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2005 DIGILAW 825 (PNJ)

Rakesh Khan v. State Of Haryana

2005-08-04

MEHTAB S.GILL, PRITAM PAL

body2005
Judgment Pritam Pal, J. 1. This appeal by Rakesh Khan, Balvinder Singh, Swaran Singh and Gurmukh Singh is directed against judgment of conviction dated October 16, 1998 and order of sentence dated October 22, 1998, whereby, they were convicted under Sections 302 and 307 read with Section 34 IPC, appellant Swaran Singh was also convicted under Sections 460 and 406 IPC and appellants, Rakesh Khan and Balvinder Singh were also convicted under Section 411 IPC and all the four appellants were sentenced as under :- All the 4 appellants namely Rakesh Khan,, Balvinder Singh,, Sawarn Singh and Gurmukh Singh. 302/34 IPC Each to undergo imprisonment for life and to pay a fine of Rs. 500/- each. In default of payment of fine to undergo further RI for six months. All the 4 appellants namely Rakesh Khan,, Balvinder Singh,, Sarwan Singh and Gurmukh Singh 307/34 IPC Each to undergo RI for ten years RI for ten years and to pay a fine of Rs. 500/- each. In default of payment of fine to further undergo RI for six months. Sawran Singh 460 IPC RI for ten years and to pay a fine of Rs. 500/-. In default of payment of fine,, to further undergo RI for six months. Sawran Singh 460 IPC To undergo RI for one year. Appellant Rakesh Khan and Balwinder Singh 411 IPC Each to undergo RI for two years. 2 The prosecution story, shorn of details, is as under :- On 20.8.1995, Dr. Harbans Lal Sharma (62 years) (PW9) in the company of his wife Smt. Madhu Sharma (51 years) since deceased had gone from Panchkula to Amritsar, in connection with giving evidence in a Court case. On the next date, i.e 21.8.1995, at about 5.45 P.M., they returned to their house bearing No. 22 Sector 7, Panchkula. On that date, at about 10.45 P.M., they had taken tea, meanwhile, someone rang a door-bell of their house. Thereupon, Smt. Madhu Sharma wife of Dr. Harbans Lal Sharma, went to the gate of the house and there four persons were found standing. One of them was Swaran Singh, Driver, who was introduced to them four months ago by Kamaljit Singh son of Harnam Singh Randhawa, resident of House No. 287, Sector 30-A, Chandigarh. They all came inside the house. Harbans Lal Sharma, went to the gate of the house and there four persons were found standing. One of them was Swaran Singh, Driver, who was introduced to them four months ago by Kamaljit Singh son of Harnam Singh Randhawa, resident of House No. 287, Sector 30-A, Chandigarh. They all came inside the house. Swaran Singh then pointed out towards one of his three companions and stated that his brother was ill for the last about 5-1/2 years. He then asked Dr. Harbans Lal Sharma to accompany them to Manimajra to examine him. Thereupon, the complainant told that it was too late to see the patient. Thereupon, Swaran Singh Driver requested the complainant to give his vehicle (white colour Maruti car) bearing No. PCM-182, so that the patient could be brought here from Manimajra. The complainant agreed to the request of Swaran Singh, driver and accordingly, Swaran Singh went away with the said car of the complainant. Thereafter, the complainant came to his office and sat there with the remaining three companions of Swaran Singh and then started talking to them. Immediately thereafter, all the three persons caught hold of Dr. Harbans Lal Sharma by the neck. When he tried to rescue himself, then all the three intended to kill him. Then he (the complainant) called his wife Madhu Sharma and asked her to ring up in the neighbourhood. Then, all the aforesaid three persons threw the telephone instrument on the floor and scuffled with her, as a result of which, the string of her salwar was broken. Thereafter, they strangulated her, as a result of which, she died at the spot. Thereafter, the aforesaid three persons fled away from the spot. Thereupon, the complainant was confused and went to the neighbourhood to inform about the mishap, but no body woke up. In the early morning of 22.8.1995, Dr. Harbans Lal Sharma, the complainant rang up to the police from the nearby house of Dr. Jolly, whereupon Om Parkash SISHO Police Station Panchkula alongwith the police party rushed to the place of occurrence and recorded the statement Ex.PK of Dr. In the early morning of 22.8.1995, Dr. Harbans Lal Sharma, the complainant rang up to the police from the nearby house of Dr. Jolly, whereupon Om Parkash SISHO Police Station Panchkula alongwith the police party rushed to the place of occurrence and recorded the statement