Criminal Appeal No.70-SB of 1997.
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In the High Court of Punjab and Haryna at Chandigarh.
Criminal Appeal No.70-SB of 1997.
Date of decision:22-8-2008.
Yogesh Kumar.
...Appellant.
Versus
State of Haryana.
...Respondent.
...
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr. Jagdish Manchanda Advocate for the appellant.
Mr.Sidharth Sarup, AAG Haryana.
...
K. C. Puri, J.
Judgment.
The appellant along with other co-accused faced trial in
case FIR No.320 of 21.8.1990,under Sections 147, 148,149 454,
435,436 477 IPC and ¾ of the Prevention of Damage to Public
Property Act, 1984, Police Station Ambala Cantt. Vide judgment
dated 11.1.1997 passed by Shri P.L.Ahuja, the then Additional
Sessions Judge, Ambala, the co-accused of the appellant were
Criminal Appeal No.70-SB of 1997.
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acquitted but he was convicted under Sections 148, 451, 435, 436,
152, 186, 353 read with Section 149 IPC and ¾ of the Prevention
of Damage to Public Property Act, 1984 and vide separate order
dated 13.1.1997, he was sentenced to undergo rigorous
imprisonment for a period of seven years and to pay a fine of
Rs.2,000/- and in default of payment of fine, to undergo rigorous
imprisonment for six months under Section 4 of the Prevention of
Damage to Public Property Act, read with Section 149 IPC. He
was further sentenced to undergo imprisonment for a period of two
years and to pay a fine of Rs.1,000/- and in default of payment of
fine, to undergo further rigorous imprisonment for three months,
under Section 3 of the Prevention of Damage to Public Property
Act, read with Section 149 IPC. He was also sentenced to undergo
rigorous imprisonment for a period of seven years and to pay a fine
of Rs.2,000/- and in default of payment of fine, to undergo further
rigorous imprisonment for six months, for the offence punishable
under Section 436 read with Section 149 IPC. He was further
sentenced to undergo rigorous imprisonment for a period of two
years and to pay a fine of Rs.1,000/- and in default of payment of
fine, to undergo rigorous imprisonment for three months for the
offence punishable under Section 435 read with Section 149 IPC.
He was further sentenced to undergo rigorous imprisonment for a
Criminal Appeal No.70-SB of 1997.
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period of one year for the offence under Section 148 IPC. He was
further sentenced to undergo rigorous imprisonment for a period of
one year under Section 451 read with Section 149 IPC, to undergo
rigorous imprisonment for a period of one year under Section 152
read with Section 149 IPC, to undergo rigorous imprisonment for
three months under Section 186 read with Section 149 IPC and
rigorous imprisonment for one year under Section 353 read with
Section 149 IPC. All the sentences were ordered to run
concurrently. However, the learned trial Court acquitted co-
accused of the appellant.
The instant appeal is directed against the said
judgment/order.
The brief facts, as are borne out from the record, are
that on 21.9.1990, SI Om Parkash (since expired) alongwith ASI
Tara Chand (PW18), HC Jai Singh (PW19) and other officials was
present at General Post Office, Ambala Cantt in connection with
duty in respect of anti-reservation duty. At about 11.45 A.M, a
mob of 350 persons came from the side of Employment Exchange.
The appellant along with his co-accused Raj Kumar, Amit Jindal,
Lovely, Sanjay Mittal, Baljinder Dagar, Vivek, Lalit Kumar,
Naveen Bhatnagar, Naveen alias Bittu were members of that mob.
Three boys were riding on motor cycle No.HNC-5960. They were
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holding one Pipi containing petrol. Hanni, Daljit, President
G.M.N.College, Ambala Cantt, Dhiraj, Vijay Kumar, Sandeep
Duggal, M.L.Sharma, Raju, Parveen, Anil Kumar, Sukhvinder
Singh, Pardeep Khera, Raj Kishore, Suresh Kumar, Parveen
Kumar, Sanjay Jain, Sunil, Ved Parkash, Vijay, Baljit, Veda and
Kala etc. were also members of that mob. Those persons were
carrying Dandas, Lathis and pieces of stones. They were shouting
that G.P.O .be set on fire and money be looted and Government
vehicles be set on fire. The violent mob started pelting stones. The
members of the mob sprinkled petrol on the building and set the
same on fire. The police resorted to lathi charge and the crowd
dispersed. Thereafter, the mob went to the office of Post Master
General, Ambala Cantt and set it on fire. Some vehicles parked
outside the office of Post Master General were also set on fire.
