M. Jeyapaul, J.

Introduction:

1. There are totally five accused namely Sudo Mandal, Radha Mandal, Dharminder Mandal, Rajiya Mandal and Sambodh Mandal in this case. Though final report was laid as against all the aforesaid accused under Section 173 of the Code of Criminal Procedure, accused Sudo Mandal alone was apprehended first in point of time. He stood trial for the offence under Section 302 of the Indian Penal Code and was convicted thereunder and was sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- and in default to undergo a further period of six months rigorous imprisonment. After the aforesaid accused was convicted by the trial Court, accused Dharminder Mandal, who was declared as proclaimed offender, was apprehended. He faced trial for the offence under Section 302 read with Section 34 of the Indian Penal Code and was convicted thereunder and was sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-, in default to undergo a further period of two years. The other three accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal could not be prosecuted as they have absconded and were already declared as proclaimed offenders.

2. Accused Sudo Mandal, who was convicted first in point of time for offence under Section 302 of the Indian Penal Code, has preferred Criminal Appeal No. D-638-DB of 2007 and accused Dharminder Mandal, who was convicted later under Section 302 read with Section 34 of the Indian Penal Code, has preferred Criminal Appeal No. D-9-DB of 2010.

3. Six witnesses were examined in Sessions Case No. 21 of 28.04.2006 on the file of the Sessions Judge, Bathinda, which culminated in Criminal Appeal No. D-638-DB of 2007. Except PW-1 Dr. Jaspreet Singh, Ex.EMO and PW-5 Dr. Rahul Bansal, in that case, the other witnesses were examined in Sessions Case No. 52 of 01.10.2008 on the file of the Sessions Judge, Bathinda, which culminated in Criminal Appeal No. D-9-DB of 2010. As both the appeals have originated from the very same occurrence and separate trial was conducted with the very same set of witnesses except two witnesses, we find that common judgment would serve the purpose and meet the ends of justice.

Case in brief of the Prosecution:

4. The case of the prosecution as unfolded by the witnesses examined on its side reads as follows :-

(a) PW-3 Abdul Kalam in Sessions Case No. 21 of 28.04.2006 who was examined as PW-2 in Sessions Case No. 52 of 01.10.2008 was the brother of the deceased Mohd. Haleem alias Mohd. Haleef, who was working as labourer at Adesh Institute of Medical Science, Bathinda under PW-4 Mohd. Istakh in Sessions Case No. 21 of 28.04.2006 who was examined as PW-3 in Sessions Case No. 52 of 01.10.2008. Both were living in separate huts in Adesh Institute of Medical Sciences meant for labourers.

(b) On 05.10.2005 at about 1.30 PM Abdul Kalam, Mohd. Istakh and Mohd. Haleem were chatting near the hut of Mohd. Haleem. Thereafter Mohd. Haleem proceeded to a tap located near by to fetch water. Accused Dharminder Mandal was washing his clothes at the tap. Mohd. Haleem asked accused Dharminder Mandal to oblige him to take water from the tap. But accused Dharminder Mandal refused to oblige him. Accused Sudo Mandal delivered a blow on the head of Mohd. Haleem with a silver scale. Accused Radha Mandal having emerged from the back side delivered a blow on the head of Mohd. Haleem with wooden log. Accused Sambodh Mandal delivered a blow on Mohd. Haleem with iron bar and accused Rajiya Mandal gave brick bat blow on Mohd. Haleem. Mohd. Haleem fell down to the ground. All the accused ran away with the weapons used by them to attack Mohd. Haleem. He was taken to Adesh Hospital. But Mohd. Istakh and Abdul Kalam went away to arrange for money and returned only on 09.10.2005. They came to know that Mohd. Haleem had expired.

(c) PW-1 Dr. Jaspreet Singh, Ex. EMO in Sessions Case No. 21 of 28.04.2006 admitted Mohd. Haleem with head injury for treatment in Adesh Institute and Medical Science, Bathinda at about 1.50 PM on 05.10.2005. He found an injury measuring 3cm x 1cm on the scalp in the parietal area. He sent information Ex.PA to the Bathinda Police Station.

