Crl.A.No.279 DB of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of decision: January 29, 2008 Criminal Appeal No.279 DB of 2005 Makhan Singh and another ......Appellants vs. State of Haryana .....Respondent Criminal Appeal No.423 DB of 2006 Manoj Kumar .....Appellant vs. State of Haryana CORAM: Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice S.D.Anand Present: Ms. Anju Arora, Advocate and Mr. Jagjit Gill, Advocate for the appellant. Mr. Kulvir Narwal, DAG,Haryana for the State. JUDGMENT: This order will dispose of Criminal Appeal No.279 DB of 2005 filed by Makhan Singh and Tarsem Lal, accused and Criminal Appeal No.423 DB of 2006 filed by Manoj Kumar accused against their conviction under sections 302/307/392 IPC, for which they have been sentenced to undergo imprisonment for Crl.A.No.279 DB of 2005 2 life and other sentences, which are concurrent with the life imprisonment, and fine. Ajit Singh PW8 made statement Ex.PJ on 28.5.2000 at 11.15 PM, which led to registration of FIR. The statement is to the effect that Ajit Singh PW8 was a teacher in a primary school in District Jalandhar. He was friend of Karnail Singh, deceased who was also a teacher in a neighbouring school. Rajwinder Kaur, daughter of Karnail Singh was married to Sukhjinder Singh in February 2000. Sukhjinder Singh was living in England. His wife Rajwinder Kaur was to go to join her husband on 30.5.2000 from Delhi Airport. On 28.5.2000, PW8 Ajit Singh, deceased Karnail Singh, his nephew Sukhwinder Singh (sister's son) PW9, Rajwinder Kaur, Jaswinder Kaur, Surinder Kaur PW6 and Balbir Kaur PW25 left for Delhi in a Trax vehicle. At 10 PM, they reached near Country/English wine shop, GT Road, Samani ahead of Pipli. They decided to purchase a bottle of liquor. Ajit Singh, Karnail Singh and Sukhwinder Singh went to the liquor shop. Ajit Singh went inside the shop ahead while Karnail Singh and Sukhwinder Singh were also with him. He took out a currency note of denomination of Rs.500/- and gave it to the employee of the liquor vend. Karnail Singh offered to make payment of Rs.200/- from smaller denomination currency and took out two currency notes of denomination of Rs.100/- each. Ajit Singh had a sum of Crl.A.No.279 DB of 2005 3 Rs.50,000/- with him. The employee of the liquor vend snatched that amount from him. Ajit Singh held the said employee in his grip to take the money back. Karnail Singh and Sukhwinder Singh also intervened to recover the amount. The said employee fired from a pistol which hit in the stomach of Sukhwinder Singh. He fired another shot which hit Karnail Singh, deceased on his forehead. Karnail Singh died on the spot. He also fired another shot in the stomach of Sukhwinder Singh. Thereafter,he ran away. Ajit Singh followed to catch him. Rajwinder Kaur, wife of Karnail Singh and Jaswinder Kaur came in front of the liquor vend after hearing the sound of bullet. Ajit Singh heard the noise of the girl that their father had died. He left chasing the culprit and returned back. There were three other boys in the shop who also ran away. He asked Sukhwinder Singh to take the vehicle to Pipli to inform the police. Sukhwinder Singh drove the vehicle towards Pipli and met ASI Simru Ram PW30. The boy who had fired was 25-30 years, wheatish colour, slim body, clean shaven and was wearing white shirt and could be identified. PW30 ASI Simru Ram on receiving a telephone message that a fire shot had taken place, was proceeding towards the liquor vend and he met Ajit Singh. He sent the dead body of Karnail Singh to L.N.J.P Hospital, Kurukshetra and prepared rough site plan. He also recovered blood stained earth, T-shirt and brick. He also recovered one 'Parna' and one Crl.A.No.279 DB of 2005 4 copper ring. He also joined Vijay Kumar, Rajesh Kumar and Vinod Kumar, owner and employees of liquor vend and others in investigation. Jaswinder Kaur and Rajwinder had gone abroad. After completing investigation, he sent up the appellants for trial. During investigation, Ajit Singh PW8 filed a petition in this Court under section 482 Cr.PC being Criminal Misc.No.23939 M of 2000, Ex.D1, which was decided on 8.11.2000. The grievance in the said petition was that the police officials were trying to hush up the matter against the owner and employees of the liquor vend who were involved in the crime and the investigation be handed over to CBI or any other independent agency. In the