Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 474 (PNJ)

Dharam Pal v. State of Punjab

2012-03-20

M.JEYAPAUL, S.S.SARON

body2012
JUDGMENT Mr. M. Jeyapaul, J.: - The application has been filed under Section 378(4) Cr.P.C. Seeking grant of special leave to file the criminal appeal. 2. Accused Surinder Kumar @ Mintoo and Shashi Kumar @ Rinku-respondents No.2 and 3 who stood charged with the offences under Section 302, 148/49 IPC were acquitted by the learned Addl.Sessions Judge, Jalandhar. Dharam Pal being the brother of deceased Subhash Chander has preferred the present application. 3. The brief story of the case of the prosecution is that on 16.2.2010 at about 1.45 p.m. when the complainant Dharam Pal (PW5) alongwith his nephew Harsh Kumar (PW6) was proceeding to their house in an auto-rickshaw, Subhash Chander (since deceased) brother of complainant Dharam Pal (PW5) and father of said Harsh Kumar (PW6) was going ahead of them on his scooter. When they reached Dal Dal chowk, accused Surinder Kumar and Shashi Kumar having alighted from an Indica car rained blows on the head of Subhash Chander with datars and kirpan possessed by them. PW5 and PW6 stopped their auto-rickshaw and raised alarm. Many people collected over there. Subhash Chander was put into the auto-rickshaw and was taken to Civil Hospital, Jalandhar, but unfortunately Subhash Chander died on the way. Subhash Chander also possessed a sum of ‘20,000/- in cash, one purse, one mobile phone and one diary. All those articles possessed by him were missing. Subhash Chander picked up a quarrel with the accused on 12.2.2010 as his pet dog was crushed under the tyres of the speeding Indica car. Though the matter was compromised, the accused nursed a grudge as against him. Inspector Nirmal Singh (PW7) received telephonic message from MHC that one Subhash Chander was assaulted by some boys and thereafter he was removed to Civil Hospital. PW7 proceeded to the Civil Hospital, Jalandhar, recorded the statement of Dharam Pal who was available in the hospital and registered a case under Section 302 and 148/49 IPC. 4. PW1 Dr.Jasbir Singh, Medical Officer attached to the Medical Hospital, Jalandhar spoke about the post mortem examination conducted by Board of Doctors including himself. Nine incised wounds on various parts of the body and a lacerated wound on the left hand of deceased Subhash Chander were noted down by the Board of Doctors. 4. PW1 Dr.Jasbir Singh, Medical Officer attached to the Medical Hospital, Jalandhar spoke about the post mortem examination conducted by Board of Doctors including himself. Nine incised wounds on various parts of the body and a lacerated wound on the left hand of deceased Subhash Chander were noted down by the Board of Doctors. It has been opined by the Board of Doctors that head injury which led to haemorrhage and shock culminated in the death of Subhash Chander. 5. PW7 arrested the accused, recorded their statement and made recovery of the weapons at the instance of the accused and finally laid challan. 6. On the side of the prosecution 13 witnesses were examined. The accused came out with a statement under Section 313 Cr.P.C. that a false recovery of car and weapons has been made. After torturing them kirpans were planted and false recovery was shown in this case, they have further contended. 7. On the side of the defence, 4 witnesses were examined. DW4 Dr.Raj Kumar, Medical Officer attached to Civil Hospital, Jalandhar has spoken to the fact that on 16.2.2010 when he was on duty at Emergency Ward in Civil Hospital, Jalandhar a dead body of unknown male aged 45 years was brought from Basti Danishmandan, Dal Dal chowk at 2.20 p.m. by HC Vijay Kumar of PCR No.8 Jalandhar. He infact sent intimation to the SHO of Police Station vide letter Ex.D4/A. 8. Learned senior counsel appearing for the complainant would submit that the trial Court totally ignored the ocular testimony of PW5 Dharam Pal and PW6 Harsh Kumar. The medical evidence and the recovery of the material objects would also go to establish that it was only the accused who committed the murder of Subhash Chander. Therefore, it is his submission that special leave may be granted to prefer an appeal as against the judgement of acquittal recorded by the trial Court. 9. We thoroughly scanned the entire judgement pronounced by the trial Court. We do not find any ground to grant special leave to challenge the well-merited judgement of the trial Court. 10. The entire case of the prosecution rests on the alleged ocular witnesses, namely, PW5 Dharam Pal and PW6 Harsh Kumar. PW5 Dharam Pal was none other than the own brother and PW6 Harsh Kumar was the son of deceased Subhash Chander. 