Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 2931 (PNJ)

Dharamvir v. State Of Haryana

2010-10-25

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. The present appeal is directed against the judgment and order dated 8/11.5.2001 passed by the learned Additional Sessions Judge, Sonepat (for short `the trial Court), whereby the accused/appellant has been convicted for the offence and sentenced as under :- Section 392 IPC To undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 3,000/- or in default of payment of fine to further undergone for a period of one year. Section 394 IPC To undergo for a period of seven years and to pay a fine of Rs. 5,000/-or in default of payment of fine to further undergo rigorous imprisonment for a period of two years. Section 397 IPC To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5,000/- or in default of payment of fine to further undergo rigorous imprisonment for a period of three years. 2 Brief facts of the prosecution case are that on 27.11.1999, ASI Virender Singh was going towards Kishora turn in connection with patrolling alongwith other police officials. He saw there a maruti car by the side of road and also noticed an injured person, who was lying in the ditches. ASI Virender Singh picked up the injured and took him to the General Hospital for treatment. The injured Ashok Kumar, herein, `the complainant gave statement, Ex. PG, to the effect that he was running cloth business at Panipat. He started his journey for Delhi at about 12 O clock in connection with his business work in a car bearing registration No. PB- 10AK-2203, being driven by Dharamvir, herein the appellant. The complainant was carrying Rs. 3 lacs and a draft drawn on J & K Bank in a red colour bag upon which, letters A.K. were embroided. When they were at a distance of about 50 yards from Kishora turn, the appellant stopped the car, pressed his throat and hit him with iron rod and inflicted injuries on various parts of his body. The appellant snatched his bag and ran away from the spot. The complainant further submitted that during the scuffle, wind screen of his car was also broken. 3. On the basis of statement, Ex. PG, formal FIR, Exhibit PG/2, was recorded. 4. The accused/appellant was arrested on 15.12.1999. 4. The appellant snatched his bag and ran away from the spot. The complainant further submitted that during the scuffle, wind screen of his car was also broken. 3. On the basis of statement, Ex. PG, formal FIR, Exhibit PG/2, was recorded. 4. The accused/appellant was arrested on 15.12.1999. 4. The accused/appellant was charge shetted for the offence punishable under Sections 392, 394 and read with Section 397 of IPC, to which, he pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined as many as ten witnesses, namely, Dr. Poornima Ahuja, as PW1; HC Sat Narain, as PW2; HC Ram Prasad, as PW3; C. Inderpal, as PW4; Ashok Kumar, as PW5; HC Kapur Singh as PW6; Rajan as PW7; ASI Virender Singh, as PW8; SI Sahab Singh, as PW9 and Kaushalya Rani, as PW10. 6. PW1- Dr.Poornima Ahuja, who medico-legally examined the complainant, deposed that she advised the patient for x-ray of skull and also for Surgeons opinion. During cross-examination, he admitted that the complainant was fully conscious at the time of his medical examination. She also admitted that the injuries on the person of complainant were possible if the vehicle gets stagnated at once by any impact. 7. PW3-HC Ram Prasad, deposed that he joined the investigation of this case with SI Sahab Singh. He further deposed that SI Sahab Singh interrogated the appellant in his presence. The appellant made disclosure statement that he kept concealed an iron road underneath the brush near Kishora Chowk. In cross-examination, he admitted that he did not know whether SHO tried to join any independent witness at the place or not. 8. PW5-Ashok (complainant) deposed that on 27.11.1999 at about 12 O clock, he started his journey, having cash amounting to Rs. 3 lacs, for Delhi to purchase the articles. Appellant Dharamvir was driver of his car. He further deposed that when they crossed Murthal, accused/appellant stated him that he was feeling hot and asked him to put off his shirt. He further deposed that when the appellant started putting off his shirt, he placed his legs on the dash board. When he had a concussion, the appellant pulled him with the legs and took to the bushes. He further deposed that the appellant hit him with a iron rod. As a result, he became unconscious and the appellant ran away from the spot alongwith the money. When he had a concussion, the appellant pulled him with the legs and took to the bushes. He further deposed that the appellant hit him with a iron rod. As a result, he became unconscious and the appellant ran away from the spot alongwith the money. He further deposed that after some time, police came at the spot and brought him to Civil Hospital, Sonepat. In cross- examination, he admitted that he employed the accused/appellant around 20-25 days prior to the occurrence. He did not remember whether he told the police or not that the accused/appellant stated that he was feeling hot and wanted to remove his shirt. He also admitted that he did not tell the police that he was sitting by the side of the appellant. He further admitted that he did not remember whether he told the police that he placed his legs on dash board. He also admitted that he himself asked the appellant to take the money and not to kill him. 9. PW7-Rajan (son of the complainant), deposed that on 15.12.1999 when he was going to P.S. Rai to enquire about the present case, he met with SHO Sahab Singh near Bahalgarh circle. After some time, he saw a person, who was going, having a dirty sheet wrapped around his body, towards G.T.Road from Meerut side and on seeing the police party, he returned and started running. On the basis of suspicion, the police party chased and apprehended him. During interrogation, a red bag containing Rs. 1.45 lacs and a cheque of Rs. 6,000/- was recovered from him. He further deposed that he concealed the remaining amount in the Kutia (hut) of some Baba at Rishikesh. He admitted in cross- examination that the accused did not tell anything about the rod and the accused did not sign any paper in his presence. 