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PETITIONER: DEVINDER

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       13/09/1996

BENCH: M.K.MUKHERJEE , S.P.KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE,J.      The subject  matter of  challenge in this appeal is the judgment and  order dated  May  30,  1987  rendered  by  the Designated Court,  Rohtak, while  disposing of Sessions Case No. 550  of 1986  and Arms  Act Case No. 551 of 1986. By the impugned  judgment   and  order   the  Court  convicted  and sentenced the  appellant Devinder  @ Pappy under Section 302 IPC and  Sections 25  and 27 of the Arms Act, 1959 read with Section   6   of   Terrorist   and   Disruptive   Activities (Prevention) Act, 1985 (’TADA’ for short). 2. Shorn of details the prosecution case is as under: (a) Ramphal  (the deceased) used to sell vegetables from his shoo-cum-residence in the Janta Colony, Rohtak city. On July 26, 1986  at or  about 9 A.M. the appellant went to his shop and asked  for some  vegetables on  credit. Ramphal told the appellant that  as he had not paid his earlier dues he would not oblige  him any  more. Since such refusal of Ramphal was in the  presence of two others. namely, Jagdish (P.W.10) and Satbir Singh  (P.W.11), the appellant felt insulted and left in a huff. (b)  About twenty minutes thereafter the appellant came back with a  knife and remarked that he would teach him (Ramphal) a lesson  for insulting  him in  the presence  of    others. Ramphal, who  was then  cooking, stood   up and attempted to escape. He  however could not succeed in his  attempt as the appellant gave  him two  blows with  the knife  - one on the left side of the chest and the other on the  abdomen,Jagdish and Satbir  Singh, who were there still then. and one Umesh, who had reached there by chance, witnessed the assault. (c) Jagdish  and Umesh then carried Ramphal in a rickshaw to the Medical  College Hospital,  Rohtak where he was examined by Dr.  Sushil Kumar  Jain P.W.5)  first. After examination, Dr. Jain  sent a  medico   legal report  (Ex.PS) and a rukka (Ex.PD) to the Police Post attached to the hospital where an entry in  terms thereof  was made  by Constable Mangal Singh (P.W.1) in the daily diary book at 1.45 P.M. (Ex. PE). (d)  In the  meantime,however, - at 11.30 A.M. to be precise - the  City Police Station, Rohtak had received a telephonic message from  the above  Police Post  about the admission of

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Ramphal in  the hospital  with injuries  on his  person and, after  recording  that  message  in  the  daily  diary  book (Ex.PF), ASI  Tota Ram  (P.W.12) has  left for the hospital. Reaching there  he found  Jagdish present  and recorded  his statement (Ex.  PZ) at  2.40 P.M.  which was  treated as the FIR. After  forwarding the  statement to  the Police Station for registering  a case,  Tota Ram took up investigation and went to  the spot.  He prepared a rough site plan and seized some  blood-stained  earth  therefrom  in  the  presence  of Jagdish and Satbir. (e) Ramphal,  who was  admitted as  an indoor patient in the hospital, was operated upon by Dr. Pradeep Kumar (P.W.7) for his   injuries but he succumbed to them on the following day i.e.  July   27.1996  at  11.30  A.M.  On  receipt  of  that information the  case which  was earlier  registered against the appellant  under Section  307 I.P.C  was: converted into one under  Section 302  I.P.C. and a special Report (Ex. PH) was sent  to the local Magistrate. ASI Tota Ram them went to the hospital  and after holding ingest  upon the deadbody of Ramphal,sent it for autopsy which was performed by Dr. M.K. Bishnoi (P.W.9). (f)  In  course  of  the  investigation  the  appellant  was arrested on  July 29,  1986 and pursuant to a statement made by him  to Tota  Ram on  July 31.  1986 (Ex.  PEE) a  spring activated knife  concealed under  the bricks  in a  deserted kotha towards  the southern  boundary wall  of Hanuman Park, Rohtak was recovered in the presence of Jagdish (P.W.10) and Daya Chand.  After recovery of the knife a separate case was registered against  the appellant  under the  Arms Act, 1959 read with Section 6 of TADA. (g) The  blood-stained earth  recovered from  the spot,  the shirt removed  from the  deadbody of  Ramphal and  the knife recovered pursuant  to the  statement of  the appellant were sent to  the Forensic  Science Laboratory (F.S.L.), Madhuban for chemical examination and human blood was detected on all those articles  on such  examination. On  completion of  the investigation ASI  Tota Ram  submitted two  separate charge- sheets against  the appellant;  one under Section 302 I.P.C. for the  murder of  Ramphal on  July 26,  1986 and the other under Sections  25 and  27 of  the Arms  Act, 1959 read with Section 6  of TADA  for unlawful  possession and   user of a spring actuated knife. 3. The  two cases arising out of the above chargesheets were clubbed and  tried together  and were  disposed  of  by  the impugned judgment in the manner indicated above. 4. The  appellant pleaded not guilty to the charges levelled against him  and his  defence was  that at  the instance  of Jagdish and Ramphal he was falsely implicated in the case as he had, three days prior to the alleged murder of Ramphal, a quarrel with  Jagdish and  Umesh over  their misbehaviour in their locality under the influence of liquor. 5. In support of their respective cases prosecution examined twelve witnesses and the defence one. 6. To  sustain the  charge of  murder levelled   against the appellant the  prosecution rested  its case principally upon the ocular version jagdish (P.W.10) and Satbir (P.W.11). The Designated Court  found them  to be  the most  probable  and natural  witnesses   and  as   their  evidence  stood  amply corroborated by the evidence of the doctors, the recovery of the knife  pursuant to  the statement  of the appellant, and the report  of the  Forensic  Science  Laboratory  held  the appellant guilty of both the charges levelled against him. 7.     Having carefully gone through the entire materials on record, we  are unable  to sustain  the impugned  judgement. Though apparently  there is no reason  to disbelieve the two

