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2013 DIGILAW 1471 (PNJ)

Pranab Vishvash v. State Of Punjab

2013-11-08

ANITA CHAUDHRY, M.JEYAPAUL

body2013
JUDGMENT Mr. M. Jeyapaul, J.:- The sole accused Pranab Vishvash who was convicted under Section 302 IPC and was sentenced to undergo R.I. for life and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo further period of 6 months has come forward with the present appeal. 2. Smt. Nandita Vishvash wife of the deceased has preferred the present revision praying for enhancement of the sentence and fine amount imposed by the trial Court. 3. PW5 Arvinder Singh lodged the first information report which reads as follows. 4. PW5 Arvinder Singh was residing in the chobara of his house with his family members. In the ground floor PW1 Harish Chander Pathak, PW2 Varinder Singh and deceased Dr.Dinesh Vishvash were residing as tenants alongwith their family members in separate premises. On 14.4.2006 at about 3.00 a.m. PW1 Harish Chander and PW2 Varinder Singh woke PW5 up and informed him that some shrieks were heard in the house of deceased Dinesh Vishvash. They found that the house of Dinesh Vishvash was locked from inside. When they knocked at the doors, a person from inside informed them that the Doctor had some stomache and that after taking medicine he had again gone to bed. He requested not to disturb the Doctor who had slept. PW1, PW2 and PW5 alerted the neighbours. In the meantime, an unidentified person ran away from the house of deceased Dinesh Vishvash. Inspite of a chase given by them, the unidentified person could not be caught hold of. When they entered into the house, they found that Dinesh Vishvash was murdered. 5. PW5 corroborated his version in the first information report. PW1 and PW2 had supported such a version of PW5 in their evidence before the trial Court. 6. PW7 Dr. I.C. Taneja conducted post mortem examination on the dead body of Dinesh Vishvash on 14.4.2006. He found the following injuries on the person of the deceased:- “1. An incised wound 20cm x 6cm on the mid line of neck at the level of Thyroid cartriledge of neck extending on both sides of neck with cutting of thyroid cartriledge of neck, both external and internal Jugalar vessels, both the carotid vessels, trachea, larynx as well as pharynix and oesophagous we cut, the margins of the wound was clean cut. 2. 2. An incised wound 2cm x 1cm on the palmer surface of right thumb at its middle phalanx with cutting of underlying bone. 3. Diffused swelling 20cm x 15cm present on the front of right hip joint with fracture of neck of femur was present.” In his opinion all the injuries were ante mortem and were sufficient to cause death in the ordinary course of nature. The death had occasioned due to haemorrhage and shock on account of the injuries he sustained. 7. The accused was arrested by PW13 ASI Amarvinder Singh on 11.5.2006. PW3 Parvesh Kumar, an ice seller was examined by the investigating official after the accused was arrested. PW3 identified the accused as the person who resided with the deceased. He also spoke to the effect that the accused demanded money from the Doctor for renting a shop. 8. PW4 Sher Singh who was also interrogated by the investigating official after the arrest of the accused deposed that a shop was taken from him on rent by the accused on 1.4.2006, but the same was vacated by him on 13.4.2006 itself. 9. As per the directions of this Court during the pendency of this appeal, PW14 to PW17 were examined by the trial Court. PW14 Shymal Vishvash, the brother-in-law of the deceased had spoken to the effect that the deceased interacted with him on telephone on 13.4.2006 at about 9.00 p.m. and informed him that accused had received Rs.10,000/- from him after leaving the shop in order to proceed to the State of West Bengal. Therefore, he had entertained a doubt that accused Parnav Vishvash might have committed the murder of Dinesh Kumar. PW15 Bidhan Bayne had deposed that the deceased informed him that he had paid a sum of Rs.10,000/- to the accused to open a shop. Dinesh Kumar also informed PW15 that he possessed a sum of Rs.15,000/-/ Rs.20,000/- and requested PW15 to take the amount to his wife. But, in the meantime, he received a telephone call from the deceased on 13.4.2006 at about 9.00 p.m. that accused had left the shop and proceeded to West Bengal having received a sum of Rs.10,000/- from him with an undertaking that he would hand over the same to his wife. But, in the meantime, he received a telephone call from the deceased on 13.4.2006 at about 9.00 p.m. that accused had left the shop and proceeded to West Bengal having received a sum of Rs.10,000/- from him with an undertaking that he would hand over the same to his wife. PW16 Nandita Vishvash, wife of the deceased had spoken to the effect that the deceased gave a sum of Rs.10,000/- to the accused for opening a medical shop. On 13.4.2006, her husband informed him that he was sending Rs.30,000/- through accused. But unfortunately, he received a telephonic communication on 14.4.2006 that her husband was murdered by accused. On 16.4.2006, the accused came to her house. When PW16 asked him about the amount of 30,000/- paid to him by her husband, he replied that he had