10. PW8-ASI Virender Singh deposed that on 27.11.1999, he alongwith other police official was going on patrolling. He further deposed that when they were coming from the side of village Kumasur towards Kishora turn, they found a red coloured Maruti car parked on one side of the road. They also noticed that an old man was lying injured in the ditches. They picked up him and brought to Civil Hospital, Sonepat for treatment. Thereafter, he recorded his statement, Exhibit PG. They also noticed that an old man was lying injured in the ditches. They picked up him and brought to Civil Hospital, Sonepat for treatment. Thereafter, he recorded his statement, Exhibit PG. He further deposed that on 15.12.1999 at about 2.00 p.m. he alongwith C. Ram Parshad was present with SI/SHO Sahab Singh at Bahalgarh Circle, where Rajan, PW5, came there and in his presence, the accused was apprehended. In his cross-examination, he admitted that no jeep was allotted at Police Post Kumaspur and they were going on patrolling on foot. 11. SI Sahab Singh, PW9, reiterated almost the same version given by ASI Virender Singh, PW8. 12. After completion of prosecution witnesses, the accused-appellant was examined under Section 313 of the Code of Criminal Procedure in which he denied all other incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. 13. After hearing both the parties, the trial Court convicted the accused/appellant under Sections 392, 394 and 397 of IPC and sentenced him as the term noticed at the outset of para 1 of this judgment. 14. Learned counsel for the appellant has argued that presence of Rajan, PW7, is highly doubtful. He has referred to the statement of Rajan, PW7, that when he was on the way to Police Station, Rai on 15.12.1999 to inquire about the case and reached near Bahalgarh, he found Jeep of SHO Sahab Singh there. In the meantime, the appellant, having dirty sheet wrapped around his body, was seen going towards G.T. Road from Meerut Side. On seeing them, the appellant immediately returned and started running. On the basis of suspicion, the appellant was chased and overpowered and on interrogation, a red bag containing Rs. 1.45 lacs and a cheque amounting to Rs. 6,000/- was recovered from him. Thus, he has argued that the presence of Rajan, PW7, is highly doubtful at the spot 15. It has further been contended that the link evidence is missing in the instant case as despite disclosure statement that remaining amount had been kept in the cottage situated in Rishikesh, no investigation was conducted on this point. 16. Learned counsel has further submitted that the recovery is not proved in the instant case because recovery memo has not been signed by the appellant. 17. It has also been submitted that the accused/appellant is not an unknown person. 16. Learned counsel has further submitted that the recovery is not proved in the instant case because recovery memo has not been signed by the appellant. 17. It has also been submitted that the accused/appellant is not an unknown person. He was employed as driver about 25 days prior to the occurrence and had accompanied the complainant to various destinations including Delhi 3-4 times. 18. It has further been submitted that there are material improvements in the statement of complainant. 19. Learned counsel has pointed out that it has specifically come in the statement of appellant recorded under Section 313 Cr. P.C. that it was wrong to suggest that no scuffle took place as alleged. The appellant has specifically stated in his statement under Section 313 Cr. P.C. that the complainant is a homosexual. While on the way, the complainant asked him to stop the car under the pretext or urinating near road side bushes. The complainant went to bushes on the pretext of urinating and asked him to come with a bottle of water. On reaching to the bushes, the complainant tried to overpower him to satisfy his sexual lust to which, he resisted and gave him slap and fist blows and after that the complainant fled away from the spot. The appellant further stated that he kept mum but the complainant has falsely registered the instant case against him. Money and rod were planted upon him to strengthen this false version. 20. On the other hand, learned counsel for the State has submitted that the appellant had tried to take life of his employer/complainant. He did not commit this offence due to sudden or grave provocation. The case of the prosecution is fully established beyond reasonable doubt. 21. I have heard the learned counsel for the parties and perused the record with their able assistance. 