Ex.PK of Dr. Harbans Lal Sharma in the above narration of facts at about 8.A.M, on which he made his endorsement Ex.PK/1, on the basis of which, a formal FIR Ex.PK/2 was ultimately recorded by Tara Chand ASI in Police Station, Sector 5, Panchkula at 8.30 A.M. At the spot, Om Parkash-SI (PW-12), who is the Investigating Officer prepared the inquest report Ex.PB. He also prepared rough site plan Ex.PO of the place of occurrence with its correct marginal notes in his hand. Then he sent the dead body of Smt. Madhu Sharma to the hospital through ASI Karam Singh for post mortem examination. At the spot, the statement of the witnesses were also recorded under Section 161 Cr.P.C. Dog-squad was also summoned from the office of Forensic Science Laboratory, Madhuban. A crime team from the said office also reached at the spot. The Complainant (Dr. Harbans Lal Sharma) was also got medico-legally examined vide MLR Ex.PF. From the spot, Om Parkash SI also took into possession blood-stained earth vide recovery memo Ex.PX. On 23.8.1995, SI Om Parkash again visited the place of occurrence alongwith SDC Ganga Bhushan and recorded the statements of the witnesses under Section 161 Cr.P.C. Thereafter, investigation of this case also remained with the CIA staff Panchkula till 27.8.1995. 3 On 24.8.1995, a V.T. Message was received from Hari Kailash ASI that the accused-appellants be chased and stopped as they were coming in Car No. CH-01D-9899. When the police party reached near Kale-Amb, two of the accused/appellants, namely, Swaran Singh and Gurmukh Singh, who were sitting on the rear seat of the Car managed to escape, whereas the other two, namely, Rakesh Khan and Balvinder Singh were nabbed. From the search of appellant Rakesh Khan, a gold bangle (Ex.P3) weighing 11 gram 300 miligram belonging to deceased Madhu Sharma was recovered, which was taken into possession vide recovery memo Ex.PM. From the search of appellant Balvinder Singh, another golden bangle (Ex.P4) of the decased was also recovered from the pocket of his pent which too, was taken into possession vide recovery memo Ex.PN. 4. From the search of appellant Balvinder Singh, another golden bangle (Ex.P4) of the decased was also recovered from the pocket of his pent which too, was taken into possession vide recovery memo Ex.PN. 4. On 27.8.1995, Om Parkash SI received a secret information regarding the whereabouts of the other two appellants, namely, Swaran Singh and Gurmukh Singh and thereupon, he raided the godown near village Mahesh pur from where both the appellants were arrested. From the personal search of Gurmukh Singh, one country made pistol and three live cartridges were also recovered. 5. On 15.9.1995, Dr. Harbans Lal Sharma and Vipul Bhardwaj, PWs went to the Police Station and there the complainant identified the golden bangles (Ex.P3 and P4) of his wife recovered from Rakesh Khan and Balvinder Singh, respectively, and in that behalf, a memo of identification Ex.PR was also prepared by the Investigating Officer. On 6.10.1995, Om Parkash SI also took into possession photographs Ex.P6 to Ex.P12 and their negatives Ex.P-13 to P- 19 from Bhim Sain, Photographer (PW11). On 10.11.1995, Registration Certificate (Ex.P-5) of the Car of the complainant was also taken into possession vide recovery memo Ex.PS. After completion of the investigation, all the four appellants were challaned in this case. 6. During the trial, all the appellants were charge-sheeted under different Sections of the Indian Penal Code by the trial Court vide its order dated 14.8.1996. All the appellants pleaded not guilty to the charges and claimed trial. 7. The prosecution, in order to substantiate its case, examined as many as 12 witnesses namely; Dr Prem Latta (PW1), who proved the post mortam report Ex.PC of Madhu Sharma deceased; Dr. Sivir Saxena (PW2) who prepared the medico-legal report Ex.PF of injured/complainant Dr. Harbans Lal Sharma; Constable Subhash Chand (PW3), who took the photographes of finger print from the spot; Ganga Bhushan (PW4) who had developed the finger prints at the spot; Tara Chand ASI (PW5), who recorded the formal FIR Ex.PK/2; Gurdial Singh Head Constable (PW6), who is a witness to the arrest of appellants Rakesh Khan and Balvinder Singh from whose possession golden bangles( Ex.P-3 and P-4) were also recovered in his presence. He is also a witness to the recovery of the aforesaid Car which was being driven by appellant Balvinder Singh; Hari Kailash SI (PW7), who got the recoveries effected during his partly conducted investigation of this case; Karam Singh ASI (PW8) had taken the dead body of