reply filed by Deep Ram, Incharge CIA Staff, Kurukshetra, it was stated that the petitioner himself had denied involvement of liquor contractor and his employees and real employees were the appellants. It was submitted on behalf of PW8 Ajit Singh that the culprits were owner and employees of liquor vend who were being named as eye witnesses by the local police. Taking this into account, this Court directed that investigation be handed over to the Crime Branch to be investigated by an officer not below the rank of Superintendent of Police of the Crime Branch. Operative part of the order of this Court is as under:- “The present case pertains to a case of robbery and Crl.A.No.279 DB of 2005 5 murder besides attempt to murder. Admittedly, the case is still at the stage of investigation. According to the petitioner, who is injured complainant, the persons who have been named as eye witnesses by the local police, in fact, are the culprits. After hearing the learned counsel for the parties and after taking into consideration the facts and circumstances of the present case in my opinion, it is a fit case where the investigation of this case should be transferred from the local police/CIA staff, Kurukshetra, to the crime Branch of the Haryana Police so that the matter may be thoroughly investigated and the real culprits are brought to book. For the reasons recorded above, the present petition is allowed and the investigation of the case being FIR No.124 dated 28.5.2000 under Sections 302/307/392 IPC of PS Thaneser is transferred to the crime Branch of the Haryana Police. It is further directed that the matter shall be investigated by an officer not below the rank of Superintendent of Police of Crime Branch. It is further directed that the investigation shall be completed within three months of the receipt of a copy of this order by the Inspector General of Police, Haryana, Crime Branch either from the court or from the petitioner. It appears that the Crime Branch continued the same line of investigation and instead of taking action against the owner or employees of the liquor vend, who, according to injured eye Crl.A.No.279 DB of 2005 6 witnesses, Ajit Singh who lodged the FIR and Sukhwinder Singh, injured PW made the said owner of the liquor vend and the employees as witnesses being PW13 Vijay Kumar, PW14 Vinod Kumar, PW22 Rajesh Kumar. The appellants were sent up for trial. The prosecution, apart from other evidence, examined two sets of eye witnesses. One set comprised of Ajit Singh PW8, Sukhwinder Singh PW9, Balbir Kaur, PW25 and Surinder Kaur PW26 and other set comprised of Vijay Kumar PW13, Vinod Kumar PW14 and Rajesh Kumar PW 22. Dr. OP Gogia, PW1 conducted post mortem examination on the dead body of Karnail Singh and found following injuries:- “1. A lacerated wound on the left side of the face extending from left lateral canthus (angle) of the eye, left cheek and left angle of the mouth and left mandible. The wound was 5” long, the margins of the wounds were irregular and inverted. The wound was going deep into the oral cavity and destroying the underlying muscles, vessels and bones in the region. There were multiple fractures of the left maxilla, nasal bones, teeth of the upper jaw and fracture of the mandible with few lower teeth fracture into the multiple pieces. There was collection of extensive clotted blood in the oral cavity. The both eye balls were crushed. The wound was going deep to the right side of the face;' and; Crl.A.No.279 DB of 2005 7 2. There was a big lacerated wound on the right side of the face. Extending from the nasion to the right forehead, right maxilla and right side of the upepr jaw right mandible to the centre of the chin. This wound was 8.5” long, the margins were irregular and inverted in nature. The underlying muscles and the bones were destroyed and crushed.” According to him, the death was on account of above injuries which were ante-mortem and sufficient to cause death in the ordinary course of nature. Time between post mortem and death was six to 24 hours. PW2 Dr. NP Singh examined injured Sukhwinder Singh PW9 and found following injuries:- “Lacerated wound 2 cms x 1.5 cm present over the right lateral side of the abdomen 8 cms from midline and 9 cm interolateral and right side to the umbilicus. Surrounded by multiple lacerated wounds of various size and shape were present. Active bleeding was present, corresponding