10. The entire case of the prosecution rests on the alleged ocular witnesses, namely, PW5 Dharam Pal and PW6 Harsh Kumar. PW5 Dharam Pal was none other than the own brother and PW6 Harsh Kumar was the son of deceased Subhash Chander. Just because these witnesses were closely related to the deceased, the Court cannot reject their testimony on that sole ground. The credibility of those witnesses will have to be weighed before ever their testimony is rejected. 11. The evidence of DW4 Dr.Raj Kumar, Medical Officer attached to Civil Hospital, Jalandhar has completely belied the version of PW5 and PW6. That apart his evidence has dealt a death knell to the prosecution. 12. DW4 Dr.Raj Kumar, Medical Officer, Civil Hospital, Jalandhar has categorically deposed that on 16.2.2010 the dead body of an unknown male aged about 45 years was brought to the emergency ward from Dal Dal chowk Basti Danishmandan at about 2.20 p.m. by HC Vijay Kumar No.1668. It appears that the investigating agency having totally suppressed the fact that unknown dead body was brought to the hospital by HC Vijay Kumar has chosen to project a case through PW5 Dharam Pal and PW6 Harsh Kumar who were blood relations to the deceased. 13. Had those witnesses been present at the scene of occurrence, they would have definitely accompanied the dead body. They would not have permitted loss of some personal belongings at the scene of crime. The dead body would not have been consigned to the mortuary as an unidentified male deceased person. PW6 Harsh Kumar infact participated in the inquest proceedings conducted by PW7. Never had he whispered about his role as ocular witness for the crime of murder committed in this case. 14. PW7 has deposed that he received a communication from HC Hardev Singh that a man was assaulted at Dal Dal chowk and was taken to Civil Hospital, Jalandhar. If the close relatives of the deceased had been present at the scene of crime, they would have left behind the information regarding the injured person at the scene of occurrence. 15. PW5 and PW6 have categorically deposed that Subhash Chander with profuse bleeding was taken into the auto-rickshaw and in the process their clothes also sustained blood stains. Neither the auto-rickshaw with blood stains nor the blood stained clothes of the witnesses were recovered by PW7. 15. PW5 and PW6 have categorically deposed that Subhash Chander with profuse bleeding was taken into the auto-rickshaw and in the process their clothes also sustained blood stains. Neither the auto-rickshaw with blood stains nor the blood stained clothes of the witnesses were recovered by PW7. The above facts and circumstances would unerringly go to show that PW5 and PW6 were not at all eye witnesses to the occurrence and they were planted by the investigating agency in order to strengthen the case. 16. The recovery of the weapons did not connect the accused with the crime. Therefore, the recovery of weapons also would not in any way help the prosecution. There was no explanation as to why HC Vijay Kumar who infact brought the dead body to DW4 Dr.Raj Kumar was not examined by the prosecution. An adverse inference will have to be drawn as against the prosecution for non-examination of such a vital witness who would definitely throw light on the origin of the case. 17. Coming to the motive attributed, it is found that the pet dog of the deceased was crushed to death. Of course, the matter was compromised. At any rate, the motive established by the prosecution may give rise to the suspicion of the role of the accused, but would not establish the case of the prosecution beyond reasonable doubt. 18. The trial Court has rightly rejected the testimony of the ocular witnesses and acquitted both the accused. We do not find any reason to grant special leave to prefer an appeal. Therefore, leave is declined and the application is consequently dismissed. Crl.M. No.50806 of 2011 & Crl.M. No.15566 of 2012 19. Crl.M. No.50806 of 2011 was filed praying to condone the delay of 36 days in preferring the application seeking special leave to prefer an appeal. Crl.M. No.15566 of 2012 was filed to implead Harsh Kumar as an applicant in the main application seeking special leave to appeal. 20. As we have taken up the main application seeking leave to appeal on merit and disposed of the same, the disposal of aforesaid two miscellaneous applications have become purely academic and therefore they are dismissed as infructuous. ---------0.B.S.0------------