been to Punjab and he had not received any amount from Dinesh Kumar. When PW16 asked him why he committed the murder of her husband, the accused got perplexed and went away. She also received a letter from an anonymous source for compromising the matter. PW17 Shankar Vishvash who is the brother of PW16 had deposed that he was running an STD booth in his village. He received telephonic call from the deceased Dinesh Kumar on 13.4.2006 informing him that he had sent Rs.30,000/- to his wife through the accused who was residing with him. 10. In the statement under Section 313 Cr.P.C., the accused had set up a plea that he was innocent, but a false case was implicated on him. 11. The trial Court having relied upon the evidence of PW1 to PW5, in the background of medical evidence available on record recorded conviction as against the accused. 12. Learned counsel appearing for the appellant would vehemently submit that no Test Identification Parade was conducted by the investigating official. PW3, PW4, PW16 and PW17 had been examined by the investigating official only after the accused was arrested on 11.5.2006. PW4 had not produced any rent deed. PW14 and PW15 had not dropped any clue as to the role of the accused in the murder of Dinesh Kumar in their statement recorded during inquest proceedings. The call details had not been seized and produced by the investigating official. The evidence adduced by the prosecution appears to be natural. Therefore, it is his submission that accused-appellant is entitled to acquittal. 13. The call details had not been seized and produced by the investigating official. The evidence adduced by the prosecution appears to be natural. Therefore, it is his submission that accused-appellant is entitled to acquittal. 13. Per contra, learned counsel appearing for the complainant as well as learned Addl.A.G, Punjab appearing for the State would vehemently submit that the evidence of PW14 to PW17 also lends corroboration to the case of the prosecution. The evidence on record would establish that the accused had stayed with the deceased who had helped him to take a shop on rent. The murder had been committed after entrustment of a sum of Rs.30,000/- to the deceased for the purpose of handing over the same to PW16. The motive part of the case also had been established. The witnesses had identified the accused in the Court. Therefore, it is submitted that the prosecution had established the murder committed by the accused. It is further submitted by learned counsel appearing for the wife of the deceased that the sentence and fine imposed by the trial Court did not match with the shocking murder committed by the accused. 14. In the first information report, it had been indicated by PW5 that only unidentified person ran away from the scene of occurrence after committing the murder. But unfortunately PW5 Arvinder Singh, the landlord of the portion occupied by the deceased had come out with a version before the Court during the course of trial that it was only the accused who ran away from the scene of occurrence. PW5 being the landlord would have definitely noted the presence of the accused in the house of the deceased if at all the accused had stayed with the deceased in the house of PW5 rented out to him. No Test Identification Parade was conducted associating PW1, PW2 and PW5 to identify the accused. It is their testimony that they were called by the investigating official after the arrest of the accused and they identified him in the police station. Such an identification by PW1, PW2 and PW5 does not have any evidentiary value. 15. The Hon’ble Supreme Court in Kanan & Ors. It is their testimony that they were called by the investigating official after the arrest of the accused and they identified him in the police station. Such an identification by PW1, PW2 and PW5 does not have any evidentiary value. 15. The Hon’ble Supreme Court in Kanan & Ors. vs. State of Kerala, AIR 1979 SCC 1127 has held as follows:- “It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. Parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely overruled his bare testimony regarding the identification of an accused for the first time in Court.” 16. The above decision was quoted with approval by the Hon’ble Supreme Court in Ramesh Vs. State of Karnataka, 2010(5) RCR (Criminal) 416. 17. It is true that there is no inflexible rule that an identification made for the first time in the Court has to be always thrown out of consideration. The broad principle is that if there is no other acceptable evidence against the accused, it would be totally unsafe to rely upon the identification of the accused by the witnesses for the first time in the Court long after the occurrence. In the instant case, we find that there is no other acceptable evidence except the evidence of PW1, PW2 and PW5 who were infact not associated for the purpose of identifying the accused in the Test Identification Parade. Therefore, the failure on the part of the investigating agency in not conducting the Test Identification Parade creates a doubt as to the genuineness of the identification done by PW1, PW2 and PW5 for the first time in the Court. 