hole was present in shirt and Banyan and socked with blood. Probing not done. Advised General Surgeon opinion and X-ray abdomen; and; 2. Lacerated wound 2 cm x 1.5 cm was present over the right side of abdomen 9 cms inferior lateral to the injury No.1 and surrounded by various lacerated wound of various size and shape, active bleeding was present. Corresponding hole was present in shirt Crl.A.No.279 DB of 2005 8 and Banayan and socked with blood, Probing not done. Advised General Surgeon opinion & X-ray.” According to him, the weapon used was firearm. Dr. NP Singh PW2 also examined Ajit Singh PW8 and found the following injury:- “Lacerated wound 1.5 cm x 1 cm present over the anterior medial side of left forearm just above the wrist joint bleeding was present. Advised for x-ray and orthopaedic surgeon. The other evidence led by the prosecution comprises of recovery and disclosure statements. ASI Maya Chand PW10 proved recovery of Parna (a long cloth) and a copper ring. He also proved recovery of T-Shirt, lifting of blood stained earth and a brick. PW12 Kashmir Chand proved the disclosure statement of accused Makhan Singh Ex.PN that he looted a sum of Rs.22000/- and disclosure statement Ex.PM of Tarsem Lal regarding causing of injury. PW18 Inspector Desraj proved statement of Makhan Singh and Tarsem Lal, accused about the demarcation of place of occurrence. SI Sukhwinder Singh PW9 proved disclosure statements of Makhan Singh and Tarsem Lal. Makhan Singh denied the prosecution allegations and stated that he was falsely implicated at the instance of Vijay Kumar, liquor contractor and Kashmir Chand. Makhan Singh and Tarsem Lal appeared as DW1 and DW2 and deposed that their Crl.A.No.279 DB of 2005 9 signatures were taken on blank papers by CIA staff, Kurukshetra by force. The trial court, after considering the evidence on record, held the case against the appellants proved beyond reasonable doubt and convicted and sentenced them. The substance of observations and reasons of the trial court is as under:- (i)Version given by one set of witnesses i.e. Ajit Singh PW8 and Sukhwinder Singh PW9, Balbir Kaur PW25 and Suridner Kaur PW 26 and by the second set of witnesses, Vijay Kumar PW13, Vinod Kumar PW14 and Rajesh Kumar PW15, was not irreconcilable. Ajit Singh and Sukhwinder Singh had not named anyone and did not identify the accused. Vinod Kumar, Rajesh Kumar and Vijay Kumar supported the occurrence and also identified the accused. Ajit Singh and Sukhwinder Singh were not aware of the presence of Vijay Kumar earlier to the present occurrence. (ii)Version given by Vijay Kumar is that he was partner in the liquor vends at Village Umri and Samani. On 28.5.2000, he went to vend at Umri where Rajesh Kumar PW22 was his employee. He collected sale proceeds from there, and came to vend at Samani alongwith Rajesh Kumar. Stock at Umri vend had exhausted and was to be collected from Samani. He placed the cash brought from Umri in the cash box. Rajesh Kumar PW22 with the help of Vinod Kumar Crl.A.No.279 DB of 2005 10 PW14, employee at vend at Samani placed four cases of bear in the car of Vijay Kumar PW13. Vijay Kumar PW13 asked for a quarter bottle of Royal Challenge from Vinod Kumar and started taking liquor by sitting on a chair. When he was preparing second peg, he realised that some one had put a parna (a long cloth) around his neck. A shot was fired in the air at his back. He disengaged himself from the parna and fled towards Pipli. Another shot was fired at him by Makhan Singh. Vijay Kumar ran fast and reached a dhaba. He wanted to inform the police but he did not have telephone. His mobile phone had been left at the shop. He disclosed the matter to the dhaba owner who suggested the use of a mobile of an agriculturist who was working in the fields at some distance. Vijay Kumar did not take the risk and returned back to his vend. In his absence, the accused went inside the vend and one of them took the cash from cash box and escaped. His name was Pokhar. Other three accused Makhan Singh, Tarsem Lal and Manoj Kumar remained there. Ajit Singh, Sukhwinder Singh and others came in a trax jeep. The boy who snatched the money was Makhan Singh. Makhan Singh called for the help of Tarsem Lal who was standing guard at the entrance and Manoj Kumar who was standing near the cooler of the vend. The accused fire shots. The shot was fired by Tarsem Lal as Makhan Singh