Punjab-Haryana High Court
Azad Singh vs Hy St on 22 December, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
307 CRA-S-962-SB-1999 (O&M)
Reserved on 10.11.2022
Date of Decision: 22.12.2022
Azad Singh and another ...Appellants
Versus
State of Haryana ... Respondent
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Gautam Dutt, Advocate and
Mr. Vishal Sharda, Advocate
for the appellants.
Ms. Sheenu Sura, DAG, Haryana.
N.S.SHEKHAWAT, J.
The present appeal is directed against the judgment of
conviction and order of sentence dated 01.06.1999 passed by the
Court of learned Sessions Judge, Faridabad, whereby, the appellants
had been convicted under Section 304/34 of the IPC and were
sentenced to undergo rigorous imprisonment for ten years each and to
pay a fine of Rs. 500/- each alongwith default clause.
The FIR in the instant case was got registered by
Rajender Singh by stating that he was resident of village Nawada and
was residing in Nehru Colony near Dabua Pali Road and even his
children were staying with him in his own house. At about 11
O' clock, in the night of 11.09.1998, he was present at his house and
was operating the electric motor to fill the water in the tank. In the
meantime, he heard noise of "Chor Chor" from the side of Nehru
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Colony and on hearing the same, he also went towards that direction.
When he reached in the vacant plot adjoining the house of Azad Singh
son of Chet Ram, he found that Azad Singh, Radhey Shyam, Farid
son of Rashid Ahmed and Mohd. Farooq son of Mohd. Ali residents
of Nehru Colony were beating an unknown person with 'danda' and
were asking him his name and address and were saying that he
wanted to enter into the house of Farid to commit the theft. Due to the
beatings by them, the said unknown person became unconscious and
fell on the ground. A crowd had gathered there. The complainant and
his neighbour Sukh Pal told them to shift him to the hospital. On this,
Radhey Shyam, Farid and Farooq had put that person on a rickshaw
and went to the doctor and the complainant went to his house. The
complainant identified the dead body of the said unknown person and
stated that he was beaten up by Azad, Radhey Shyam, Farid and
Mohd. Farooq with dandas and had taken away for treatment. With
these broad averments, the FIR was registered by the police against
the named accused.
After the registration of the FIR, the investigation was
conducted by the local police and the final report under Section 173
Cr.P.C., was presented against the persons named in the FIR and it
was concluded during the investigation that the accused had
committed offence under Section 304/34 IPC.
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After the presentation of challan, the case was committed
to the Court of Sessions as it was triable by the Court of Sessions.
Finding a prima facie case against the accused, they were
ordered to be charged under Section 304/34 IPC vide order dated
17.12.1998 and the accused pleaded not guilty and claimed trial.
In support of the prosecution case, the prosecution
examined PW1 Dr. S.K. Bhutani, who had conducted the postmortem
examination on the dead body, of an unknown person on 12.09.1998.
He stated that the rigor mortis was present and contusions were
present all over the body bluish in colour. There was bleeding from
the penis. On moving the lower limbs, fracture of left side of pelvic
bone was felt. On dissection, fracture of pelvic bone on the left side
was found and the blood was present in the pelvic cavity. All other
organs were normal and healthy. As per his opinion, the cause of
death was due to shock and hemorrhage because of fracture of pelvic
bone and internal bleeding, which were ante-mortem in nature and
sufficient to cause death in ordinary course of nature. He exhibited the
postmortem report as Ex.PA. The prosecution further examined PW2
Sukh Pal son of Ram Phal, who had turned hostile and did not support
the case of the prosecution. The prosecution further examined PW3
Rajender Singh, who stated that on hearing the noise, he went to the
Nehru Colony from where the noise was emanating. He saw near the
house of Azad Singh that Farid and Azad Singh, were beating the
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thief. Perhaps Azad Singh was armed with a 'danda' while Farid was
empty handed. Many people were collected there. Other persons were
also beating but he could not tell the number of such persons. When
he reached there, Azad Singh and Farid were beating him and while
beating they were inquiring the whereabouts of the thief. Radhey
Shyam and other persons, to whom, he did not identity had taken the
thief in a rickshaw to the hospital. He also identified the photograph
Ex.P1 of the boy who was given beating in the night. He was declared
hostile by the public prosecutor and his cross-examination was
allowed. In his cross-examination, he did not support the case of
prosecution partly stated that he had not disclosed to the police that
Radhey Shyam and Farooq were also beating the unknown thief
alongwith Azad Singh and Farid. In his cross-examination by the
learned defence counsel, he stated that he had seen the photograph
Ex.P1 for the first time in the Court. He stated that the man, to whom,
they were addressing as thief was lying on the ground when the
complainant reached there. In his presence, one or two danda blows
and one or two slaps were given. He admitted that there was a police
post in Dabua colony, which is at a distance of one furlong from his
house. He did not give any information to the police post. The name
of his friend is Harbir and his relative was admitted in the hospital
and the complainant had gone to see, but he could not state his name.