(d) Assistant Sub Inspector Hardam Singh having received intimation about the admission of Mohd. Haleem at Adesh Hospital Bathinda, rushed to the hospital on 06.10.2005. He found that the patient Mohd. Haleem was on ventilator support and was unfit to give statement. He made an attempt on 07.10.2005 and also on 08.10.2005 to record the statement of Mohd. Haleem. But the doctors declared him unfit to give statement.

(e) On 09.10.2005 Dr. Jaspreet Singh passed on information Ex.PE about the death of Mohd. Haleem to Cantt. Bathinda Police Station. PW-6 ASI Hardam Singh proceeded to the hospital for investigation. At Bhucho Khurd bus stop Abdul Kalam met him and gave statement Ex.PL with regard to the occurrence. A formal First Information Report was registered by ASI Gurjeet Singh.

(f) ASI Hardam Singh conducted inquest proceedings on the dead body of Mohd. Haleem and prepared inquest report. On 10.10.2005 he conducted raid of the house of the accused. But none of the accused was available. Accused Sudo Mandal, who was found at Bucho Khurd, was arrested on 11.10.2005. He was produced before Illaqa Magistrate for judicial remand. Thereafter police custody was obtained and accused Sudo Mandal was interrogated on 13.10.2005. On the basis of the disclosure statement given by accused Sudo Mandal, a silver scale was recovered from the bushes at the back side of Vahia Resort. The silver scale was found blood stained. He also prepared rough site plan reflecting the place of recovery.

(g) Dr. Kulwant Singh Brar conducted post-mortem examination on the dead body of Mohd. Haleem on 09.10.2005. He found the following injuries on the dead body :-

"1. Stitched wound having 8 stitches on left parietal region up to left ear 8-1/2 cm long on dissection underline bone found fractured and haematoma was present on the brain matter.

2. Stitched wound having 4 stitches, 4-1/2cm long on top of head on dissection underlying bone found fractured and haematoma was present on brain matter.

3. Stitched wound having 3 stitches 2-1/2 cm long on right occipital region. On dissection underline bone found fractured and haematoma was present on brain matter."

(h) He opined that the deceased had died due to hemorrhage and shock as a result of head injury, which was ante-mortem in nature and sufficient to cause death in the ordinary course of nature. After completion of investigation, final report against the accused was filed.

Statements under Section 313 Cr.P.C.

5. Both the accused pleaded that they were innocent but a false case was foisted upon them.

Verdict of the Trial Court.

6. The trial Court having relied upon the ocular testimony of Abdul Kalam and Mohd. Istakh in the back ground of the medical evidence and recovery made from the accused Sudo Mandal recorded conviction against the accused.

Submissions made by Mr. Sanjeev Sharma, and Dhirinder Chopra, learned counsel for the appellants:

7. Both the eye witnesses namely Abdul Kalam and Mohd. Istakh have been planted in this case. Their presence at the scene of occurrence is quite doubtful. The injuries sustained by Mohd. Haleem as spoken to by the ocular witnesses do not match with the medical evidence. Dr. Jaspreet Singh, who admitted Mohd. Haleem in the hospital for treatment has accounted only one injury, whereas the alleged eye witnesses have spoken to as many as four injuries on the person of the deceased. The delay of four days in lodging the first information report was not explained by the prosecution. The blood stain allegedly found on the silver scale was not sent for chemical examination. No Forensic Science Laboratory report also was received with respect to the blood stains on the wearing apparels of the deceased recovered from his dead body. No independent witness was also joined to establish the recovery. The other weapons alleged to have been used by the other accused were also not recovered by the investigating agency. Therefore, it is their submissions that the prosecution failed to establish that the accused committed murder of Mohd. Haleem.

Submissions made by the learned Additional Advocate General for the respondent-State:

8. The eye witness Mohd. Istakh had subscribed his signatures in the medical records which came into existence on 05.10.2005. Therefore, his presence at the scene of occurrence cannot be doubted by the Court. The delay in lodging the first information report by itself would not vitiate the trial proceedings. The recovery of material objects at the instance of the accused and the medical evidence would go to establish that the accused committed murder as found by the trial Court. The evidence of Dr. Jaspreet Singh would establish that Mohd. Haleem aged 35 years was admitted to Adesh Institute and Medical Science, Bathinda for treatment on 05.10.2005 with a head injury. Dr. Rahul Bansal has spoken to the intensive treatment given to Mohd. Haleem, who was admitted as patient in a very critical condition. Mohd. Haleem was put on ventilator support. The health condition of Mohd. Haleem did not improve in spite of the best efforts taken by the doctors to save his life. The death intimation was passed on by the duty doctor to Cantt. Bathinda Police Station. Dr. Kulwant Singh Brar had conducted post-mortem examination on the dead body of Mohd. Haleem on 09.10.2005. He has found head injury on the person of Mohd. Haleem. He has categorically opined that Mohd. Haleem had died due to haemorrhage and shock as a result of head injury, which was ante-mortem in nature and was sufficient to cause his death in the ordinary course of nature. The above medical evidence would establish that Mohd. Haleem died due to homicidal violence. Therefore, it is her submission that the trial Court has rightly returned the verdict of conviction against the accused.

