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2014 DIGILAW 1462 (PNJ)

Raj @ Jogi v. State of Punjab

2014-10-29

JITENDRA CHAUHAN

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JUDGMENT : Jitendra Chauhan, J. This judgment shall dispose of three connected criminal appeals i.e. CRA No. S-2608-SB of 2009, CRA No. S-2584-SB of 2009 and CRA No. S-2653-SB of 2009 filed by the appellant(s). 2. Brief facts of the case as set-out in Para 2 of the judgment passed by learned Additional Sessions Judge, Jalandhar are as under: "The prosecution story, in brief is that on 04.12.2005 HC Bhajan Singh made statement to the police to the effect that he is working as a Naib Court at Police Station Lohian. On 04.12.2005 he carried special reports for delivering it to the Ilaqa Magistrate Nakodar and other officers and after handing over special reports he had been returning to the Police Station Lohian by riding his motorcycle make Hero Honda Passion. At about 9.15 p.m. due to road leading from Malsian to Lohian being in a damaged condition he was going to Lohian via village Maridwal and when he reached a little ahead of Dabri Colony Malsian, one motorcycle make TVS bearing No. PB-08D-Temp.9996 crossed him, upon which three MONA youngsters had been riding. They threatened him to stop the vehicle by telling that otherwise he would be done to death. One of them was carrying a KHOKHRI while the other person was carrying a DATAR. After forcibly stopping his motorcycle, all the three accused confronted him. In the meantime, they were joined by two more youngsters carrying DANDA and he recognized all of them in the head light of his motorcycle because at that time his motorcycle was in a start position. He also recognized that the motorcycle was being driven by accused Harpreet Singh and on the pillion of his motorcycle Abhijit Kumar carrying a KHOKHRI and Raj carrying a DATAR had been sitting. While their co-accused Gurdev Singh and Bajrangi were carrying DANDAS. He knew all of them before hand. When he asked the reason from the assailants as to why he had been stopped, they started thrashing him with their weapons and they forcibly took away his wallet from his pocket. They also took out his mobile phone make Nokia 3310, in which Sim No. 98156-66265 had been put. They also forcibly snatched his wrist watch. His wallet contained his identity card, learning driving license and other important papers, including currency notes of Rs.150/-. They also took out his mobile phone make Nokia 3310, in which Sim No. 98156-66265 had been put. They also forcibly snatched his wrist watch. His wallet contained his identity card, learning driving license and other important papers, including currency notes of Rs.150/-. Abhijit Kumar and Raj @ Yogi also forcibly snatched his motorcycle from him and when towards Malsian. The remaining three accused also went away upon their motorcycle after issuing threats of elimination to him. On the above said statement of HC Bhajan Singh, FIR under Section 395 IPC was recorded. All the accused were arrest. Weapons of offence as well as motorcycle were recovered. One of the accused Ashok Kumar @ Bajrangi could not be arrested and, rather he was declared a proclaimed offender by the Ilaqa Magistrate on 27.1.2006. After completion of investigation challan against the remaining accused was present in the Court of Ilaqa Magistrate for commitment proceedings." 3. After completion of investigation, the challan against the accused appellant( s) was presented before the Ilaqa Magistrate and vide order dated 22.08.2006, charges were framed against all the three accused, to which they pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined HC Nirmal Singh as PW1, complainant Bhajan Singh as PW-2, ASI Joginder Singh as PW3, Inspector Piara Singh as PW4, DTO Clerk Kulwant Kaur as PW5, ASI Avtar Singh as PW6, while the remaining evidence of the prosecution was closed vide order dated 9.9.2008. 5. After closure of the prosecution evidence, all the accused were examined under Section 313 Cr.P.C., in which the incriminating evidence appearing in the statements of various prosecution witnesses was put to them so as to elicit their reply, but, they denied all the allegations and pleaded their false implication. They further submitted that they want to enter into defence. 6. In their defence evidence accused Harpreet Singh alias Happy brought Sh. Narinder Singh Member Panchayat of his village Malsian to examine him as DW-1, who affirmed on oath that on 13.12.2005 in the evening the police visited his village and took accused Harpreet Singh alias Happy with them. They further submitted that they want to enter into defence. 