Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1318 (PNJ)

Madan v. State of Haryana

2013-09-27

MEHINDER SINGH SULLAR

body2013
Judgment MEHINDER SINGH SULLAR, J.(oral) The epitome of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, as claimed by the prosecution, is that on 29.05.2001 at about 5.00AM, Suresh(deceased), brother of complainant Rattan Kumar (PW1) son of Balwan Singh had gone with appellant-convict Madan son of Desh Raj and acquitted co-accused Rohtas son of Chote Lal, on his(appellant's) tractor-trolley bearing Registration No.HR12A0526, for selling Millet(fodder)(Jawar) at Rohtak. At about 1.30 PM, they brought Suresh in an injured and unconscious condition to his house. The liquor smell was coming out of their mouths. The complainant asked them to remove his brother Suresh to the hospital, but they went away. Thereafter, the complainant along with his brother Baljeet brought Suresh to the Civil Hospital, Dighal, from where he was referred to PGI Rohtak. As luck would have been, he expired on the way and his deadbody was brought to the village. The matter was reported to the police. After postmortem examination of his deadbody, the complainant developed suspicion regarding the cause of death of his brother. Subsequently, he came to know that in fact a quarrel had taken place between Suresh and the accused, at a place near Irrigation Minor, falling within the area of Dighal. Appellant-Madan and his other co-accused Rohtas were stated to have caused injuries to him. 2. Levelling a variety of allegations and narrating the sequence of events in detail, in all, the complainant claimed that on 29.05.2001, his brother Suresh had died on account of injuries, caused by the appellant and his other co-accused, culminating into his death. In the background of these allegations and in the wake of complaint (Ex.PA) of complainant-Rattan Kumar, the present case was registered against the appellant and his other co-accused, vide FIR No.113 dated 31.05.2001, on accusation of having committed the offences punishable under Section 304 read with Section 34 IPC, by the police of Police Station Beri, District Jhajjar, in the manner described hereinabove. 3. After completion of the investigation, final police report (challan) was submitted by the police against them to face the trial for the pointed offences. 4. Having completed all the codal formalities, the appellant and his other co-accused were chargesheeted for the commission of offences, in question. 3. After completion of the investigation, final police report (challan) was submitted by the police against them to face the trial for the pointed offences. 4. Having completed all the codal formalities, the appellant and his other co-accused were chargesheeted for the commission of offences, in question. As, they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Court. 5. Sequelly, the prosecution in order to substantiate the commission of crime against the appellant, has mainly relied upon the statement of eyewitness PW5 Naresh Kumar, who has deposed in the following terms: “On 29.5.2001 at about 12.00 Noon, I was going to Rohtak on scooter and on the way near Dighal Canal, accused Rohtas and Madan were beating Suresh. Madan was carrying lathi in his hand and Rohtas was carrying handle of hand pump in his hand and both were beating Suresh and caused injuries to Suresh. Tractor of Madan was also parked nearby. I intervened and rescued Suresh from the clutches of accused. Suresh received injuries on his head and Madan gave a lathi blow to Suresh on his hand. Rohtas caused injuries to Suresh with the help of iron handle of hand pump in his head. I separated them and advised them to take the injured to hospital and then I went to Rohtak on my scooter. On the same day, in evening, I received telephonic message that Suresh has died. On 31.5.2001, police recorded my statement.” 6. Likewise, complainant PW1 Rattan Kumar has also supported the prosecution version. Instead of reproducing his entire statement and in order to avoid the repetition, suffice it to say that he has corroborated the contents, contained in his initial statement(Ex.PA), which formed the basis of FIR(Ex.PC). 7. Now adverting to the medical evidence, PW4 Dr.Kumud Sharma has conducted the postmortem examination of the deadbody of the deceased by way of PMR(Ex.PD) and found the following injuries on his person: “1. Incised wound 2x1cm on the lateral side of right eye into bone deep. Clotted blood present on wound. 2. Contusion 7x5cm on the right occipital region of skull on cut section subarrachmoid and extradural haemorrhage intercerebal and intracerebal haemorrhage present in brain. Clotted blood present in the brain. 3. Multiple abrasion present on ventral surface of left elbow. 4. Multiple abrasion on the dorsal surface of right elbow. 5. Clotted blood present on wound. 2. Contusion 7x5cm on the right occipital region of skull on cut section subarrachmoid and extradural haemorrhage intercerebal and intracerebal haemorrhage present in brain. Clotted blood present in the brain. 3. Multiple abrasion present on ventral surface of left elbow. 4. Multiple abrasion on the dorsal surface of right elbow. 5. Contusion 3x3cm on the left shoulder joint. 6. Ninth rib fractured on left side of chest. Contusion 6x6cm on the back of chest.” 8. According to PW4, the cause of death was due to shock and haemorrhage, as a result of head and lung injury. In cross-examination, he has admitted that the possibility of such injuries, having been caused in an accident or by fall between tractor-trolley, cannot be ruled out. PW6 Baljeet, brother of the complainant and the deceased did not support the prosecution version and he was declared hostile. 