Discussion:-

9. The prosecution has projected two ocular witnesses namely Abdul Kalam and Mohd. Istakh. Abdul Kalam was the brother of the deceased Mohd. Haleem. Mohd. Istakh was the contractor, who engaged Mohd. Haleem in the construction work at Adesh Institute of Medical Science, Bathinda.

10. We will have to test whether those two witnesses were actually eye witnesses to the occurrence as projected by the prosecution. A vehement attack was made by the learned counsel appearing for the appellants that those two witnesses could not have been present at the scene of occurrence. Let us first take up the evidence of Abdul Kalam. It is his evidence that he came down from Bombay to meet his brother Mohd. Haleem only on 04.10.2005 for the first time. Never had he come down to meet his brother prior thereto. He would depose that accused Sudo Mandal gave a blow on the head of his brother Mohd. Haleem with silver scale. Accused Radha Mandal emerging from the back side delivered an attack on the head of his brother with wooden log. Accused Sambodh Mandal delivered a blow on the person of his brother with iron bar and accused Rajiya Mandal delivered brick bat blow on the person of his brother.

11. As rightly pointed out by the learned counsel appearing for the appellants, the overt acts distributed to four accused did not match with the medical evidence available on record. It is quite relevant to refer to the evidence of Dr. Jaspreet Singh, who admitted the injured Mohd. Haleem to Adesh Institute of Medical Science, Bathinda for treatment. He has categorically noted down on medical examination of injured Mohd. Haleem that the latter sustained only one injury measuring 3 cm x 1 cm on the scalp of the parietal area. No other injury was noted down by Dr. Jaspreet Singh. The bed head ticket produced by Dr. Rahul Bansal, would go to establish that there was only one injury found on the parietal area of the head of Mohd. Haleem.

12. Dr. Kulwant Singh Brar, who conducted postmortem examination had in fact noted down the stitched wounds found on the head of the deceased. A comparative study of the injuries described by the doctor, who admitted Mohd. Haleem for treatment, the doctor, who performed operation on Mohd. Haleem and the doctor, who conducted post-mortem examination brings to light that there was only one injury sustained by Mohd. Haleem and two other wounds were created during the course of operation and the same also were stitched alongwith the wound actually sustained by Mohd. Haleem in the occurrence. But quite unfortunately Abdul Kalam has come out with a totally unbelievable version that four accused having been armed with silver scale, wooden log, iron bar and brick bat attacked Mohd. Haleem and caused four different injuries. Such a distribution of overt acts quite against the medical evidence would go to establish that Abdul Kalam, who had not in fact witnessed the occurrence, has been planted by the investigating agency.

13. Going deeper into the testimony of Abdul Kalam, we further find that he had allegedly travelled to the State of West Bengal covering about 1700 Kms spending two days and two nights to mobilize money, leaving behind the injured Mohd. Haleem, who had already slipped into Coma in the hospital itself. If two days and two nights were required to reach his native place from Bathinda, he could not have got back at about 10.45 AM on 09.10.2005 to lodge the complaint. It is to be noted that he has come out with a different version during the course of cross examination that he did not in fact go to his village for arranging money but he arranged money from the persons working near Bhucho Khurd hailing from his area. He could not recollect from whom he arranged the money. He could not also locate the exact place from where the money was arranged. Therefore, his story that he proceeded to his native village to mobilize money leaving behind his brother at the hospital does not inspire confidence.