Smt. Madhu Sharma for post mortem examination; Dr. Harbans Lal Sharma (PW9) is the complainant/injured in this case; Shri Inderjit Mehta (PW10) Chief Judicial Magistrate, Kaithal, (the then CJM, Ambala) before whom the appellants had refused to join identification parade; Bhim Sain (PW11) photographer proved the photographs Ex.P-6 to P-12 and Om Parkash SI (PW12), the main Investigating Officer in this case. 8. After closure of the prosecution case, the appellants were examined in terms of Section 313 Cr.P.C., wherein they denied all the incriminating evidence appearing against them. In defence, they examined one person namely Ashok Kumar (DW1), a Press Reporter of Punjabi Tribune, who proved the news item Ex.DD, which indicated that all the appellant/accused of this case were arrested on 24.8.1995. 9. The learned trial Court after appraising the evidence and hearing the learned counsel for the parties, convicted and sentenced the appellants, as indicated in the opening part of the judgment. This is how feeling aggrieved, they all have come up in this appeal before this court. 10. We have heard Mr. T.P.S. Mann, Advocate, learned counsel for the appellants, Mr. S.K. Garg, learned Addl. A.G. Haryana, and with their assistance have gone through the file carefully. 11. The first and foremost point of arguments of learned counsel for the appellants in this case is regarding the delay in lodging of the F.I.R of this case. In that behalf, he submitted that the occurrence is alleged to have taken place at 10.45 p.m, on August 21, 1995, whereas the statement Ex.PK of Dr. Harbans Lal Sharma, complainant/injured in this case was recorded at 8.00 a.m. on August 22, 1995 and ultimately, FIR Ex.PK/2 was recorded in the Police Station at Panchkula itself at 8.30 p.m by A.S.I. Tara Chand. The Special Report ultimately reached to the Chief Judicial Magistrate, Ambala at 3.10 p.m. on August 22, 1995. After putting-forth the aforesaid timings shown by the police in recording the FIR of this case, learned counsel for the appellants vehemently argued that there is a delay of about 9 hours and the same has not been explained by the prosecution. The Special Report ultimately reached to the Chief Judicial Magistrate, Ambala at 3.10 p.m. on August 22, 1995. After putting-forth the aforesaid timings shown by the police in recording the FIR of this case, learned counsel for the appellants vehemently argued that there is a delay of about 9 hours and the same has not been explained by the prosecution. In fact, the FIR in this case was got recorded by the complainant after due deliberations and manipulations in connivance with the police. Learned counsel further argued that the complainant has, infact, scant regard for truth, inasmuch as at the initial stage, he stated that on the date of occurrence, he had gone to Amritsar to attend the Court as a witness, while in his cross examination, he admitted that in fact, he had attended the Court at Amritsar on the date of occurrence as an accused person in a corruption case pending against him. His first version in the FIR regarding allegation of rape on his wife is that three appellants, namely Rakesh Khan, Balwinder Singh and Gurmukh Singh had attempted to commit rape upon her, but while appearing as PW-9, he (complainant) stated that his wife was raped by the said appellants, whereas in his cross-examination, he said that they (the aforesaid appellants) had not committed any rape on his wife. Admittedly, the complainant had taken divorce from his first wife, who now alongwith two daughters from the loins of the complainant is stated to have settled down in America. Madhu Sharma, since deceased, in this case, was married to him in 1991, which was an intercaste marriage and no child was born out of that wedlock. At that time, her age was 41 years, as stated by the complainant in his cross-examination. Learned counsel for the appellants has also pointed out that in his cross examination, the complainant admitted that his brother-in-law (wifes brother) Naresh Chopra, had moved an application to the police, however, he did not know the contents of the said application. But in his further answer to the question, he stated that he did not know whether in the said application, he (complainant) was alleged to have committed the murder of his wife. Mr. But in his further answer to the question, he stated that he did not know whether in the said application, he (complainant) was alleged to have committed the murder of his wife. Mr. Mann, learned counsel for the appellants after putting-forth the aforesaid points of arguments also