18. PW3 Parvesh Kumar, an ice seller would depose that the deceased infact sought his advice as to whether he could part with the money demanded by the accused for setting up a clinic. Surprisingly, PW3 Parvesh Kumar was examined by the investigating official only after arrest of the accused. 18. PW3 Parvesh Kumar, an ice seller would depose that the deceased infact sought his advice as to whether he could part with the money demanded by the accused for setting up a clinic. Surprisingly, PW3 Parvesh Kumar was examined by the investigating official only after arrest of the accused. At any rate, his testimony that the accused used to reside in the house of the deceased was not supported by PW5 Arvinder Singh, the landlord of the deceased. Therefore, it would be totally unsafe to rely upon the evidence of PW3. PW4 Sher Singh had allegedly rented out his shop to the accused for 12 days. The shop was taken on rent on 1.4.2006 and it was vacated on 13.4.2006. The rent deed alleged to have been executed by the accused was not produced by him. Further it was found that he was interrogated by the police only after the arrest of the accused. Therefore, his testimony also does not inspire confidence. 19. PW14 Shymal Vishvash and PW15 Bidhan Bayne, the close relatives of the deceased had come out with a version that about few hours prior to the occurrence the deceased contacted them and informed them that the deceased had entrusted a sum of Rs.10,000/- for handing over to his wife who was examined as PW16. But PW16 Nandita Vishvash and PW17 Shankar Vishvash, the brother of PW16 would depose that the deceased informed them that he had entrusted a sum of Rs.30,000/- to the accused with a direction to hand it over to PW16. Such a contradiction as regards the quantum of amount entrusted to the accused by the deceased was not at all reconciled by the witnesses examined on the side of the prosecution. 20. PW14 to PW17 would depose that they received a telephonic call from the deceased about few hours prior to his death. The call details of the telephonic conversation emanated from the deceased to those witnesses would have supported the case of the prosecution to some extent. But the investigating agency had not chosen to seize even the call details from the STD booth run by PW17. Further, we find that PW14 had admittedly met the accused in jail not once but thrice. He had deposed that he met the accused in jail only to ascertain the cause of murder committed by him. But the investigating agency had not chosen to seize even the call details from the STD booth run by PW17. Further, we find that PW14 had admittedly met the accused in jail not once but thrice. He had deposed that he met the accused in jail only to ascertain the cause of murder committed by him. Such a version of PW14 belies his first version before the investigating official that on account of the money transaction the accused had with the deceased, he suspected the role of the accused in the murder of the deceased. 21. We also find that PW16 Nandita Vishvash had come out with an unbelievable story that the accused appeared before her on 16.4.2006. When she asked for the money entrusted to him by her husband, he replied in the negative. She also confronted him with the murder committed by him. The accused became perplexed and went away without giving any reply. The accused was arrested on 11.6.2006. The accused would not have got the guts to meet the wife of Dinesh Vishvash if at all he had committed the murder of Dinesh Vishvash. PW16 also would not have allowed the accused to go scot-free on 16.4.2006. She would have definitely alerted the police people and seen that the accused was arrested in a short while. The conduct of PW16 creates a doubt in her version. It would be totally unsafe to rely upon the evidence of PW17 who was running an STD booth in the absence of call details maintained by him. 22. PW16 would depose that an anonymous letter pleading for compromise marked as PW16/A was received by her. None had affixed any signature in the said anonymous letter. Therefore, in our view, the trial Court had not rightly exhibited the said document. Therefore, Mark PW16/A had lost its evidentiary value. 23. PW14 and PW15 had infact participated in the inquest proceedings held by the investigating official. They had not dropped any clue as to the suspicion in their mind as regards the role of the accused in the murder of Dinesh Kumar. Therefore, their evidence throwing suspicion on the accused does not appear to be credible. 24. In our considered view, none of the circumstances was established by the prosecution. The accused, therefore, is found not guilty of the charge of murder. He is acquitted of the charge under Section 302 IPC. Therefore, their evidence throwing suspicion on the accused does not appear to be credible. 24. In our considered view, none of the circumstances was established by the prosecution. The accused, therefore, is found not guilty of the charge of murder. He is acquitted of the charge under Section 302 IPC. He be set at liberty forthwith, if his custody is not required in connection with any other case. Consequently, the judgement of conviction and sentence passed by the trial Court is reversed and the appeal is allowed and the criminal revision stands dismissed.