The High Court allowed an appeal by Jagbir, acquitted him of murder (Section 304 IPC) after finding that the state failed to prove the case due to reliance on hearsay testimony and lack of post-mortem evidence.
Judgment of the trial court set aside; accused appellant stands acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CRA No. S-1947 SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRA No. S-1947 SB of 2003 (O&M) Date of decision : 19.5.2014
Jagbir
................Appellant vs.
State of Haryana
.................Respondent
Coram: Hon'ble Mr. Justice K.C. Puri
Present: Sh.S.S. Hira, Advocate for the appellant.
Sh. S.S. Goripuria, Deputy Advocate General, Haryana.
K.C. Puri, J.
Challenge in this appeal is to the judgment and order dated 1/3.9.2003 passed by Sh. G.S. Kotla, Additional Sessions Judge, Gurgaon, vide which the accused appellant Jagbir has been convicted under Section 304 of the Indian Penal Code ( in short – the IPC) and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo rigorous imprisonment for two months.
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Shorn of unnecessary details, the brief facts of the case are that on 10.7.2000 an information was received on telephone in the police station on which Hem Chander SI reached village Bajghera where he came to know that one person had been buried under the soil who had been sent to General Hospital Gurgaon. Narender Singh s/o Attar Singh made a statement that on 9.7.2000 he got the information that three young boys were showing the feat on the cycle on Panchayat land in the village. During that show one item of samadhi was also to be shown. All the above three boys, in the course of show, dug a ditch of 6' depth and 4/5' wide and put Narender in the same in the form of samadhi and then the ditch was covered with earth after placing wooden planks on the same by Jagbir s/o Chandgi Ram and Amit s/o Raghunath of District Sonepat. They kept Narender burried for about 3 hours and thereafter when Narender was taken out, he was found unconscious. So many person from the village had also collected there. They sent Narender to General Hospital Gurgaon. Jagbir accused also accompanied him. He came to know that Narender had died. He then informed the police of Police Post Palam Vihar. Narender died due to the negligence of Jagbir and Amit accused. A case under Section 304-A IPC was registered. Jagbir and Amit were arrested on 12.7.2000. On the advice of Assistant District Attorney offence under Section 304 IPC was converted.
After completion of the invetigation, challan was presented against the accused.
Charge under Section 304 IPC was framed against both the
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accused, to which they pleaded not guilty and claimed trial.
The prosecution, in order to bring home guilt of the accused, examined PW-1 Kirpa Ram, complainant, PW-2 Mam Singh, PW-3 Pirthi, PW-4 SI Rampal, PW-5 Sarwan Kumar, Draftsman, PW-6 Narender Singh, PW-7 Hem Chander SI, PW-8 Sunil Dutt HC and closed the prosecution evidence.
During the course of trial, accused Amit died and the proceedings against him were dropped.
The accused Jagbir was examined under Section 313 Cr.P.C. and all the incriminating evidence was put to him, to which he pleaded innocence. He was called upon to lead his defence evidence but he had chosen not to lead any defence evidence.
Learned trial Court after appraisal of the evidence convicted and sentenced the accused Jagbir to undergo imprisonment and fine vide judgment and order dated 1/3.9.2003, as narrated above.
Feeling dissatisfied with the above said judgment and order dated 1/3.9.2003 passed by Sh. G.S. Kotla, Additional Sessions Judge, Gurgaon, the accused appellant has preferred the present appeal.
Counsel for the appellant has submitted that case of the prosecution is that deceased alongwith Amit and appellant Jagbir were showing the feat on the bicycle on Panchayat land in the village. During that show one item of samadhi was shown. All the three boys dug a ditch of 6' dept and 4' wide and Narender formed a samadhi.
The ditch was covered with earth after placing wooden planks. The
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said planks were removed after 3 hours and Narender became unconscious and later on succumbed due to suffocation. It is submitted that explicit reliance of the prosecution is upon the testimony of PW-1 Kirpa Ram, Chokidar of the village. This witness has categorically stated in the examination-in-chief, as well as, in the cross examination that he was not present when Narender went into samadhi. In the cross examination he has stated that he was not present at the spot when the game of cycle was being played. His testimony to the effect that Jagbir and Amit accused had made Narender to sit in samadhi is a hearsay evidence and the learned trial Court has wrongly relied upon his testimony regarding the occurrence.
Learned counsel for the appellant has further submitted that prosecution is required to prove the fact that Narender died un-natural death due to suffocation. The said fact can be proved only by the proving the post mortem. However, the post mortem on the body of Narender was not produced on the ground that doctor who conducted the post mortem has since expired. The benefit of non-examining of the doctor shall go to the appellant and not to the prosecution. The other two alleged eye witnesses PW-2 Mam Singh and PW-6 Narender Singh have also not supported the case of the prosecution.