pointed out some contradictions and confrontations from the cross examination of the complainant wherein the complainant was shown to have made material improvements in order to cover the inordinate delay in lodging of the FIR of this case. 12. At the second place, the learned counsel also attacked the recovery part of two bangles belonging to the deceased from appellants Rakesh Khan and Balwinder Singh. In order to contradict the recovery, learned counsel pointed out towards Exs. DA, DB and DC-arrest/seizure memos of these two appellants proved in the statement of S.I. Hari Kailash (PW-7). It was also then pointed out that in this case, appellant Gurmukh Singh was found to have carried a country made pistol with three live cartridges on the date of his arrest i.e. August 27, 1995 and on that account, a case under Section 25/54/59 of the Arms Act, was registered against him, in which he was acquitted. In this connection, learned counsel has placed on record Ex.DE a certified copy of the judgment dated October 25, 1996, passed by the learned trial Court. 13. At the last leg of his arguments, the learned counsel also submitted that in this case, photographs of finger prints were also taken from the spot and developed, but no report thereof has been brought on the file by the prosecution for the reasons best known to it. After putting-forth the aforesaid points, learned counsel contended that the prosecution has miserably failed to connect the appellants with the commission of crime of this case and hence, they are entitled to acquittal. 14. On the other hand, Mr. S.K. Garg, learned Addl. A.G. Haryana, has submitted that in this case complainant Dr. Harbans Lal Sharma was under shock after seeing the murder of his wife. Moreover, he too had sustained injuries and as such, he could not approach the police on the night of occurrence. He further submitted that in fact, he had approached his neighbours, but none of them came forward to help him, as the neighbours generally do not want to be involved themselves in any investigation of a criminal case. Moreover, he too had sustained injuries and as such, he could not approach the police on the night of occurrence. He further submitted that in fact, he had approached his neighbours, but none of them came forward to help him, as the neighbours generally do not want to be involved themselves in any investigation of a criminal case. It was also then submitted that after the occurrence, the complainant had also gone to the official residence of a Minister of Haryana, which is situated in the vicinity in order to phone the police, but the police guard standing at the gate informed him (the complainant) that the instrument of telephone was inside the residence of the Minister. Hence, the complainant could not succeed in reporting the matter to the police in night time. Further, advancing his arguments on the aforesaid points, he submitted that in the instant case, the delay, if any, in lodging of the FIR stood satisfactorily explained by the prosecution. 15. Refuting the arguments of learned counsel for the appellants regarding recoveries, it was argued by Mr. Garg, that, in fact, in this case, the police appeared to have been careless while preparing the seizure memos Exs. DA, DB and DC, proved in the statement of Hari Kailash S.I (PW-7). 16. At the fag end of his arguments, Mr. Garg contended that Dr. Harbans Lal Sharma-complainant (PW-9), who also sustained injuries during the occurrence, could not be said to have deposed falsely against the appellants. He then contended for believing the ocular version of the complainant/injured and for upholding the conviction and sentence passed by the learned trial Court. In support of his aforesaid points of arguments, Mr. Garg has relied upon the following catena of judgments i.e. Ramaswami Ayyanagar and others v. State of T.N., AIR 1976 SC 2027; Charan Singh alias Kala and Ors. v. The State of Punjab, 1992(2) RCR(Criminal) 306 and State of U.P. v. Nahar Singh (Dead) and others, 1998(1) RCR(Crl.) 867 (SC) : (1998)3 Supreme Court Cases 561. 17. We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties and find no force in any of the above points put-forth by Mr. Garg, learned Addl. A.G. Haryana, on behalf of the prosecution for the reasons given hereinafter. 18. 17. We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties and find no force in any of the above points put-forth by Mr. Garg, learned Addl. A.G. Haryana, on behalf of the prosecution for the reasons given hereinafter. 