Then the crowd came on Gol Chakkar and set a vehicle of Fire
Brigade of military on fire. Appellant Yogesh Kumar sprinkled
petrol and his servant Raj Kumar alias Raju lit fire. Then the mob
went to the Super Bazar, Rai Market, Ambala Cantt and looted the
articles of the shops and the shops were set on fire. Lathi charge
was resorted to and thereafter the crowd went to the office of
Excise and Taxation Department and set it on fire. Government
vehicles parked in the compound were also set ablaze. The crowd
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started pelting stones on police and ASI Tara Singh received
injuries. Thereafter, the crowd dispersed. Om Parkash SI sent
ruqqa Exhibit PE to the Police Station on the basis of which the
present case was registered against the accused persons. He also
prepared site plans Exhibits PH to PR. Accused persons were
arrested.
After the completion of investigation and other usual
formalities, challan was presented in the Court against the accused.
The appellant and his co-accused were accordingly
charge-sheeted to which they pleaded not guilty and claimed trial.
In order to substantiate its allegations, the prosecution
examined PW-1 J.P.S.Parmar, PW-2 Madan Lal, PW-3 Naresh
Chand Sharma, PW-4 Constable Jaipal, PW-5 Roop Lal, PW-6
Avtar Singh, PW-7 ASI Madan Lal, PW-8 Ram Mehar Chowkidar,
PW-9 Tarlok Chand, PW-10 Satish Chander Wahi,PW-11 Tilak
Raj Prasher, PW-12 Inder Pal, PW-13 Des Raj, PW-14 Shri
Kulwant Rai Kalra, Assistant Accounts Officer,PW-15 Subhash
Goyal, PW-16 Gulshan Kumar, PW-17 Constable Parkash Chand,
PW-18 ASI Tara Chand and PW-19 HC Jai Singh.
In their statements recorded under Section 313 Cr.P.C,
the accused pleaded false implication. However, they did not lead
any evidence in their defence.
Criminal Appeal No.70-SB of 1997.
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The learned counsel for the appellant has submitted
that, in this case, there were 20 accused who were charge-sheeted
under the various provisions of Indian Penal Code as mentioned in
the charge-sheet and under Section ¾ of the Prevention of Damage
to Public Property Act. All the accused except the appellant have
been acquitted by the learned trial Court. The other accused who
have been arrested at the spot have even been acquitted on account
of their non-identification. The learned trial Court has convicted
the appellant on the basis of testimony of PW-18 ASI Tara Chand
and PW-19 HC Jai Singh. Both these witnesses have stated that
they have failed to identify any of the accused except appellant
Yogesh Kumar. There was a reason for falsely implicating the
appellant as the appellant was the leader of of Bhartiya Janta Yuva
Morcha, Ambala and raised slogans against Inspector Sahib Ram,
who was the then SHO of Police Station, Ambala Cantt. on many
occasions prior to the occurrence. Inspector Sahib Ram was feeling
aggrieved against the appellant on that count and only for this
reason, PW-18 ASI Tara Chand and PW-19 HC Jai Singh
identified the appellant in the Court. No identification parade was
conducted by the police during investigation. So many private
witnesses have been examined by the prosecution and none of
them has identified any of the accused including the appellant. The
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identification by the Police Officer, for the first time in the Court,
cannot be the basis of conviction.
It has been further submitted that according to the case
of the prosecution, there was mob of 350 persons which indulged
in unlawful activities including setting the Government vehicles
and property on fire. On the same set of evidence, 19 accused have
been acquitted and there was no reason for the trial Court to
convict the appellant. The testimony of two official witnesses who
were inimical towards the appellant has been wrongly relied upon
by the learned trial Court.
It has further been submitted that in the statements
under Section 161 Cr.P.C of PW-18 ASI Tara Chand and PW-19
HC Jai Singh, there was no specific mention that Yogesh Kumar
Garg, appellant made any provocation regarding setting on fire of
Government vehicles.
