High Court of Punjab and Haryana, Chandigarh
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State of Punjab v. Surinder Kumar & Ors - CRA-D-599-DBA-1996  RD-P&H 11160 (23 November 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH.
Criminal Appeal No.599-DBA of 1996
Date of Decision: 28.10.2006
State of Punjab ..Appellant
Surinder Kumar and others ..Respondents
CORAM: Hon'ble Mr. Justice Viney Mittal
Hon'ble Mr. Justice H.S.Bhalla
Present:- Mr. S.S.Brar, Additional Advocate General, Punjab for the appellant.
None for the respondents.
This appeal has been filed by the State of Punjab against the judgment dated 9.9.1993 passed by Additional Sessions Judge, Gurdaspur, vide which he acquitted all the three accused-respondents of the charges framed under Section 302 read with Section 34 of the Indian Penal Code.
Succinctly, the case of the prosecution is that a bomb blast took place in Chaki Bazar, Batala. Constables Balwinder Singh and Vinod Kumar were present on duty near the gate of Civil Hospital, Batala. On account of the impact of the bomb blast, certain persons were killed and some were injured. In the meantime, a mob of about 300-400 boys came from inside Nehru Gate, Batala. Unfortunately, a Sikh gentleman was seen coming from the side of vegetable market and he was proceeding towards Nehru Gate, Batala. When he reached in front of the gate of Civil Hospital, the said mob caught hold of him and fell him on the ground. It started beating him. Kerosene oil was poured on that Sikh gentleman and set him on fire, as a result of which, he died at the spot.
On the statement made by Constable Balwinder Singh before Criminal Appeal No. 599-DBA of 1996 2
Sub Inspector Naranjan Singh, a case was registered. Investigation was conducted by Sub Inspector Naranjan Singh, who visited the spot, prepared inquest report and carried out other necessary formalities and after completing the same, challan was put in the Court.
The Additional Sessions Judge charge sheeted the accused under Sections 302 and 406 of the Indian Penal code, to which they pleaded not guilty and claimed trial.
In order to prove its case, the prosecution has examined Dr.
Surinder Singh (PW-1), Satish Kumar (PW-2), Baljit Singh (PW-3), Vinod Kumar (PW-4), Parjinder Singh (PW-5) and Deputy Superintendent of Police Darshan Kumar (PW-6).
In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-respondents denied the allegations levelled against them. They claimed themselves to be innocent and pleaded false implication.
After hearing the Public Prosecutor for the State, defence counsel and after going through the evidence available on record, the learned Additional Sessions Judge, Gurdaspur, vide his judgment dated 9.9.1993 acquitted all the accused.
Feeling aggrieved against the said judgment, the State of Punjab has preferred the present appeal.
We have heard Shri S.S.Brar, Learned Additional Advocate General appearing for the appellant-State of Punjab and have also gone through the record of the case and the reasons recorded by the learned Additional Sessions Judge in the impugned judgment.
Learned Additional Advocate General Mr. Sukhdeep Singh Brar appearing for the appellant-State of Punjab has vehemently contended that the reason for not reporting the matter to the police by Parjinder Singh (PW-5) immediately after the occurrence had taken place Criminal Appeal No. 599-DBA of 1996 3
was that, the curfew in the city Batala had been imposed for two days and on account of this fact, he could not go to the Police Station immediately for reporting the matter to the police, but this explanation furnished by the prosecution was not taken into consideration by the learned Additional Sessions Judge, Gurdaspur, while acquitting the accused persons of the charges framed against them. The second argument advanced by the learned counsel appearing for the appellant-State is that the learned trial Judge has committed a grave error in holding that the identification parade was not held to identify the accused before the Magistrate and the observations made by the learned trial Judge on the question of not holding identification parade in the presence of the witnesses are based on conjecture and surmises and therefore, are not sustainable in the eyes of law, particularly when the accused persons arrested by the police had already been identified by the witnesses and there was no necessity to hold a fresh identification parade before the Magistrate.
