IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
1)
Criminal Appeal No. 534-DB of 2000
Dated of Decision:- March 05, 2009
Ashok Kumar and another ....APPELLANTS
VERSUS
The State of Haryana ....RESPONDENT
2)
Criminal Appeal No. 118-DB of 2001
Arun ....APPELLANT
VERSUS
The State of Haryana ....RESPONDENT
CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL
HON'BLE MR. JUSTICE L.N.MITTAL
Present:- Sh. R.S.Cheema, Senior Advocate with
Sh. Pawan Girdhar, Advocate
for the appellants. (In Crl. Appeal No. 534-DB of 2000).
Sh. Gorakh Nath, Advocate
for the appellant. (In Crl.Appeal No.118-DB of 2001)
Sh. Kulvir Narwal, Addl. Advocate General Haryana
for respondent.
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Criminal Appeal No. 534-DB of 2000 &
Criminal Appeal No. 118-DB of 2001
MEHTAB S.GILL, J.
We are deciding Criminal Appeal No.534-DB of 2000 and
Criminal Appeal No.118-DB of 2001 with a common judgment/order, as
they arise out of the same judgment/order dated 6/9.9.2000 of the learned
Addl. Sessions Judge, Sonepat.
The learned trial Court convicted Ashok Kumar son of Karan
Singh, Shri Om son of Sahab Singh Beragi and Arun son of Mahender
Singh Tyagi under Section 302 read with Section 34 IPC and sentenced
them to undergo life imprisonment. They were directed to pay a fine of
Rs.15,000/- each and in default of payment of fine to further undergo R.I.
for three years. Appellant Shri Om was further convicted under Section 25
of the Arms Act and sentenced to undergo two years R.I. He was directed
to pay a fine of Rs.3,000/- and in default to further undergo R.I. for six
months. Sentences were ordered to run concurrently.
The case of the prosecution is unfolded by the statement Ex.PC
of Hawa Singh given to SI Inder Singh, SHO, Police Station Sadar, Sonepat.
Hawa Singh stated, that he is Chowkidar in Village Barwasni.
On 9.10.1998 in the morning, Kehar Singh son of Khema of Village
Barwasni came and told him that in the canal of west Yamuna of Village
Barwasni near the Juan drain, a dead body of a young man was floating on
the eastern side of the drain. Blood was smeared on his clothes. Hawa
Singh along with Mehar Singh, Mohinder Singh Chowkidar, Jai Kishan son
of Inder Singh went to the Barwasni canal and found the dead body of a
young man on the bridge of the eastern side of the canal, which was
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Criminal Appeal No. 534-DB of 2000 &
Criminal Appeal No. 118-DB of 2001
entangled in the grass. Blood was smeared on his clothes. Murder of a
young man had been committed by unknown persons.
On the basis of this statement, FIR Ex.PC/1 was registered was
on 9.10.1998 at 9.30 a.m. and the special report Ex.PC/2 reached the
J.M.I.C. on the same day at 6.40 p.m.
The prosecution to prove its case brought into the witness box,
HC Hawa Singh PW1, MHC Ramesh Chander PW2, Hawa Singh
Chowkidar PW3, Puran PW4, Meera PW5, Constable Surender Singh PW6,
UGC Sukhbir Singh PW7, Constable Bijender Singh PW8, Dr.
S.K.Dhattarwal PW9, Ashok Kumar Patwari PW10, Dilsher PW11, Sita
Ram PW12, Sube Singh PW13, SI Inder Singh PW14, DSP Abhey Singh
PW15 and Jamma Hushan PW16. In defence, the accused examined
Hoshiar Singh DW1.
Learned counsel for the appellants has argued, that both the
star witnesses of the prosecution i.e. Dilsher PW11 qua the extra judicial
confession and last seen evidence as propounded by Sube Singh PW13 are
not reliable witnesses.
Dilsher PW11 did not have any association with the appellants,
but has associated with the family of the complainant. It is unsafe to rely
upon this witness, as he is telling lies regarding his past life. He has been
tried in a number of criminal cases, but has denied it when he came into the
witness box before the Court. After the alleged extra judicial confession
made by appellants before Dilesher PW11, he has stated that he went to
meet Mr. S.P.Tyagi, Advocate, but did not tell him anything about the
occurrence. Appellants surrendered on 28.10.1998. There was no need for
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Criminal Appeal No. 534-DB of 2000 &
Criminal Appeal No. 118-DB of 2001
the appellants to confess their guilt before Dalsher PW11 on 22.10.1998, as
they surrendered in Court themselves on the same day.