9. Now coming to the evidence of the police officials, PW2 C.Rajbir Singh has stated that on 01.06.2001, one Pawan son of Des Ram has produced his tractor bearing Registration No.HR12A0526 in the police station along with its Registration Certificate. ASI Umed Singh took into possession the tractor and its R.C. by means of recovery memo (Ex.PB), which was attested by him. 10. Similarly, PW3ASI Hari Singh has recorded the formal FIR (Ex.PC) on receipt of ruqa(Ex.PA) on 31.05.2001. PW7C.Baljeet Singh has delivered the special report to the higher authorities on 31.05.2001. PW8C.Dharambir has stated that on 01.06.2001, the police took into possession one dhoti, one shirt, one baniyan and one piece of cloth, vide recovery memo (Ex.PJ). The clothes of Madan were also taken into possession by way of recovery memo (Ex.PK) attested by him. PW10C.Santosh Kumar joined ASI Umed Singh and interrogated appellantMadan and accused Rohtas, who made their disclosure statements (Exs.PN and PM) and got recovered the clothes of the deceased in pursuance thereof, which were taken into possession by way of recovery memo(Ex.PJ) and the clothes of Madan were recovered vide recovery memo(Ex.PK). PW11C.Subhash Chander handed over and deposited the parcel of viscera in Forensic Science Laboratory, Madhuban, on 18.06.2001. PW9Shiv Kumar, Patwari, prepared the scaled site plan (Ex.PL) of the place of occurrence on 29.06.2001, at the instance of the police officials with its correct marginal notes. 11. PW11C.Subhash Chander handed over and deposited the parcel of viscera in Forensic Science Laboratory, Madhuban, on 18.06.2001. PW9Shiv Kumar, Patwari, prepared the scaled site plan (Ex.PL) of the place of occurrence on 29.06.2001, at the instance of the police officials with its correct marginal notes. 11. The last to note is the testimony of PW12ASI Umed Singh, main investigating officer, who has, inter alia, maintained that on 31.05.2001, complainant-Rattan Kumar, brother of the deceased, moved an application(Ex.PA), he made his endorsement(Ex.PA/1) and sent it to the police station for registration of the case, on the basis of which, formal FIR(Ex.PC) was recorded. Then he along with other police officials went to the house of the deceased. He prepared the site plan (Ex.PO) of the spot. He verified the facts and recorded the statements of the witnesses. He arrested the accused from their respective houses. During the course of investigation, they suffered their disclosure statements(Ex.PM of Rohtas) & (Ex.PN of Madan) and in pursuance thereof, the clothes were taken into possession by means of recovery memos(Exs.PJ and PK). He prepared the site plans(Exs.PJ/1 and PK/1) of the place of recovery. He has testified his further investigation as well. This is the total evidence brought on record by the prosecution. 12. After the close of the prosecution evidence, the statements of the appellant and his other co-accused were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under Section 313 Cr.PC. Appellant-Madan has denied the prosecution evidence in its entirety and pleaded false implication in the following manner: “On that day, I and Madan(sic.) Rohtas along with Suresh deceased had gone to Rohtak to sell fodder and we took the fodder in our Tractor and after selling the fodder, we consumed two bottles of liquor. The deceased became excessively inebriated. While coming back to our village, deceased Suresh became unmanageable and fell down in between tractor and trolley and got injured. We took Suresh to his house and narrated the incident to his family members. Case is false and has been cooked up to extort money from us. I am innocent and I want to lead defence evidence.” 13. While coming back to our village, deceased Suresh became unmanageable and fell down in between tractor and trolley and got injured. We took Suresh to his house and narrated the incident to his family members. Case is false and has been cooked up to extort money from us. I am innocent and I want to lead defence evidence.” 13. Taking into consideration and disbelieving the entire evidence brought on record by the prosecution, appellant-Madan and his other co-accused Rohtas were acquitted of the charges framed against them under Section 304 read with Section 34 IPC. The State of Haryana did not file any appeal against their acquittal. However, appellant-Madan was convicted and sentenced to undergo rigorous imprisonment for a period of one year, to pay a fine of Rs.1,000/and in default thereof, to further undergo imprisonment for a period of three months, for the commission of an offence punishable under Section 304A IPC, by virtue of impugned judgment of conviction dated 07.06.2003 and order of sentence dated 09.06.2003 by the trial Court. 14. Aggrieved thereby, the appellant has filed the instant appeal. That is how, I am seized of the matter. 15. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the present appeal deserves to be accepted in this context. 16. As indicated earlier, taking into consideration and completely ignoring & disbelieving the entire evidence brought on record by the prosecution, appellant-Madan and his other coaccused Rohtas were acquitted of the charges framed against them under Section 304 read with Section 34 IPC. At the same time, appellant-Madan was convicted and sentenced only for the commission of an offence punishable under Section 304A IPC by the trial Court, which postulates that “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished therewith.” 