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2020 DIGILAW 968 (PNJ)

Harish v. State of Haryana

2020-03-12

ARCHANA PURI, RAJIV SHARMA

body2020
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 29.7.2009 and order dated 30.7.2009, rendered by learned Sessions Judge, Bhiwani, in Session Trial No. 213 of 17.10.2008. Appellant Harish was charged with and tried for the offence punishable under Sections 201 and 302 read with Section 34 IPC. He was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/- for the offence punishable under Section 302 IPC and in default of payment of fine to further undergo rigorous imprisonment for two years. He was also convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- for the offence punishable under Section 201 IPC and in default of payment of fine to further undergo rigorous imprisonment for six months. Both the substantive sentences were ordered to run concurrently. 2. The case of the prosecution, in a nutshell, is that 23.6.2008, Assistant Sub-Inspector Rajpal Singh was present near Dinod Gate, Bhiwani. PW Chitru son of Jot Ram made a statement, Ex.P1, before him. According to him, he was working as Khalasi with Railway Department. He was on duty from 5.00 P.M. to 1.00 A.M. He was standing in front of his house after the duty was over. In the meantime, two young boy came there from the side of railway station. One of them was having potli (bundle) over his head. The bundle was covered with blanket. When they were crossing him, the boy who was having potli over his head tried to cover his face with blanket. He asked them what they were carrying. Without giving any reply, they started moving quickly and went towards their quarters after crossing broken wall. Under the light of torch, he saw that boy carrying bundle. He was Harish son of Ramesh and Ramotar alias Kalia was with him. He was working at Pushkar Hotel and was known to him previously. When he proceeded towards them, they threw bundle in open place and ran away. He called Bishamber (sweeper). Information was given at Police Post, GRP. ASI Amarnath came to the spot. He opened the bundle and found a deadbody stuffed in a plastic bag. Thereafter, FIR was registered. Dead-body was sent for post-mortem examination. The post-mortem examination was conducted at PGIMS, Rohtak. He called Bishamber (sweeper). Information was given at Police Post, GRP. ASI Amarnath came to the spot. He opened the bundle and found a deadbody stuffed in a plastic bag. Thereafter, FIR was registered. Dead-body was sent for post-mortem examination. The post-mortem examination was conducted at PGIMS, Rohtak. Investigation was completed and challan was put up after completion of all the codal formalities. 3. The prosecution examined a number of witnesses in support of its case. The statement of the accused was also recorded under Section 313 Cr.P.C. He denied the case of the prosecution. As Co-accused Ramotar alias Kalia was absconding, thus, only appellant Harish was tried. He was convicted and sentenced, as noticed above. Hence, the present appeal. 4. Learned counsel appearing on behalf of the appellant vehemently argued that the prosecution has failed to prove its case. Learned counsel appearing for the State vehemently argued that the prosecution has proved its case beyond reasonable doubt and supported the judgment and order of the learned trial Court. 5. We have heard learned counsel for the parties and gone through the judgment and record very carefully. 6. PW1 Chitru deposed that he was working as Khalasi at Railway Station, Bhiwani. On 23.6.2008, after doing his duty, he was coming to his house at 1.00 (night). After taking meal, he was standing outside his house. There was no electricity at that time. Two persons were going on the road. One was having a gathri on his head. When he entered through the broken wall of railway colony, he tried to chase him. After throwing the gathri near railway quarters, he ran away and sat in the bushes. Thereafter, he woke up his companion Bishamber, who was sleeping nearby. He came there. He called Sub-Inspector of Railway Police. The police got opened the gathri, out of which a dead-body of 14-15 years of age boy was recovered. He remained sitting in the Police Post, GRP, Bhiwani. He was having a danda at that time. In the next morning, he went to the Police Post of GRP. One boy was sitting there, who was stating that he was falsely involved. But when DSP visited the spot, the boy admitted that he along with his co-accused committed the crime. The accused was taken by the police to the