22. The occurrence in the instant case took place on 27.11.1999. As per the statement of Rajan, PW7, while he was on way to Police Station, Rai, he met SHO Sahab Singh. The accused/appellant was seen going towards G.T. Road from Meerut Side. On seeing the police party, the accused/appellant tried to escape from the spot. However, he was overpowered. A bag containing an amount of Rs. 1.45 lacs and a cheque amounting to Rs. 6,000/- was recovered from him. The accused/appellant was seen going towards G.T. Road from Meerut Side. On seeing the police party, the accused/appellant tried to escape from the spot. However, he was overpowered. A bag containing an amount of Rs. 1.45 lacs and a cheque amounting to Rs. 6,000/- was recovered from him. It is not understandable as to why the appellant will carry a bag on which name of the complainant is inscribed and the cheque worth Rs. 6,000/-which was drawn on J & K Bank, Panipat. The manner in which the presence of son of the complainant Rajan, PW5, has been shown in the instant case is highly improbable and appears to be a poor imitation of some Hindi movie. 23. HC Ram Prasad, PW3, in his cross-examination, admitted that he did not know whether SHO tried to join any independent witness at the spot or not. This witness further stated that the place of recovery of iron rod was an from an open place. The recovery memo was not signed in the instant case by the appellant, which also suggests that no recovery was effected from him. The appellant did not tell anything about the rod nor he signed in the presence of Rajan, PW7 as there was no disclosure statement. Therefore, recovery of rod in the instant case is not admissible in evidence. The recovery after a gap of 19 days from the open place in the absence of any independent witness is no recovery. 24. No injury was given with the alleged weapon recovered from the accused/appellant. No grievous injury was caused. Therefore, it appears that weapon of offence has been falsely introduced by the prosecution to prove its case 25. As per the case of the prosecution, the appellant made a statement that he had kept concealed the remaining amount at some cottage at Rishikesh. However, no investigation was conducted in this regard and the remaining amount remains to be unrecovered. Non-investigation to this crucial aspect of the case robes the prosecution version of its truthfulness. Therefore, the link evidence is missing in the instant case. 26. There are material and vital improvements in the statement of the complainant, PW3. He has admitted that he did not remember whether he told the police or not in his statement, Exhibit PG that the appellant stated that he was feeling hot and wanted to remove his shirt. Therefore, the link evidence is missing in the instant case. 26. There are material and vital improvements in the statement of the complainant, PW3. He has admitted that he did not remember whether he told the police or not in his statement, Exhibit PG that the appellant stated that he was feeling hot and wanted to remove his shirt. The complainant has further admitted that he did not tell the police that he was sitting by the side of the appellant and placed his legs on dashboard. Further, he has admitted that he was semi-conscious at that time. He himself asked the appellant to take away the money and not to kill him. It has also come in the statement of this witness that he did not know whether he told this fact to the police at that time or not. This version of complainant is diametrical opposite to the statement of Dr. Poornima Ahuja, PW1, who conducted medico-legal examination of the appellant and has stated that the injured was fully conscious at the time of his medical examination. The injuries on the person of the injured were possible if the vehicle gets stagnated at once by any impact. 27. From the record, it also emerges that the complainant was advised skull x-ray and surgeon opinion but no x-ray was done and no opinion of surgeon was sought. In the absence of any grievous injury particularly caused by the weapon allegedly recovered by the police gives credence to the version rendered by the appellant that the complainant wanted to satisfy his sexual lust but the appellant resisted and gave slap and fist blows, which are proved from medico-legal report. No dragging injuries were noticed at the time of medico-legal examination. 28. On reappraisal of the entire evidence that the recovery in the instant case is no recovery as the appellant did not make any disclosure statement, thus the question of recovery of the weapon of offence does not arise. It appears to be padding by the Investigating Officer with a view to prove the case of the prosecution. In the absence of explanation as to why the investigation was not conducted to recover remaining amount allegedly carried away by the accused/appellant and kept by him in Rishikesh suggests that no occurrence as projected by the prosecution took place. It appears to be padding by the Investigating Officer with a view to prove the case of the prosecution. In the absence of explanation as to why the investigation was not conducted to recover remaining amount allegedly carried away by the accused/appellant and kept by him in Rishikesh suggests that no occurrence as projected by the prosecution took place. The fact, whether the recovery of the entire amount was effected or not, has not come on record. 29. The complainant was an able-bodied person. There is no explanation as to why he did not give any resistance particularly when the appellant was not carrying any weapon. The appellant did not give any serious injury to the complainant. On the other hand, keeping in view the material improvements made in the statement of the complainant, alleged manner of arrest and the version rendered by the appellant appears to be probable and a truthful version. 30. In view of the above, the present appeal is allowed. The judgment and order dated 8/11.5.2001 passed by the learned trial Court is set aside, the appellant is acquitted of charge. He is stated to be on bail. His bail bonds shall stand discharged.