On the other hand, the learned defence counsel appearing before the trial Court argued that the learned trial Court has rightly evaluated the evidence of the eye witnesses, namely, Vinod Kumar (PW-4) and Parjinder Singh (PW-5) as there were material contradictions in their statements made before the Court, which go to the root of the prosecution case, therefore, no interference is called for in the impugned judgment and the trial Court has rightly given the benefit of doubt and acquitted of the charges framed against them. We have gone through the judgment and find from the record that the learned trial Court has rightly observed this fact that the presence of Parjinder Singh (PW-5) at the time of occurrence is not established, inasmuch as, he was not present at the time of occurrence, which finding made by the learned trial Judge does not call for any interference. Record further spells out that none of the witnesses produced by the prosecution has supported the prosecution version in the Criminal Appeal No. 599-DBA of 1996 4
manner it has been projected by Balwinder Singh, complainant, in the First Information Report lodged by him and in such like circumstances, the accused persons cannot be connected with the commission of crime.
At the very outset, we would like to observe that it is well settled law that order of acquittal can be interfered with only if there is an absolute assurance of the guilt of the accused upon the evidence on record and the High Court would not be justified in interfering with the order of acquittal, unless the same is found to be perverse and the order of acquittal can be set aside if the view taken by the trial Court is perverse. We would also like to observe that if on over-all appreciation of evidence available on record, two views are possible and when on appreciation of evidence, a particular view has been preferred by the learned Additional Sessions Judge and when the findings cannot be said to be perverse merely because another view is possible, the High Court would not be justified in interfering with the acquittal order recorded by the learned trial Judge. The entire case of the prosecution is to be scrutinised in the light of evidence available on record and keeping in view the observations made above.
After having gone through the record, it is crystal clear that occurrence in this case took place on 29.4.1988 at about 6.45 P.M. In the First Information Report, which was got recorded by Constable Vinod Kumar (PW-4), whose duty was at the gate of Civil Hospital, Batala, the name of Parjinder Singh (PW-5), the son of the deceased, is not mentioned therein. He even did not bother to go to the Police Station to lodge the report in the Police Station City Batala either on 29.4.1988 or on 30.4.1988 and he, for the first time, went to the police Station on 1.5.1988 at 3.00 P.M. and disclosed the name of his father to the police. This fact clearly shows that he was not present at the spot when the occurrence took place.
Had he been present at the time of occurrence, his name would have been figured in the First Information Report. The learned trial Judge has rightly Criminal Appeal No. 599-DBA of 1996 5
held that the presence of Parjinder Singh (PW-5) at the time of occurrence is not established in any manner and this finding recorded by the learned trial Judge is affirmed and does not call for any interference.
The next contention raised by the learned defence counsel before the trial court is that in this case identity of the accused has not at all been established by the prosecution, particularly when the names of the accused persons did not find mention in the First Information Report. In such like circumstances, it was essential on the part of the prosecution to arrange for the test identification parade before the Magistrate and therefore, it is unsafe to rely upon the testimony of the witnesses produced by the prosecution regarding identification of the accused persons. I find force in the contention raised by the learned defence counsel before the trial Court, inasmuch as, names of the accused persons or their description does not find mention in the First Information Report. Constable Vinod Kumar (PW-4) and Parjinder Singh (PW-5) have no-where stated before the Court that they previously knew the accused. Vinod Kumar (PW-4) has stated that for the identification of those eight persons, who were arrested on 8.5.1986, he, Balwinder Singh and Parjinder Singh were though called upon by the police to identify those persons in the police Station, but that test identification parade was not held in the presence of any Magistrate or any authority. No such record of the alleged identification parade was produced before the trial Court to establish this fact that in fact, the test identification parade was conducted in the police Station. In such like circumstances, it can be deduced beyond reasonable doubt that identification parade of the accused persons was not held before a Magistrate or any competent authority. Apart from the testimony of Constable Vinod Kumar (PW-4), even Parjinder Singh (PW-5) has made deposition before the trial Court that he did not know the names of the accused persons, their fathers' names or their addresses prior to the Criminal Appeal No. 599-DBA of 1996 6