police post. In the next morning, he went to the Police Post of GRP. One boy was sitting there, who was stating that he was falsely involved. But when DSP visited the spot, the boy admitted that he along with his co-accused committed the crime. The accused was taken by the police to the police post. He could not identify the person at that time because he had covered his face with blanket. He was declared hostile and was cross-examined by the learned Public Prosecutor. He denied the contents of statement, Ex.P1. He did not state to the police that when the accused were entering through the broken wall of railway quarters, then he noticed them in the light of torch and that person, who was having gathri on his head, was accused Harish, present in the Court. He was confronted with portion A to A of statement, Ex.P1. He admitted that he knew both the accused previously. In his cross-examination by the learned defence counsel, he deposed that he did not know the names of the accused and names of their father. 7. PW2 Bishamber deposed that on 23.6.2008, two boys were carrying something on their heads. At that time, he was sleeping in front of his quarter. PW Chitru called him. He woke up. Chitru was chasing the boys. When he came running, the boy having the gathri on his head ran away after throwing the gathri. He tried to chase the said boy in order to catch him. Chitru prevented him not to do so. Thereafter, he apprehended the boy, who was present in the Court. But he did not know his name. He handed over the accused to PW Chitru. Thereafter, he called SI Amar Nath. The dead-body was taken from the spot. He was declared hostile and was cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that the accused was not known to him. He admitted that there was no electricity at that time. 8. PW3 Smt. Achhan Devi deposed that deceased Monu was her grandson. He was of about 13-14 years of age. He was a student of 6th standard. He used to live with her. He used to work at Pushkar Hotel. She along with her elder grandson identified the dead-body of her grandson Monu after seeing the photographs. 8. PW3 Smt. Achhan Devi deposed that deceased Monu was her grandson. He was of about 13-14 years of age. He was a student of 6th standard. He used to live with her. He used to work at Pushkar Hotel. She along with her elder grandson identified the dead-body of her grandson Monu after seeing the photographs. In her cross-examination, she deposed that she came to know about the death of Monu after 8-10 days of the occurrence. 9. PW8 Head Constable Satish Kumar deposed that he got the post-mortem examination of the dead-body conducted on 24.6.2008. The doctor handed over a parcel of viscera, one parcel of clothes of the deceased and an other envelope and bones in some container for DNA Test. He handed over those articles to SI Data Ram. 10. PW10 Puran Chand Azad testified that a boy was working in their area outside a shop near Railway Station, Bhiwani. He was murdered. He received information being MC of the area. He did not know, who had committed that crime. He was declared hostile and was cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he deposed that he know accused Harish. He did not come to his shop after 2-3 days of incident. He did not state before him that he had committed the murder. However, his mother came to him and told that her son was falsely implicated in the case. He went to the police station and talked to Thanedar that one person was absconding. He had not given any statement to the police. He had not given statement, Ex.P12, to the police. 11. PW11 SI Inspector Data Ram was the Investigating Officer. On 28.6.2008, accused Harish was produced before him at Police Station by PW10 Puran Chand Azad, Ex. Municipal Councilor, Bhiwani. He told that accused admitted before him that he had committed the murder of Chhotu. Thereafter, the accused was interrogated. He made a disclosure statement that he along with Ram Avtar alias Kalia served liquor to Chhotu (since deceased). A tablet was mixed in the liquor. Thereafter, he was given slap and fist blows and was throttled. The dead-body was put in a katta (bag). He put the bundle of the dead-body on his head with the help of Ram Avtar alias Kalia and were going to throw it on the railway line. A tablet was mixed in the liquor. Thereafter, he was given slap and fist blows and was throttled. The dead-body was put in a katta (bag). He put the bundle of the dead-body on his head with the help of Ram Avtar alias Kalia and were going to throw it on the railway line. When they were near railway quarters, some employees of railway came there. On seeing them, they threw the dead-body at that place and ran away. He tried to locate Ram Avtar alias Kalia but could not succeed. 