Learned counsel for the appellant has further submitted
that PW-19 HC Jai Singh in his cross-examination has stated that
he has given the names of seven accused in his statement but when
he was confronted with his statement under Section 161 Cr.P.C,
the names of many other accused were mentioned there. He further
stated that the names of other persons, other than seven might have
been written by the Investigating Officer, himself. So, it was
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submitted that when the Investigating Officer can manipulate the
names of many accused, in that case, it is highly unsafe to convict
the accused on the testimony of that witness.
The learned State counsel has supported the judgment
of the trial Court. He has submitted that the other accused have
been acquitted as they have not been identified by the eye
witnesses. PW-18 ASI Tara Chand and PW-19 HC Jai Singh have
supported the case against the appellant and his case is different
from the other accused.
I have carefully considered the said submissions made
by both sides and have gone through the record of the case.
The learned trial Court has convicted the appellant
solely on the basis of testimony of PW-18 ASI Tara Chand and
PW-19 HC Jai Singh. The prosecution has examined so many other
private persons. None of them has identified the accused as culprit
in the present case. Now, the question arises whether on the
testimony of PW-18 ASI Tara Chand and PW-19 HC Jai Singh
conviction can be based. The answer to that question is in the
negative. H.C. Jai Singh has stated that he has given the names of
7 accused to the Investigating Officer and names of other accused
have been mentioned by the Investigating Officer himself. So, in
case his statement is taken as correct, in that case, the names of 13
Criminal Appeal No.70-SB of 1997.
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accused have been mentioned by the Investigating Officer himself.
Investigating Officer was not examined as he expired during the
pendency of case. So, when there were chances of manipulation of
the names of 13 accused, in that case, the testimony of this witness
cannot form basis of conviction of appellant. On the same set of
evidence,all the accused except appellant have been acquitted.
Even the accused who have been arrested at the spot have been
acquitted by the trial Court. No identification parade was held at
any stage of trial. The defence version is more probable and the
possibility cannot be ruled out that PW-18 ASI Tara Chand and
PW-19 HC Jai Singh have specifically named the accused on
account of grudge of the SHO of the Police Station with the
appellant as suggested to these witnesses. Needless to say, PW-18
ASI Tara Chand and PW-19 HC Jai Singh being subordinates of
Inspector Sahib Ram will toe to the line of his superior in
identifying the appellant. Both these witnesses have also named
other persons in the Court itself but those persons have been
acquitted by the trial Court. So, no ground for convicting the
appellant in such a serious offence is made out. In the FIR itself,
the names of other accused are mentioned. The Court cannot do
imparity with the co-accused situated in similar situation.
PW-18 ASI Tara Chand has stated that Vijay Mittal
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accused caused him injury with the help of a piece of stone. Said
Vijay Mittal has not even been recognised by this witness in the
Court. The reason for falsely identifying the appellant is that he
had raised slogans against Inspector Sahib Ram.
Further more, the statements of PW-18 ASI Tara
Chand and PW-19 HC Jai Singh are discrepant on material
particulars. PW-18 ASI Tara Chand stated that the appellant
sprinkled petrol and Raj Kumar accused set the vehicle of Fire
Brigade on fire. But, PW-19 HC Jai Singh deposed that appellant
Yogesh Kumar sprinkled petrol on the vehicle of Fire Brigade and
he also set the said vehicle on fire. PW-18 ASI Tara Chand
deposed that SHO Sahib Ram met him on PMH and they went to
the Goal Chakkar in the vehicle of the SHO. On the other hand,
PW-19 HC Jai Singh, who was also a member of the police party,
stated that the SHO did not meet them. These material
contradictions in the statements of PW-18 ASI Tara Chand and
PW-19 HC Jai Singh shake the veracity of their testimony and no
implicit reliance can be placed on their statements, particularly
when they had a strong motive for falsely implicating the
appellant.
Moreover, it is not safe to base conviction of the
appellant on the same set of evidence on which the other 19 co-
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accused have been acquitted.
In view of the above discussion, the appeal is accepted.
The impugned judgment/order of the trial Court stand set aside and
the appellant stands acquitted of the charges framed against him by
giving him benefit of doubt.
A copy of this judgment be sent to the trial Court for
strict compliance.
August 22nd ,2008. ( K. C. Puri ) Jaggi Judge