14. The occurrence had unfolded on 5.10.2005 itself but the first information report was lodged on 09.10.2005 only after Mohd. Haleem had died. Mohd. Basheer, Mohd. Nazir and Mohd. Mukhtar were allegedly present at the hospital as attendants of injured Mohd. Haleem. Abdul Kalam would say that he had not shared the information with regard to the attack launched by the accused on Mohd. Haleem even to those attendants. He had not passed on such information to the police officials, who were at the gate of the hospital. Such a conduct of Abdul Kalam was found to be very abnormal. For all these reasons we find that Abdul Kalam could not have been an eye witness to the occurrence. He was in fact implanted by the investigating agency just to strengthen the case. Therefore, we have no hesitation to reject the testimony of Abdul Kalam, which does not inspire confidence.

15. Let us now take up the evidence of other ocular testimony of Mohd. Istakh. Admittedly, he was the contractor, who employed Mohd. Haleem in the construction work at Adesh Institute of Medical Science, Bathinda. But surprisingly he has come out with a case that he also resided in one of the huts put up for the labourers at Adesh Institute of Medical Science, Bathinda. Mohd. Istakh would also depose that accused Sudo Mandal armed with a silver scale, accused Rajiya Mandal armed with brick bat, accused Radha Mandal armed with wooden log and accused Sambodh Mandal armed with iron bar attacked on the head of Mohd. Haleem. It is to be noted that Mohd. Istakh had not attributed any overt act to accused Dharminder Mandal. On a careful perusal of the cross-examination of his evidence, we find that his evidence does not pass the test of trustworthiness.

16. It is the version of Mohd. Istakh that he also accompanied Abdul Kalam to mobilize funds from his village. But he comes out with a contradictory story that he had not gone alongwith Abdul Kalam to West Bengal but he had gone towards Muktsar and Delhi side to arrange money. It is to be noted that Muktsar is located in one direction and Delhi is located towards the other direction He could not recollect how much money was arranged and from whom the money was arranged. After all a worker under his supervision had sustained injuries in the occurrence, but he had not chosen to alert the police immediately after the occurrence. True it is that his name figures in the bed head ticket but quite unfortunately he has given some instructions to the doctors, who started treating Mohd. Haleem that no criminal case be launched in this matter. He being the contractor might have been intimated of the occurrence and he would have descended on the hospital. But the evidence of Dr. Jaspreet Singh would go to establish that it was only Bashir, Rehman and Gafar, who had brought Mohd. Haleem to the hospital for treatment. Abdul Kalam and Mohd. Istakh had mentioned three different attendants of the injured. Had Abdul Kalam and Mohd. Istakh had been eye witnesses and accompanied the injured to the hospital at least one of their names would have been referred in the Medical Records as a person who brought the injured to the hospital. There was no reason for the doctor, who admitted the patient to the hospital to ignore the name of very brother of the patient while recording the name of the person who brought the patient to the hospital. For all these reasons, we find that Mohd. Istakh also was not an eye witness to the occurrence. He is found to be an untrustworthy witness. Therefore his evidence cannot be safely relied upon.

17. There is a whopping delay of four days in lodging the First Information Report pertaining to the occurrence which took place on 05.10.2005 at 1.30 PM. A formal First Information Report has been registered only on 9.10.2005 at 12.45 PM.Of course every delay in lodging the First Information Report would not vitiate the trial of the case but an inordinate delay will have to be necessarily explained by the investigating agency.A very funny explanation given by Abdul Kalam and Mohd. Istakh that they had been to West Bengal to collect money and as a result of which a complaint could not be lodged in time is found to be totally unconvincing. The information as to the admission of Mohd. Haleem with head injury in the hospital had been intimated on 06.10.2005 itself by Dr. Jaspreet Singh. It appears that the Investigating Officer was all along waiting for the death of the injured just to register a case as against the perpetrators of the crime. It is his admission that there were some attendants looking after the injured in the hospital. He comes out with a lame excuse that those attendants were not present at the time when he visited the hospital. It appears that he was very much concerned with the dying declaration to be recorded from the injured, the moment he regained his consciousness. He was not cared about the registration of the case and collection of materials from the scene of occurrence. Very surprisingly he had not chosen to proceed to the scene of occurrence.

18. In the above facts and circumstances, we have no hesitation to hold that four days time had been utilised by investigating agency only to fix eye witnesses to the occurrence. The un-explained delay in the above circumstances throws a doubt on the ocular version projected by the prosecution.