Similarly, the last seen evidence propounded by Sube Singh
PW13, the uncle of the deceased, is also not trustworthy. Sube Singh PW13
has stated, that he last saw the deceased in the company of appellants Ashok
Kumar and Arun on 7.10.1998, but strangely he did not tell anything to
Puran PW4, the father of the deceased for a couple of days.
In the remand application dated 24.10.1998, where the
Investigating Officer has prayed for police remand of the accused, nothing
has been mentioned about the extra judicial confession made by Dilsher
PW11 and the last seen evidence propounded by Sube Singh PW13.
Puran PW4 in his testimony has stated nothing regarding
suspicion qua the appellants.
Learned counsel for the State has argued, that the last seen
evidence as propounded by Sube Singh PW13 is categorical and clear, that
it was appellants Ashok Kumar and Arun who took the deceased away. Dr.
S.K.Dattarwal PW9, who prepared the post mortem report has stated, that
death must have occurred 2/3 days earlier. Dilsher PW11 has an
association with the police. He has known to the police and that is the
reason, appellants came to him so that they could be produced before the
police and also they be not harassed.
Father of the deceased Puran PW4 has been truthful in not
pointing out a finger towards anyone so that the Investigating officer could
come to the truth without any influence.
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Criminal Appeal No. 534-DB of 2000 &
Criminal Appeal No. 118-DB of 2001
Disclosure statement Ex.PE made by appellant Ashok Kumar
and knife recovered qua the disclosure statement Ex.PF of appellant Arun
are pointing to the guilt of the appellants. The spot from where the body
was recovered has been pointed out by appellant Shri Om, which is Ex.PP.
We have heard the learned counsel for the parties and perused
the record with their assistance.
Puran PW4, the father of the deceased, in his testimony before
the Court has stated, that his son Dharamender alias Sarfudeen was working
as a tailor near Subzi Mandi Sonepat. He had to commute daily. On
9.10.1998 the police told him of the discovery of the dead body of his son,
as his son had gone missing. He identified the dead body of his son from
his facial look, general appearance and an identification mark on the right
side of his chest. Puran PW4 strangely has not pointed out an accusing
finger towards the appellants. He has not said a word, that the appellants
committed the murder of his son. He in fact has not even suspected them of
committing the murder of his son. In his cross-examination also, he has not
stated anything against the appellants.
We are left with the statements of the two witnesses i.e. Dilsher
PW11, before whom the alleged extra judicial confession was made and
Sube Singh PW13, who allegedly saw the deceased in the company of
appellants Arun and Ashok Kumar.
Coming first to the statement of Dilsher PW11, he has stated,
that he is the ex-Sarpanch of Village Dewru. On 22.10.1998, when he was
on his way to Sonepat to attend the courts, he met the three appellants at
Hanuman Mandir about 50 yards away from the court building. All the
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Criminal Appeal No. 534-DB of 2000 &
Criminal Appeal No. 118-DB of 2001
three told him, that on 7.10.1998 they had killed Sarfudeen @ Dharmender
and threw his dead body in the Barwasni canal. He was the ex- Sarpanch of
the village. He wanted to produce them before the police so that they were
not harassed. They went away and he waited for two hours, as he was under
the impression, that the appellants would come back. After waiting for
them, he went to meet Mr. S.P.Tyagi, Advocate and thereafter he went to
police station Sadar Sonepat. This witness was put a suggestion, that he
was involved in 35 cases of theft and dacoity. In some cases, he was
convicted and in some he was sentenced. He has denied his involvement in
any case, but admitted that when he was a young boy, he was convicted in
the case of theft of chillies. He has further stated, that he was a witness for
the prosecution in some cases. This witness has stated, that he knew the
father of deceased Dharmender and he had accompanied him to the hospital.
Dilsher PW11 in fact is not telling the truth. Firstly, if the appellants had
made an extra judicial confession before him on 22.10.1998, then there was
no need for them to surrender in the Court on the same day i.e. on
22.10.1998 and they would have waited for Dilsher PW11 to produce them
before the police. Constable Hoshiar Singh, who appeared as DW1, has
brought on record a number of FIRs, which have been registered against
Dilsher PW11. Photo copies of some of them have been put on record as
Ex.D1, Ex.D2, Ex.D3, Ex.D4 and Ex.D5. By denying that no FIR has been
registered against him except one, Dilsher PW11 has shown himself to be
an untruthful witness. His testimony cannot be believed.