18. Admittedly, on August 21, 1995, the occurrence had taken place at about 10.45 p.m. in the house of the complainant bearing No. 22, Sector 7, Panchkula. The said house is surrounded by big houses, as stated by the complainant (PW-9). It is also established on the file that in the vicinity of the complainants house, there was an official residence of a Haryana Minister, where the police guard was also deployed in the days of occurrence. During scuffle, the wife of the complainant was strangulated and she died at the spot, whereas the complainant had also sustained the following injuries at the hands of the three appellants i.e Rakesh Khan, Balwinder Singh and Gurmukh Singh :- 1. Abrasion 1/2 cm on lower lip right lateral margin. There was some clotted blood. 2. Abrasion 1/2 cm on left cheek about 1" lateral to lip corner. Clotted blood was present and there was no swelling. 3. Lower lip swollen and minute abrasion also present. 4. Small abrasions about 2 mm x 2 mm 10 to 12 in number. Scatted was over chin, right and left cheek also. 5. Bruise about 1" broad and 10" long extending horizontly. Crossing the Adams apple on the neck starting on right side from nape of neck and terminating on left side over left sternocleidomastoid muscle. 6. Abrasion 2 mm x 2 mm, multiple about 7-8 scattered all over the neck on front surface. 7. Contusion about 2" 2x " on scalp over occipital region swelling was present, tenderness present. The complainant was fully conscious. All the above injuries were opined to be simple in nature by Dr. Sivir Saxena (PW-2), vide his MLR Ex. PF. Keeping in view the aforesaid facts and circumstances of this case, it is not understandable as to why the complainant did not approach the police in the night time immediately after the occurrence. Moreover, it was a summer season in the month of August and the distance of the Police Station from his house is hardly 2 km. PF. Keeping in view the aforesaid facts and circumstances of this case, it is not understandable as to why the complainant did not approach the police in the night time immediately after the occurrence. Moreover, it was a summer season in the month of August and the distance of the Police Station from his house is hardly 2 km. Even otherwise, it is a matter of common knowledge that in the big cities like Panchkula, people move about for strolling after their dinner till 11 or 11.30 p.m. The version of the complainant was that he had also gone to the house of Dr. Jolly, his neighbour, but he did not give any response. While in his statement, the complainant stated that in the morning Dr. Jolly had informed the police and thereupon, the police had come to his house at about 8.00 on August 22, 1995. In these given facts and circumstances and taking into account the fact that the complainant has also sustained only simple injuries, as reproduced above, it is not understandable as to what prevented him from going to the Police Station immediately after committing of the murder of his wife by the appellants. In this case, Dr. Jolly and the Guard of police posted at the residence of the Minister have not been cited as witnesses by the prosecution for the reasons best known to it. These two persons were the best persons to give the explanation for causing delay in lodging of the FIR of this case. The Special Report in this case reached to the Chief Judicial Magistrate, Ambala at 3.10 p.m. on August 22, 1995. The maximum journey of Ambala by bus from Panchkula is that of one hour. The formal FIR Ex. PK/2 was lodged at 8.30 p.m. This delay of more than six hours in sending the Special Report to the Chief Judicial Magistrate, Ambala again casts a doubt upon the case of the prosecution. All this shows that the complainant and the police had an ample time and opportunity for deliberations and manipulations before registration of the FIR in this case. At this stage, we have also gone through the above cited rulings relied upon by Mr. Garg, learned Addl. A.G. Haryana, and find that the facts contained therein are quite at variance from the facts of the case in hand. At this stage, we have also gone through the above cited rulings relied upon by Mr. Garg, learned Addl. A.G. Haryana, and find that the facts contained therein are quite at variance from the facts of the case in hand. Hence, no benefit can be derived by the prosecution from the observations made therein by their Lordships. 19 In this view of our foregoing discussion, it can safely be inferred that the prosecution has not been able to explain satisfactorily the delay of nine hours occurred in lodging of the FIR of this case. This fact itself cast aspersion and doubt in the genuineness of the prosecution story. 