6. In their defence evidence accused Harpreet Singh alias Happy brought Sh. Narinder Singh Member Panchayat of his village Malsian to examine him as DW-1, who affirmed on oath that on 13.12.2005 in the evening the police visited his village and took accused Harpreet Singh alias Happy with them. A large number of villagers gathered at that time, to whom the police informed that they are taking the accused to the Police Station in connection with some inquiry, but on the next day he came to know that he had been falsely implicated in this case. No recovery had taken place from him in his presence. 7. Accused Abhijit Kumar, after seeking permission from trial Court himself stepped into the witness box to state on oath that in the year 2004, he was Member Panchayat of village Pharwala. He belongs to BSP. There was a party faction in his village. He entered into a tussle with Sh. G.S. Atwal, MLA, who belongs to the Congress Party. The above said MLA got him implicated in five false cases. After sending him to jail, he was harassed at the instance of above said MLA, as, he was made to shuttle between Patiala and Amritsar Jails. He was also kept with a Pakistani mental prisoner, due to which on one occasion, he had to run away from custody while being taken to Phillaur. On 12.1.2005, he was re-arrested from Bus Stand, Nakodar. In order to know his whereabouts during the time he was absconding, the police gave him severe beatings. At the instance of above said MLA he was involved in big cases, though he had not committed any crime. He does not know his co-accused. Out of the five false cases registered against him, he has since been acquitted in four cases. He never knew complainant Bhajan Singh. 8. Accused Raj @ Yogi and Gurdev alias Soni brought Member Panchayat Baldev Singh to examine him as DW-3, who affirmed on oath that in the evening of 4.12.2005 police of P.S. Shahkot took Raj @ Yogi and his brother Gurdev alias Soni to the police station in connection with some inquiry. When he and other respectable of the village visited P.S. Shahkot, he saw both of them locked behind the bars. When he and other respectable of the village visited P.S. Shahkot, he saw both of them locked behind the bars. On 5.12.2005 when they again visited the police station they came to know that both brothers have been falsely implicated, but both of them are innocent. 9. Accused Abhijit Kumar tendered documents and closed his evidence in defence, while the remaining accused suffered a joint voluntary statement and also closed their evidence in defence. 10. The trial Court convicted and sentenced the accused-appellants as under :- Under Section 392 of IPC read with Section 397 IPC To undergo rigorous imprisonment for 7 years each along with fine of L 1000/- each. In default of making payment of fine, each of the accused shall undergo further rigorous imprisonment for one year each. 11. Feeling aggrieved against the order dated 07.10.2009, passed by learned Additional Sessions Judge, Jalandhar, the accused-appellants filed three different appeals i.e. CRA No. S-2608-SB of 2009, CRA No. S-2584- SB of 2009 and CRA No. S-2653-SB of 2009, which was admitted on 06.11.2009, 30.10.2009 and 11.11.2009, respectively. 12. Learned counsel for the appellant(s) contends that there is no medical evidence on record to substantiate the version of the prosecution that the complainant was thrashed by the accused-appellants. No independent witness was examined to prove the incident and the other witnesses examined by the prosecution were earlier known to the accused. Learned counsel for the appellant(s) further contend that there is no other case pending against the accused-appellants, namely, Raj and Happy @ Harpreet, although there are many cases registered against the accused-appellant, namely, Abhijit, however, he is a worker of a political party. These cases were planted upon him out of political vendetta. Learned counsel for the appellant(s) also contend that there is no proof with regard to the ownership of the mobile phone as well as the motorcycle allegedly used in the crime. Learned counsel refers to the statement of Baldev Singh, Member Panchyat who was examined as DW-3 and contends that in the evening of 04.12.2005, the appellants were taken away by the police in connection with some enquiry. DW-3 along with other some other respectable of the village visited the police station Shahkot and saw them locked behind the bars. On 05.12.2005, when they again visited the police station they came to know that the appellants had been falsely implicated. DW-3 along with other some other respectable of the village visited the police station Shahkot and saw them locked behind the bars. On 05.12.2005, when they again visited the police station they came to know that the appellants had been falsely implicated. He further refers to the statements of PW-3, ASI Joginder Singh and PW-4, Inspector Piara Singh and states that there is a material contradiction in their statements with regard to the time of arrest of the accused. 