Coming to the other witness Sube Singh PW13, who has stated,
that he last saw the deceased in the company of appellants Arun and Ashok
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Criminal Appeal No. 534-DB of 2000 &
Criminal Appeal No. 118-DB of 2001
Kumar. His testimony is also not worthy of any credence. He has stated
before the Court, that he was present in the chaubara in Subzi Mandi
Sonepat on 7.10.1998, where a companion of Sarfudeen @ Dharmender
named Pappu used to work. Appellants Ashok Kumar and Arun came there
and asked Dharmender to company them to some place. Dharmender went
away with them. He was in the chaubara with Hawa Singh PW3. Both of
them stayed there for 5/10 minutes and then returned to the village. He
learnt after about 2/3 days, that Dharmender had been murdered. Hawa
Singh PW3 has not stated anything regarding deceased Dharmender being
in the company of appellants Arun and Ashok Kumar. Sube Singh PW13 is
the uncle of the deceased. There was no need for him to keep quiet for 2/3
days and tell Puran PW4, regarding deceased being seen with appellants
Arun and Ashok Kumar so late. This witness also has been implanted and
is not telling the truth.
In application dated 24.10.1998 of police remand being
requested by the Investigating Officer from the Magistrate, there is no
specific reference to the statements of Dilsher PW11 and Sube Singh PW13.
If on 24.10.1998 Dilsher PW11 and Sube Singh PW13 were in custody of
the Investigating Officer Inder Singh, SHO PW14, he would have
mentioned it in the remand application so that he could convince the Duty
Magistrate to get the police remand of the appellants. We have perused the
remand application, but nothing has been mentioned about Dilsher PW11
and Sube Singh PW13. In fact by going through the remand application it
seems that by 24.10.1998 statements of Dilsher PW11 and Sube Singh
PW13 had not been recorded.
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Criminal Appeal No. 534-DB of 2000 &
Criminal Appeal No. 118-DB of 2001
Learned counsel for the appellants has relied upon the
judgment of the Hon’ble Supreme Court in Surinder Kumar Vs. State of
Punjab, AIR 1999 Supreme Court 215, where the Hon’ble Apex Court has
observed as under: –
” 5. Having carefully gone through the entire evidence on
record, we are unable to hold that the prosecution has been able
to conclusively prove the charge levelled against the appellant.
Coming first to the extra-judicial confession, we find that the
evidence of P.W.6, who only testified about it, is improbable
and lacking in credence. It does not stand to reason- rather it
seems odd- that all the four accused persons should be seized at
the same time by a mood to approach P.W.6 to make a joint
confession. It is significant to note that they had no particular
relationship or connection with P.W.6, so as to confide in him
and take his assistance for surrendering before the police. If
really, they wanted to surrender- as is the evidence of P.W.6-
we fail to unserstand why instead of going to the Police they
would approach him and blurt out a confession before him.
Another compelling reason which makes the evidence of P.W.6
in this regard suspect is that even though he was, admittedly,
close to the family of the deceased, he did not disclose the
names of the accused persons to Mrs. Nirmal Pal (P.W.2), the
wife of the deceased, who lived at a distance of one furlong
from his house and was not aware as to who killed her
husband. His claim that he told P.W.10 about the confession
on July 5, 1992 is also not corroborated by him (P.W.10).
While on this point it is pertinent to mention that in the remand
application that P.W.10 filed on July 10, 1992 after producing
the accused before the Magistrate concerned he did not
disclose that they had made a confession before P.W.6. From
the impugned judgment we find that when this aspect of the
matter was brought to the notice of the High Court by the
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Criminal Appeal No. 534-DB of 2000 &
Criminal Appeal No. 118-DB of 2001
appellant’s counsel it observed that all details were not
required to be given in that application. We are unable to share
the above view of the High Court for if really such a confession
was made before P.W.6 and told to P.W.10 it was expected that
in praying for the remand of the accused, he (P.W.10) would
refer the same, for that was the only material on which the
prosecution could primarily rely in justification of such prayer.
For the foregoing reasons we are unable to accept the claim of
P.W.6 that the appellant and other accused made a confession
of their guilt before him”.
This judgment (supra) applies squarely to the case in hand.
With the above discussion and observations, a doubt is created
in our mind as to whether the appellants have committed the murder of
Dharmender @ Sarfudeen, the benefit of which goes to the appellants.
Criminal Appeal No.534-DB of 2000 and Criminal Appeal
No.118-DB of 2001 are allowed. Conviction and sentence of the appellants
is set aside. They are acquitted of all the charges framed against them. If in
custody in this case, they be set free forthwith.
(MEHTAB S.GILL)
JUDGE
(L.N.MITTAL)
March 05, 2009 JUDGE
SKArora
WHETHER TO BE REFERRED TO REPORTER? YES/NO