12. PW12 Suman deposed that Monu was son of an other wife of her husband Ranjit. He was residing with his grand-mother at Bhiwani. She did not know how he was murdered because at that time she was at Gwalior. She came to Bhiwani on 24.7.2008. She and her mother-in-law Achhan Bai (PW3) went to the police post. They saw clothes and photographs and identified that person as Monu. He was 15 years old. She lodged the FIR. 13. PW14 SI Rajpal Singh deposed that on 23.6.2008, he was posted as Incharge, Police Post, Dinod Gate. PW Chitru met him and he recorded his statement, Ex.P1. He made endorsement, Ex.P17. He went to the place of occurrence. He prepared the inquest report. He sent the deadbody for post-mortem examination. He prepared rough site plan of the place of incident, Ex.P18. The statements of the witnesses were recorded. The dead-body was referred to PGIMS, Rohtak. 14. PW15 Amir Chand Taneja prepared the site plan, Ex.P21. 15. PW13 Dr. P.K. Paliwal had conducted the post-mortem examination. According to him, after going through the report of FSL, Ex.P14, and in the absence of any external or internal injuries, he was of the opinion that it was not possible to ascertain the cause of death. 16. FSL Report is Ex. P14. As per report, no common poison could be detected in exhibits 1a (stomach and its contents), 1b (parts of small and large intestine), 1c (parts of liver, spleen and kidneys) and 1d (saline preservative approx. 500 ml.). 17. PW1 Chitru is the material witness. He has not supported the case of the prosecution. In his statement recorded vide Ex.P1, he has stated that the accused tried to cover his face with blanket. 500 ml.). 17. PW1 Chitru is the material witness. He has not supported the case of the prosecution. In his statement recorded vide Ex.P1, he has stated that the accused tried to cover his face with blanket. While appearing as PW1, he deposed that he could not identify the person at that time because he had covered his face with blanket. He was declared hostile and was cross-examined. 18. PW2 Bishamber has also not supported the case of the prosecution in its entirety. He was also declared hostile and was crossexamined. 19. According to PW11 SI Inspector Data Ram, on 28.6.2008 accused Harish was produced before him at Police Station by PW10 Puran Chand Azad, Ex. Municipal Councilor, Bhiwani. The accused was interrogated. However, when Puran Chand Azad appeared as PW10, he has not supported the case of the prosecution. According to him, he did not know, who had committed the crime. He was also declared hostile and was cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that he know accused Harish. But he did not come to his shop after 2-3 days of incident. The accused had not stated before him that he had committed the murder. However, his mother told him that her son was falsely implicated in the case. He went to the police station and talked to Thanedar that one person was absconding. He had not given the statement, Ex.P12, to the police. 20. The accused was interrogated by PW11 SI Inspector Data Ram. The accused made disclosure statement that he along with Ram Avtar alias Kalia has offered liquor to Chhotu (since deceased) and mixed something in his liquor. However, no poison was detected in exhibits 1a (stomach and its contents), 1b (parts of small and large intestine), 1c (parts of liver, spleen and kidneys) and 1d (saline preservative approx. 500 ml.) vide FSL Report, Ex.P14. 21. No motive has been attributed to the accused. The case is based on circumstantial evidence. The motive plays an important role in the case based on circumstantial evidence. The cause of death could not be ascertained as per the deposition of PW13 Dr. P. K. Paliwal. 22. The prosecution could not prove the case against the appellant beyond reasonable doubt. Accordingly, the appeal is allowed. The judgment and order of the learned trial Court are set aside. The cause of death could not be ascertained as per the deposition of PW13 Dr. P. K. Paliwal. 22. The prosecution could not prove the case against the appellant beyond reasonable doubt. Accordingly, the appeal is allowed. The judgment and order of the learned trial Court are set aside. The appellant is acquitted of the charges framed against him. 23. We appreciate the assistance rendered by Mr. H. S. Grewal, Legal Aid Counsel, in the present appeal.