He could not say when that person was admitted in the hospital and
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for how long he stayed in the hospital. He could not tell his bed
number in the ward number. PW4 Harjit Singh, Photographer,
exhibited the photographs Ex.P1 to Ex.P4 and the negatives Ex.P5 to
Ex.P8. PW5 Balwant Singh informed the police on seeing the dead
body of an unidentified person. PW6 Ram Babu was the maternal
uncle of the deceased and he identified the dead body of Rajender
(since deceased). PW7 Kehar Singh, Sub-Inspector had recorded the
formal FIR Ex.PD/2 on getting the written information in this regard.
Further, PW8 ASI Dhan Singh was examined to prove the initial
investigation. He prepared the inquest report Ex.PB, site plan of the
place of the occurrence and also placed on record the steps taken by
the Investigating Agency initially. He arrested the accused on
14.09.1998 and recovered danda from their possession.
After closing the prosecution evidence, the incriminating
evidence was put to the appellants in the shape of statement under
Section 313 Cr.P.C. and their co-accused and they pleaded their false
implication. It was stated that they had been falsely implicated in this
case by Rajender Singh, who was having strain relations with them.
The accused did not lead evidence in defence.
I have heard learned counsel for the parties and perused
the trial Court record with their able assistance.
Learned counsel for the appellants vehemently contended
that the entire prosecution case was based on the testimonies of two
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alleged eye witnesses, i.e. PW2 Sukhpal Singh and PW3 Rajender
Singh. PW2 Sukhpal Singh had not supported the case of the
prosecution whereas PW3 Rajender Singh had only named both the
appellants, i.e. Azad Singh and Farid Ahmed whereas he had
exonerated Mohd. Farooq and Radhey Shyam, who were similarly
placed and the testimonies of PW3 Rajender Singh is liable to be
disbelieved by this Court only on this short ground. Still further, he
was merely a chance witness and had no occasion to be present at the
place of the occurrence. However, the said submission has been
opposed by the learned State counsel by stating that PW3 Rajender
Singh was neighbour of Azad Singh and on hearing the noise, he
immediately reached at the place of the occurrence and had witnessed
the same. Thus, he was not a chance witness and his testimony is
liable to be believed.
I have heard the submissions made by the learned
counsel for the parties and find no substance in the arguments raised
by the learned counsel for the appellants. No doubt, PW2 Sukh Pal
had not fully supported the case of the prosecution, however, PW3
Rajender Singh had specifically named and assigned roles to the
appellants. The testimony of PW3 Rajender Singh could not be
rejected on the ground that he did not name the co-accused Mohd.
Farooq and Radhey Shyam. PW3 Rajender Singh had not only named
both the appellants but had assigned specific roles to both the
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appellants. Still further, PW3 Rajender Singh clearly stated that he
was present near the house of Azad Singh and both the appellants
were beating the thief. Even both the appellants were known to him
earlier and he had full reason to identify both the assailants. He
clearly stated that when he reached at the place of occurrence, both
the appellants were beating him up. Even PW3 Rajender Singh was
cross-examined by the learned defence counsel at length and nothing
material could come out of the same. The testimony of PW3 Rajender
Singh, eye witness remained unshaken and can be believed by this
Court. The learned trial Court had recorded well reasoned judgment
and the same is liable to be upheld by this Court. Apart from the
submissions of the eye witnesses, the prosecution also examined PW1
Dr. S.K. Bhutani, B.K. Hospital, Faridabad, who had conducted
postmortem examination on the dead body of the unknown person on
12.09.1998. He admitted that contusions were present all over the
body, bluish in colour and there was bleeding from the penis. Apart
from that, the fracture of left side of pelvic bone was also found.
Thus, it is apparent that ocular version has been duly corroborated by
the medical evidence. Even, the allegations levelled by the
complainant were found to be correct during the course of
investigation. The prosecution examined PW8 ASI Dhan Singh, who
had taken up the investigation at the very initial stage and collected
various incriminating evidence against the present appellants. Even
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the appellants were not armed with any deadly weapon. Appellant
Azad Singh was carrying a 'danda' whereas accused Farid Ahmed
was empty handed and the occurrence had taken place at the spur of
moment. Thus, the impugned judgment of conviction passed by the
learned trial Court is liable to be upheld by this Court.
A perusal of the records show that the occurrence had
taken place on 12.09.1998 and the present appellants are facing the
agony of trial/appeal for the last more than 24 years. Even, their
sentences of imprisonment were ordered to be suspended on
21.11.2000 and they are on bail for the last more than 22 years and
had not misused the concession of bail. Even Azad Singh was aged 28
years and Farid Ahmed was aged about 23 years on the date of
framing of charge.
Consequently, keeping in view the above said facts, the
sentence imposed on the present appellants is reduced from ten years'
rigorous imprisonment to four years. However, the amount of fine is
enhanced from 500/- to Rs. 20000/- each. In default of payment of
fine, the appellants shall undergo a period of six months of
imprisonment.
They are directed to surrender before CJM concerned
within a period of 15 days from today, failing which, the CJM shall
issue warrants against them and commit them to custody to serve the
remaining sentence.
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With these above modifications, the present appeal
stands disposed of in the above terms.
All pending applications, if any, are disposed of,
accordingly.
The case property, if any, may be dealt with as per the
rules after expiry of period of limitation for filing the appeal.
Records of the Court below be sent back.
21.12.2022 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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