17. A meaningful reading of this provision would reveal that in order to impose criminal liability on the accused, it must be found as a fact by cogent evidence that the appellant was driving the tractor rashly, or he was otherwise negligent in causing the death of the deceased. A meaningful reading of this provision would reveal that in order to impose criminal liability on the accused, it must be found as a fact by cogent evidence that the appellant was driving the tractor rashly, or he was otherwise negligent in causing the death of the deceased. In plain words, there should be acceptable evidence that the incident had occurred entirely or mainly due to rashness or negligence of the appellant and not otherwise. Indeed, it cannot possibly be denied that Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so imminent, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. The criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury to an individual, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. 18. Above being the legal position & evidence on record, now the core controversy, which invites an immediate attention of this Court and arises for determination in this appeal is, as to whether all the indicated essential ingredients of pointed crime are complete, or that the appellant can be convicted under Section 304A IPC or not ? 19. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has miserably failed to prove its case in this respect. 20. 19. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has miserably failed to prove its case in this respect. 20. What cannot possibly be disputed here is that, the main grounds which appear to have been weighed with the trial Court, to convict the appellant-Madan under Section 304A IPC were that; (i) the deceased had gone on the tractor of appellant-Madan along with Rohtas, for selling the Millet(fodder)(Jawar), (ii) they took liquor and the deceased was brought by the appellant to the village in an unconscious condition, (iii) the defence projected by the appellant is that Suresh (deceased) had taken excess liquor & could not control and himself felled in between tractor-trolley, as a result of which, he received the injuries and (iv) in these circumstances, neither appellant-Madan should have driven nor he should have allowed the deceased to sit in the tractor. Thus, the appellant was negligent in this relevant context. 21. Here, to my mind, the trial Judge has slipped into a deep legal error in this regard. No implicit reliance can possibly be placed on the indicated circumstances, to convict the appellant, as has been so done in the present case. The case of the prosecution from the very beginning, as projected by PW5, was that the appellant and his other co-accused, caused injuries culminating into the death of Suresh. It is nobody's case that the deceased died due to rash and negligent driving of the appellant. In this manner, the trial Judge has altogether made out entirely a new story, which is nobody's case. To that extent, the trial Court appears to have gone legally wrong in this respect. Moreover, the trial Court has already disbelieved the same very evidence of the prosecution, including the evidence of PW5, while acquitting the appellant under Section 304 read with Section 34 IPC. 22. Possibly, no one can dispute or lose sight of the law that the cardinal fundamental principles and basic rules of criminal jurisprudence, have to be kept into focus while deciding such criminal cases. Such as, the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. 22. Possibly, no one can dispute or lose sight of the law that the cardinal fundamental principles and basic rules of criminal jurisprudence, have to be kept into focus while deciding such criminal cases. Such as, the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any substantive evidence as the evidence is an essential element in the criminal proceedings, which required strict proof of guilt. It is legally admissible substantive evidence, on the basis of which, the decision of a criminal court is based and is the legal requirement of criminal justice. In its absence, the Courts have no option, but to record an order of acquittal howsoever painful the same may be. 23. As is evident from the record that, there is not an iota of acceptable evidence on record, much less cogent, even to suggest remotely that the appellant was driving the tractor rashly, or was otherwise negligent, in any manner, to cause the death of the deceased. Strange enough, the trial Judge has convicted the appellant entirely on unfounded and altogether speculative grounds, which to my mind, is not legally permissible. Moreover, the appellant cannot also legally be convicted on his plea of defence, as contained in his statement under Section 313 Cr.P.C. in this relevant connection. 24. Therefore, the listed circumstances were not at all sufficient and on the contrary, fall short, as is required to prove a criminal charge under Section 304A IPC as well, which entails the benefit of doubt and acquittal to the appellant. Hence, the impugned judgment of conviction and order of sentence cannot legally be maintained in the obtaining circumstances of the case. 25. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 26. In the light of aforesaid reasons, the instant appeal is accepted and the impugned judgment of conviction & order of sentence are hereby set aside. Consequently, having extended the benefit of doubt, appellant-Madan is acquitted of the crime prescribed and punishable under Section 304A IPC as well. Needless to mention that the necessary compliance and procedural consequences would naturally follow.