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eye witnesses,  there are  certain underlying  circumstances which persuade us to give the benefit of reasonable doubt to the appellant.  According to  the prosecution  case - and as testified by  Jagdish  immediately after the assault Ramphal was taken  to the  hospital by  him (Jagdish) and Umesh (not examined), who  were present at the time of the assault. Dr. Jain testified  that at  the time  of admission  Ramphal was fully conscious  and  his  blood  pressure  and  pulse  were normal. From  the medico  legal report  (Ex.  PS)  that  the doctor sent  to the  police after  examining Ramphal we find that apart  from his name, the father’s name of Ramphal, his address, his  occupation  and  an  account  as  to  how  the injuries  were   caused  find  place.  Obviously  all  these particulars had  been furnished  by Ramphal,  and/or Jagdish and Umesh,  who had  accompanied him. In that context it was expected, if  really the  appellant was  the assailant, that his name  would be  disclosed by  all or  any of  them while furnishing the  cause of the injuries. It can. therefore, be legitimately  inferred   that  at   the  earliest  available opportunity the name of the appellant was not disclosed. 8.   It was, however, contended by Mr. Malhotra appearing on behalf of  the respondent  that since the F.I.R.. was lodged by Jagdish  with promptitude  and therein  the name  of  the appellant  as   the  assailant   had  been  mentioned,  non- disclosurs of  his name  earlier before  the doctor, who was under no  statutory obligation  to record  the name  of  the assailant, was  of no moment. If the F.I.R.. was recorded at 2.40 P.M.  (on July  26, 1986) as indicated therein we might have persuaded   ourselves  to accept  the contention of Mr, Malhotra but  we find,  surprisingly enough, that no special report in   respect of the registration of the case was sent to the  Magistrate on that day: and, indeed, as the evidence on   record unmistakably  shows that it was forwarded to the Magistrate only  after the  case was  converted to one under Section 302 IPC consequent upon the death of Ramphal on July 27, 1986, and received in his office at 10 P.M. This glaring circumstance prompts us to hold that the F.I.R.. did not see the light  of the  day the till the death of Ramphal and the version of  the prosecution  that the F.I.R. was recorded on July 26, 1986 is not true. 9.      For the foregoing discussion the prosecution case as presented  before   the  Court   cannot  be   accepted.  We, therefore, allow  this appeal,  set aside the conviction and sentence recorded  against the appellant and acquit him. The appellant, who  is in  jail, be  released  forthwith  unless wanted in connection with some other case.