20. Now adverting to the recovery part of two gold bangles i.e Bangle Ex.P-3 and Bangle Ex.P-4 from Rakesh Khan and Balwinder Singh appellants respectively. Both these appellants were arrested in this case on August 24, 1995 and from their personal search, the aforesaid two bangles belonging to the deceased were recovered in the presence of Gurdial Singh Head Constable (PW-6) and Hari Kailash S.I. (PW-7), whereas as per the seizure memo Ex. DA prepared in respect of appellant Balwinder Singh, nothing was recovered from him. And further, as per the statement of Hari Kailash S.I. (PW-7) and seizure memo Ex. DB proved in his statement, two gold bangles weighing 22 grams and 12 miligrams and a Maruti car were recovered from appellant Balwinder Singh. Further, a perusal of Ex. DC, another seizure memo shows that one gold bangle weighing 11 grams 300 miligrams was recovered from Rakesh Khan appellant. These three seizure memos i.e. Exs. DA, DB and DC proved in the cross examination of Hari Kailash S.I. (PW-7) go a long way to create a dent in the prosecution story set up in this case by the complainant and Om Parkash S.I. (PW-12), who is the Investigating Officer in this case. It is an admitted fact that one of the appellants namely Gurmukh Singh, who was also found in possession of a country made pistol and three live cartridges at the time of his arrest has already been acquitted by the trial Court in a case under Section 25 of the Arms Act, registered against him. In this regard, a certified copy of the judgment Ex. DE dated October 25, 1996 is placed on the file. In this regard, a certified copy of the judgment Ex. DE dated October 25, 1996 is placed on the file. No doubt, in this case, all the appellants were produced before the Chief Judicial Magistrate, Ambala on August 24, 1995 and August 27, 1995 for giving their consent for identification parade and there they refused to be identified. No sanctity can be attached to this fact of evidence created at the instance of the police inasmuch as it is well proved on the file from the statement of the complainant that he had come to know about the arrest of the two of the appellants on the next date of his making the statement before the police. He further stated that on the third day, two culprits were shown to him in the CIA Staff at Mansa Devi. He also further stated that after one or two days thereafter, he was also told that the remaining two had also been arrested. This version of the complainant also finds corroboration from the News Item Ex. DD proved in the statement of Ashok Kumar DW-1, a Press Reporter. Thus, it is established that the appellants were, in fact, arrested on or before August 24, 1995. They were also shown to the complainant before making an application to Sh. Inderjit Mehta, CJM, Ambala (PW-10) to take their consent for identification parade. In this view of the matter, it is again highly doubtful that the appellants were arrested and recoveries were effected from them in a manner set up by the prosecution. Now adverting to the finger prints taken from the spot by the police; In this case, Subhash Chand (PW-3) had taken the photographs of finger prints from the spot, whereas Ganga Bhushan (PW-4) had developed the finger prints, but there is no report of these witnesses, which could connect any of the appellants with the commission of crime of this case. Admittedly, no property or any house hold articles except the two bangles (which too were not mentioned in the FIR) were looted from the house of the complainant by the appellants during the occurrence of this case. Not only that, none of the appellants was said to have carried any weapon at the time of occurrence in the present case. Again, all these facts go a long way to create a dent in the genuineness of the prosecution story. Not only that, none of the appellants was said to have carried any weapon at the time of occurrence in the present case. Again, all these facts go a long way to create a dent in the genuineness of the prosecution story. In the totality of the facts and circumstances of this case as discussed above, we have no hesitation to hold that in this case, the prosecution has not been able to bring home the guilt of the appellants beyond any reasonable doubt. In the result, this appeal is accepted and consequently, the judgment of conviction and order of sentence passed by the learned trial Court against the appellants, are set aside and the appellants are acquitted of the charges framed against them. Bail-bonds and surety bonds furnished by them in this case, shall stand cancelled.