occurrence. He has not stated in his statement Ex. DB names of Surinder Kumar son of Chuni Lal, Nehru Gate Batala, Parbodh Chander son of Mohan Lal Mahajan Mian Mohalla Batala and Bittu son of Brij Lal Pandhian, Mohalla Batala, Pappu son of Pala Ram, Pandhian Chowk, Batala, Vipin Kumar son of Kundan Lal, Chakri Bazar, Patiala and Surinder Kumar son of Kishan Lal., Nehru Gate, Batala. But when he was confronted with portion `A' to `A' with his statement Ex. DB, it was found that the said names of the accused and their addresses were recorded therein, whereas, according to him, he did not know the names of the accused prior to the occurrence or names of their father and addresses nor he supplied full particulars of the accused in his statement Ex. DB. Then the question arises how the particulars of the accused were figured in the statement Ex. DB, particulary when this witness had not named the accused persons in his statement. This certainly goes to show that the possibility of having the accused persons implicated falsely in the present case can not be ruled out, which causes a serious dent in the prosecution version. In addition to this, there is no material available on the file, which could establish this fact that Constable Vinod Kumar (PW-4) and Parjinder Singh (PW-5) actually recognised the accused persons to be the assailants and those assailants caused the death of the deceased by setting the deceased on fire. From the above discussion, it is clearly established on the record that no identification parade of the accused persons had been held before the Magistrate or other competent authority.
The learned Trial Judge has rightly held that the identity of the accused persons is not established on the record in any manner and the finding recorded by the learned trial Judge is hereby affirmed and does not call for any interference.
Now we would like to examine this case from another angle.
The record further spells out that the version contained in the First Criminal Appeal No. 599-DBA of 1996 7
Information Report is quite different to that of the version narrated by the witnesses before the trial Court. In the First Information Report, it is mentioned that mob of 300-400 boys came there. In the meantime, a Sikh gentleman was seen coming from the side of vegetable market and when he reached in front of Civil Hospital, it caught hold of him and fell him on the ground and it started belabouring him. Thereafter, it threw kerosene oil on that Sikh gentleman and set him on fire, whereas according to the testimony of the witnesses made before the trial Court, Bittu accused caught hold of that Sikh gentleman from his right arm. Pappu caught hold of him from his left arm. Vipin caught hold of the said gentleman from his long hair. Gill caught hold of the said man in his grip. Surinder caught hold of the said Sikh gentleman from his legs. Surinder Kumar threw kerosene oil on him and Parmod Kumar took out a match box from his pocket and threw a burning stick on the said gentleman and set him on fire. This statement has been made by constable Vinod Kumar (PW-4) before the trial court, but his accomplice Balwinder Singh, who was present along with him on duty at the gate of the Civil Hospital, Batala, has not stated even a single word in the First Information Report lodged by him. If the occurrence had taken place in the manner as deposed by the witnesses in the court, the same would have been narrated by Balwinder Singh, complainant, in the First information Report, which was lodged by him in the Police Station City Batala. I am in complete agreement with the conclusion arrived at by the learned Additional Sessions Judge that there has been lot of improvements in the prosecution case, which renders the prosecution version, as brought out on the record, to be not proved beyond doubt.
The above discussion would show that the false witnesses to the occurrence had been introduced to the case and there was an attempt to implicate innocent persons in the case. When the investigation is found Criminal Appeal No. 599-DBA of 1996 8
to be tainted, the whole of the prosecution case becomes open to serious doubt and challenges. The learned Additional Sessions Judge has rightly appreciated the evidence available on the record and acquitted all the accused of the charges framed against them, giving them the benefit of doubt and as such, we find no ground to interfere with the same in any manner. In the final analysis, we see no merit in the present appeal and the same, being devoid of any merit, is dismissed.
( H.S.BHALLA )
( VINEY MITTAL )
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