was in the grip of Ajit Singh. Ajit Singh mistook the Crl.A.No.279 DB of 2005 11 accused as the employees of the vend. Vijay Kumar had made a phone call at P.S. Pipli on which ASI Simru Ram left for the liquor vend. During investigation, involvement of the accused was established. (iii)Discrepancies pointed out on behalf of the accused were not significant. Failure of Ajit Singh, Sukhwinder Singh, Balbir Kaur and Surinder Kaur to identity the accused was not material as they were from outside. The accused were duly identified by Vijay Kumar, Vinod Kumar and Rajesh Kumar. Vijay Kumar had identified the accused even if he had escaped from the vend. There was no contradiction from the fact that parna was put around the neck of Vijay Kumar by only one accused. There was no contradiction on the issue of firing of shot or about the time for which the police remained at the place of occurrence. Statement of Vijay Kumar was recorded by Veer Bhan PW23 immediately after the occurrence. Contradiction about looting of the cash by one or all of the accused was also explained. (iv)Disclosure statements were admissible as the said statements led to discovery of facts. All the accused had common intention to loot the cash from the vend and of killing any one who created obstruction. We have heard learned counsel for the parties and perused the record. Crl.A.No.279 DB of 2005 12 Main contention raised by the learned counsel for the appellants is that Ajit Singh PW8 and Sukhwinder Singh PW9 were both injured witnesses and they did not identify the accused Rather, they lodged protest against implication of the present appellants for the real accused. They even filed an application in this Court pointing out that the investigation being conducted was not fair and real accused were being left out. Inspite of this, the accused have been made eye witnesses and to save them, the appellants were implicated. PW13 Vijay Kumar, PW14 Vinod Kumar and PW22 Rajesh Kumar were interested in saving themselves and at their instance, the appellants have been falsely implicated and if their evidence was excluded, there was no evidence against the appellants. Version of Ajit Singh and Sukhwinder Singh was totally different. Pokhar Ram, co-accused whose trial was separated, has been acquitted by the trial court vide judgement dated 12.2.2005 on the ground that his disclosure statement was hit by section 25 of the Evidence Act and there was no incriminating material against him. We find from statement of PW8 Ajit Singh who was injured in the incident and who had lodged the FIR and whose evidence has high probative value that he did not identify the appellants. Same is the version of PW9 Sukhwinder Singh, PW25 Balbir Kaur and PW26 Surinder Kaur who were also eye Crl.A.No.279 DB of 2005 13 witnesses. Ajit Singh had earlier filed a petition in this Court and stated that the actual culprits were the liquor vendor and his employees and no body else. This Court, directed change of investigating officer. Inspite of this, the liquor vendor and his employees have been made eye witnesses and it is on the basis of their testimony that the appellants have been convicted. In these circumstances, the appellants, having not been identified by the witnesses whose version has higher probative value, are entitled to benefit of doubt. Accordingly, we allow these appeals and set aside conviction and sentence of the appellants. Before parting with the case, we would like to observe that there is a dire need for follow up action by investigating agency in cases where prosecution cases fail, particularly on account of discrepancies of the investigating agency itself and more so when doubt is expressed about fairness of investigation. Present case may be one such case. We direct the State of Haryana to look into this aspect of the matter and examine the viability of creating a special cell to or other suitable mechanism to look into cases where prosecution fails, with a view to examine whether any further follow up action ought to be taken by way of further investigation or by way of any departmental action for misconduct of any functionaries involved in the investigation. A copy of this Crl.A.No.279 DB of 2005 14 order be sent to Chief Secretary, Haryana. The appeal is disposed of accordingly. (Adarsh Kumar Goel) Judge January 29, 2008 (S.D.Anand) 'gs' Judge Note: Whether to be referred to Reporter or not?