P.W.1), who had conducted autopsy on the dead body of Dharam Pal on 1.5.1985 did not find any mark of external injury, but this fact does not warrant that Dharam Pal was not having any injury on his body when he was -8- Criminal Appeal No.396-SB of 1998. released from the illegal custody of the appellant on 21.4.1985. Dr.Arun Bala Bedi (P.W.1) had opined that Dharam Pal died of lung disease. Dr.S.K. Mathur (P.W.4), who was Associate Professor, Department of Pathology, Medical College, Rohtak, had conducted histopathological examination on the portions of lungs of Dharam Pal. After examination, he found that the portion of right lung of Dharam Pal showed changes suggestive of lobar pneumonia whereas the portion of left lung showed only congestion and edema. It was on account of this medical evidence furnished by Dr.Arun Bala Bedi (P.W.1) and Dr.S.K. Mathur (P.W.4) that the appellant was acquitted of the charge framed against him under Section 304 of the Code. In view of the above, the appellant has rightly been convicted for the offences punishable under Sections 343 and 323 of the Code. The sentence awarded to the appellant for the said offences also commensurates with the offence committed by him. Resultantly, this appeal is hereby dismissed being without any merit. January 19, 2010. ( MOHINDER PAL ) ak JUDGE