19. The eye witnesses have come out with a version that four types of weapons were used by the respective accused, but only one weapon namely silver scale was allegedly recovered at the instance of accused Sudo Mandal. Even such recovery does not advance the case of the prosecution inasmuch as Forensic Science Laboratory report was not available to establish the blood stain allegedly found on the silver scale. A damaging version is found in the testimony of the doctor, who conducted post mortem examination. He has categorically opined that the injuries found on the deceased would not have been caused by such a minor weapon. Even the wearing apparels of the deceased recovered from the dead body after the post-mortem examination were not sent for examination by the forensic science expert. Therefore the recovery of the material objects does not in any way incriminate the accused in the crime of murder.

20. As far as accused Dharminder Mandal is concerned, no role has been attributed by any of the witnesses. The trial Court has recorded conviction as against these appellants without proper evaluation of the materials on record. As no case of murder was made out against these appellants they are entitled to acquittal.

Conclusion

21. We find that the prosecution has miserably failed to establish its case against the accused/appellants beyond reasonable doubt. Therefore, the judgment of conviction recorded under Section 302 of the Indian Penal Code against accused Sudo Mandal and the sentence imposed thereunder and the conviction of accused Dharminder Mandal for offence under Section 302 read with Section 34 of the Indian Penal Code and the sentence imposed thereunder are set aside. Both the appeals are allowed. Appellants Sudo Mandal @ Diwarak Mandal and Dharminder Mandal are directed to set at liberty forthwith, if not required in any other case.

Quashing of pending proceedings against other accused:-

22. While disposing of these two appeals, we are very much concerned about the absconding village rustic accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal, who had successfully evaded the dragnet of the police. The Investigating agency has put up a case implanting eye witnesses as against all the accused. Both the eye witnesses projected by the prosecution had not passed the test of trustworthiness. Their own showing would go to establish without any pale of doubt that they could not have witnessed the occurrence. The other materials produced by the prosecution also did not advance the case of the prosecution any further. The above facts and circumstances have persuaded us to come to a definite conclusion that the accused in this case were not the perpetrators of crime of murder as alleged by the prosecution. The same set of materials would be produced before the Sessions Court on production of the remaining three accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal. After all the poor innocent labourers had migrated to other places to eke out their livelihood. The appellants herein had in fact suffered imprisonment for such a long time leaving behind their kith and kin, who might have been in dire need of financial support and help from them. Such an unpleasant situation shall not be created for the other three accused against whom also there is no material on record to fasten them with the charge of murder. We seriously pondered over rendering judicial succour to those faceless and voiceless accused who had taken to heals and hidden themselves apprehending the wrath of criminal proceedings for the heinous crime of murder. We are convinced that our judicial arm is not so crippled as to betray the vague hope of the hopeless.

23. We are conscious of the fact situation that those three accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal had absconded and were declared as proclaimed offenders. They had not faced the trial, but when we find that no case could be made out as against them also with the very same rickety materials, those accused also will have to be relieved of the impending pain of facing the prosecution for murder. Section 482 of the Code of Criminal Procedure reads as follows :-

"Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

24. The above provisions recognize the inherent powers of the Court to do real and substantial justice, preventing the abuse of the process of the Court. The statutory recognition of the inherent jurisdiction of the criminal Court indicates that there is a power for the criminal Courts to make such an order as may be necessary to meet the ends of justice. We are conscious of the fact that the powers under Section 482 of the Code of Criminal Procedure are to be exercised very sparingly and in exceptional cases where abuse of the process of the Court would result in serious miscarriage of justice. The inherent powers of the Court should not be exercised to stifle legitimate prosecution. But at any rate the settled position is that this Court has the jurisdiction to quash the entire criminal proceedings to prevent the abuse of the process of the Court in order to secure the ends of justice. In our considered view the same inherent powers can be exercised when this Court finds that the innocent accused, who had absconded would simply face the empty formality of trial with the very same unbelievable and untrustworthy evidence, which would ultimately lead to their acquittal. Bringing the absconding accused to face the trial in this case in the above facts and circumstances would amount to abuse of the process of the Court. To secure the ends of justice, we hereby quash the entire proceedings as against the absconding accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal pending before Judicial Magistrate Ist Class,Bathinda/Sessions Judge, Bathinda, as no useful purpose will be served even if they are procured and ordered to face the trial in this case.