13. On the other hand, learned State Counsel contends that there is no motive with the police to falsely implicate the appellants, the ownership of the articles recovered has been proved from the fact that the same were taken on superdari by the complainant himself and that none of the accused has claimed its ownership. 14. I have heard the learned counsel for the parties and have gone through the case file carefully. 15. In the case in hand no identification parade of the accused was held. As such, neither the identification of the accused is proved, nor it is proved on the record that the property looted belonged to the complainant. The prosecution version is that the complainant already knew the accused, and he could recognize the accused on the spot with the help of his motorcycle, which was in a running position. As per the prosecution version itself, the alleged occurrence took place on a link road at about 9.15 p.m. and there were no lights on the road. First of all, there is no evidence that the light of the alleged motorcycle was in working condition on the day of occurrence. There is no report to support that the light of the motorcycle was on. Moreover, as per the version of the prosecution, there were five accused and he could identify all of them with the help of the light of his motorcycle, which itself falsifies the story of the prosecution, as it is quite impossible to recognize all the five accused, with the help of the light of motorcycle, when he himself states that he was stopped by the accused. Moreover, it is matter of understanding that all the accused cannot come in front of the motorcycle and provide a space to the complainant to run away. As such, the prosecution version is highly doubtful. Moreover, it is matter of understanding that all the accused cannot come in front of the motorcycle and provide a space to the complainant to run away. As such, the prosecution version is highly doubtful. Apart from it, the complainant states that he was known to the accused as he had already seen them in other cases in which they were involved and in which they were either brought to the court or the police station. However, in order to prove all these facts no evidence has been brought on the record and the learned court below has rests its findings upon the evidence led by one of the accused i.e. appellant in defence. There is not even an iota of evidence on the record to prove the fact that the other accused were ever involved in any other case. Moreover, there is no proof that the looted property belongs to the complainant. It is well settled that mere recovery of some goods without the proof of its ownership is not sufficient to connect the appellant with the offence. As such the identity of the accused as well as the property looted, is not proved on the record. 16. As per the prosecution version the alleged occurrence took place on 4.12.2005. The appellant- Happy @ Harpreet Singh was interrogated on 8.12.2005. His disclosure statement was recorded, in which he disclosed that he had concealed mobile phone of the accused wrapped in polythene envelope alongside the wall of Kartar Cold Store at Kangra Road, Malsian. His statement was recorded and then the recovery was affected and PW-1 was the witness to the said recovery. Said Nirmal Singh was examined in court as PW-1. He stated in the examination-in-chief that the appellant was interrogated in his presence, but quite strangely, he has refused to identify the appellant in court. Moreover,neither the said witness knows the number of that mobile phone nor the ownership thereof. Khokhri can be planted very easily and moreover, there is no evidence that the alleged Khokhri belongs to the appellant. There is no proof of the use of said Khokhri by the appellant. Moreover,neither the said witness knows the number of that mobile phone nor the ownership thereof. Khokhri can be planted very easily and moreover, there is no evidence that the alleged Khokhri belongs to the appellant. There is no proof of the use of said Khokhri by the appellant. Simply because the counsel for the defence has failed to put the suggestion that the alleged recovery is result of coercion or threat, is not sufficient to prove the alleged recovery, particularly, when it is evident that even the case has been argued by the appellant himself and this fact is sufficient to take the view that the appellant and the accused being poor person could not defend their case in a better way. As such, the prosecution cannot take advantage from the weaknesses of the defence counsel. Apart from that, there is no independent witness to any of the recovery. All the witnesses are interested witnesses, as they all are policemen and so is the complainant. 17. The medico legal examination has not been proved nor the complainant in his statement before the court states that he was given beatings. The learned trail Court has agreed with the defence counsel to this effect. Surprisingly, the complainant was never admitted in the hospital. 