Lastly, counsel for the appellant has submitted that even if the case of the prosecution is taken as a gospel truth, in that case also at the most offence under Section 304-A IPC is made out and no offence under Section 304 IPC is made out. Even according to the
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CRA No. S-1947 SB of 2003 -5-
prosecution, the appellant alongwith Narender and Amit were showing the feat on the cycle and during that process Narender has died. So, offence under Section 304 IPC is not made out.
On the other hand, learned State counsel has supported the judgment of the trial Court. However, he is fair enough to concede that PW-1 Kirpa Ram has stated that he was not present at the time of occurrence. It is submitted that however, the circumstantial evidence proves the case of the prosecution.
I have carefully considered the said submissions made by counsel for both the sides and have also gone through the record of the case.
It is settled law that prosecution has to prove its case beyond reasonable doubt. The appeal is the only stage where the evidence can be re-appreciated. Since, this is first appeal, the evidence on the file has to be re-appreciated. The star witness of the prosecution relied upon by the trial Court is PW-1 Kirpal Ram. The question arises, whether the trial Court has misread his statement, treating him as eye witness. The answer to that question is in positive. In the examination-in-chief, itself he has stated that he did not see anything regarding the occurrence of this case. Strange enough, this witness has not been declared hostile. So, his testimony on oath to the effect that at the time of occurrence he was not present goes un-rebutted. In the later part of the statement, he has stated that Jagbir accused had come in the village to show the feat on the cycle, Amit was also with Jagbir and said Amit has also died. One more person was with them.
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CRA No. S-1947 SB of 2003 -6-
He has also died. Amit used to pull the cycle in the feat. They had dug a ditch. A boy was made to sit in that ditch, but he cannot tell his name. He has since died. Jagbir and Amit accused had made that boy sit in the ditch. He has further stated that said boy was taken out at 8.00 p.m. from the ditch, but was not present at that time. Narender died in the hospital.
In the cross examination this witness has stated that he was not present at the spot when the game of cycle was being played. So, the statement made by Kirpa Ram in the examination-in-chief that appellant and Amit (since deceased) had made Narender to sit in the ditch is a hearsay evidence. He in the examination-in-chief, as well as, in the cross examination has categorically stated that at the time of occurrence, he was not present. So, it cannot be said that from his statement, it is proved that ditch was dug by the appellant and one Amit and that they have made Narender to sit in the ditch. PW-2 Mam Singh has not supported the case of the prosecution. He was declared hostile and was cross examined by the prosecution, but he has not supported the case of the prosecution. PW-3 Pirthi is a formal witness, who has simply stated that he obtained the copy of post mortem from the hospital. PW-4 SI Ram Pal and PW-5 Sarwan Kumar draftsman are also formal witnesses of the prosecution. PW-6 Narender Singh alleged eye witness has also not supported the case of the prosecution. He has not named any of the accused. He was declared hostile. In the cross examination also, he has not supported
the case of the prosecution. PW-7 SI Hem Chander is the
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Investigating Officer of this case and has proved the investigation. PW-8 HC Sunil Dutt is also a formal witness. In the statement under Section 313 Cr.P.C. the accused has simply denied the occurrence. So, by analysing the whole of the evidence, none of the witness has stated that in his presence the accused made Narender deceased, to sit in the ditch. Otherwise also, the evidence is missing to the effect that Narender died due to suffocation while he was buried in the ditch as post mortem has not been proved by the doctor. Obviously, the doctor has died and on that account, the post mortem is not proved in accordance with law. The learned trial Court, inspite of that has convicted the accused in respect of offence under Section 304 IPC.
This approach of the trial Court cannot be accepted. The appellant cannot be convicted solely on the basis of statement of PW1 Kirpa Ram, who is neither the eye witness, nor has deposed anything about the occurrence except that a cycle feat was organised in the village. His testimony to the effect that Amit and Jagbir made Narender to sit in the ditch is a hearsay evidence. This witness in the cross examination has again stated that he was not present at the time of occurrence. There is no other evidence on the file, who has actually seen the appellant and Amit to made the Narender to sit in the ditch and has covered the ditch by wooden planks and earth. So, in these circumstances, the evidence falls short of proving the case of Section 304 IPC against the appellant.
So, in view of the above discussion, the appeal is accepted and the judgment of the trial Court stands set aside and the accused-
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CRA No. S-1947 SB of 2003 -8-
appellant stands acquitted by giving him the benefit of doubt.
A copy of the judgment be sent to the trial Court for
compliance.
( K.C. Puri ) 19.5.2014 Judge chugh
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3 issues framed by the court
Whether the accusation under Section 304 IPC is sustainable when the only eye-witness testimony is hearsay and lacks corroboration by post-mortem evidence.
Whether circumstantial evidence in the absence of direct proof of intent and cause of death can sustain a conviction for culpable homicide not amounting to murder.
Whether the conviction should be set aside and the appellant acquitted in view of insufficient evidence to prove the case beyond reasonable doubt.
1 provisions across 1 enactments
Jagbir
State of Haryana
K.C. Puri
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