18. The entire link evidence is missing connecting the appellant with the said alleged occurrence. There is no evidence even of the complainant as to whether he knew the appellant in any manner, though, he has said much against Abhijit Kumar, whereas, the said accused has submitted that he has no relation with the other co-accused. It may be relevant to mention here that the police had taken the appellant on 13.12.2005. The occurrence is of 04.12.2005 and no attempt was made for nine days to arrest the appellant. The complainant himself is constable in the police. There is no robbery or thrashing involved which is evident from the kind of alleged recoveries. 19. The disclosure statement attributed to the appellant with respect to recovery of motorcycle is totally false, which is evident from the sequence of events and the appellant has been framed in the present case. In fact, the learned trial Court itself found that a story has been coined by the complainant, but, believed the complainant only that if the occurrence was not genuine he could have coined equally convincing story. 20. In fact, the learned trial Court itself found that a story has been coined by the complainant, but, believed the complainant only that if the occurrence was not genuine he could have coined equally convincing story. 20. The learned trial Court failed to give due consideration to the fact that there are certain discrepancies in the statement of ASI Joginder Singh- PW3 and Inspector Piara Singh-PW4 by submitting that as per ASI Joginder Singh three of the accused were arrested by the police at 10.00 a.m. on 05.12.2005, while as per Inspector Piara Singh the accused were arrested only at 12.30 p.m. on 05.12.2005. Moreover, as per the statement of ASI Joginder Singh, Tubewell room of Malkiat Singh from where motorcycle was allegedly recovered was lying locked, whereas, as per Inspector Piara Singh, the room out of which the motorcyle was recovered was not locked. 21. In their defence evidence, accused-Harpreet Singh @ Happy brought Sh. Narinder Singh, Member Panchayat of his village Malsian to examine him as DW-1, who affirmed on oath that on 13.12.2005, in the evening the police visited his village and took accused-Harpreet Singh @ Happy with them. A large number of villagers gathered at that time, to whom the police informed that they are taking the accused to the police station in connection with some inquiry, but, on the next day, he came to know that he had been falsely implicated in this case. No recovery had taken place from him in his presence. 22. Accused-Abhijit Kumar, after seeking permission from the trial Court stepped into the witness-box to state that on oath that in the year 2004 he was Member Panchayat of Village Pharwala and belongs to a political party. There was a party faction in his village. He entered into a tussle with Sh. G.S. Atwal, MLA, who belongs to the Congress Party. The above-said MLA got him implicated in five false cases. After sending him to jail, he was harassed at the instance of above said MLA, as he was made to shuttle between Patiala and Amritsar Jails. He was also kept with a Pakistani mental prisoners, due to which once, he ran away from custody while being taken to Phillaur. On 12.01.2005, he was re-arrested from Bus-stand, Nakodar. In order to know his whereabouts during the time he was absconding, the police gave him severe beatings. He was also kept with a Pakistani mental prisoners, due to which once, he ran away from custody while being taken to Phillaur. On 12.01.2005, he was re-arrested from Bus-stand, Nakodar. In order to know his whereabouts during the time he was absconding, the police gave him severe beatings. At the instance of above said MLA, he was involved in big cases, though he had not committed any crime. He do not know his co-accused. Out of the five false cases registered against him, he has since been acquitted in four cases. He never knew complainant-Bhajan Singh. 23. Accused-Raj @ Yogi and Gurdev @ Soni brought Member Panchayat-Baldev Singh to examine him as DW-3, who affirmed on oath that in the evening of 04.12.2005, the police officials of Police Station Shahkot took Raj @ Yogi and his brother Gurdev @ Soni to the police station in connection with some inquiry. When he and other respectable of the village visited Police Station Shahkot, he saw both of them locked behind the bars. On 05.12.2005, when they again visited the police station they came to know that both brothers have been falsely implicated, but both of them are innocent. 24. Keeping in view the above, this Court is of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and thus, all the accused-appellants are given benefit of doubt. 25. Accordingly, the criminal appeals Nos. CRA No. S-2608-SB of 2009, CRA No. S-2584-SB of 2009 and CRA No. S-2653-SB of 2009, are allowed, judgment of conviction and sentence of the accused-appellants is hereby set-aside and all the accused-appellants are acquitted of the charges framed against them.