Punjab-Haryana High Court
Pehlu vs State Of Haryana on 22 February, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
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(1) Criminal Appeal No.D-211-DB of 2007
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Date of decision:22.2.2013
Pehlu
...Appellant
v.
State of Haryana
...Respondent
....
(2) Criminal Appeal No.D-297-DB of 2009
.....
Dharambir alias Lambu
...Appellant
v.
State of Haryana
...Respondent
....
Coram: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
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Present: Mr. Sarfraj Hussain, Advocate for the appellants.
Mr. Kshitij Sharma, Assistant Advocate General, Haryana for
the respondent-State.
......
Inderjit Singh, J.
This judgment will dispose of above mentioned two appeals i.e. Criminal Appeal No.D-211-DB of 2007 filed by Pehlu and Criminal Appeal No.D-297-DB of 2009 filed by Dharambir alias Lambu as these arise out of Cr. Appeal Nos.D-211-DB of 2007 etc. [2] the same judgment of conviction and order of sentence dated 31.10.2006/2.11.2006 passed by Sessions Judge, Gurgaon.
These two appeals have been filed against the judgment of conviction and order of sentence dated 31.10.2006/2.11.2006 passed by Sessions Judge, Gurgaon, whereby both the accused-appellants have been held guilty for the offences under Sections 302 and 201 read with Section 34 of the Indian Penal Code (hereinafter referred to as `IPC') and sentenced to undergo imprisonment for life and to pay a fine of `5,000/- each and in default of payment of fine to further undergo simple imprisonment for six months each for the offence under Section 302 read with Section 34 IPC. They have also been sentenced to undergo rigorous imprisonment for five years and to pay a fine of `2,500/- each and in default of payment of fine to further undergo simple imprisonment for two months each.
The brief facts of the prosecution case are that the FIR in the present case has been registered on the statement of Sher Mohammad complainant, who got his statement recorded to ASI Jagdish Chand, Police Station, Tauru on 6.10.2004 at about 4.05 p.m. The complainant in his statement stated that he had sent his son Shamim Ahmed alias Shammi at about 8.00 p.m. on 2.10.2004 to his Grocery shop to hand over meals for his another son named Arshad, but he did not return on that night. In the morning at 6.00 a.m., they started searching Shammi and inquired from Maulvi Ramzan where Shammi used to study but he said that Shammi had not come there. Then one of the students of said Madarsa named Sehraj met the complainant and disclosed that during the night at about 8.30 p.m. he had seen Shammi with Pehlu son of Sultan Meo, resident of Khori Kalan Cr. Appeal Nos.D-211-DB of 2007 etc. [3] near the Mosque. On 6.10.2004, the complainant and others in the village came to know from a Tractor driver that dead body of a boy was lying in the hillock of Village Khori. Then the complainant along with others went there and they found dead body of his son Shammi aged 11 years in the earth mount in a ditch, which was in decomposed state. He identified the dead body from the clothes and also from the bandage on his left hand. The complainant also stated that he was fully confident that Pehlu had hand in the murder of his son. After recording the statement, `Ruqa' was sent to the Police Station, on the basis of which formal FIR was registered.
Then the Investigating Officer ASI Jagdish Chand went to the spot along with the complainant. A photographer, dog squad and crime team were summoned. No fingerprints were available at the spot. Rough site plan was prepared. Inquest report Ex.PJ was prepared. The dead body was sent for post-mortem examination. Statements of witnesses were recorded. On 11.10.2004, SI Satender Kumar took over the investigation and arrested accused Pehlu, Dharambir alias Lambu and Gopi-who was juvenile. On interrogation, Pehlu suffered disclosure statement regarding concealing of one bed sheet and in pursuance thereof he got recovered the same. Dharambir alias Lambu on interrogation, suffered a disclosure statement that he had kept concealed a pair of `chappal' under bushes and he got recovered the same in pursuance of his disclosure statement. Accused- Gopi was also interrogated and he got recovered one stone from the bushes. After necessary investigation, challan was presented against accused Pehlu and Dharambir alias Lambu, whereas accused-Gopi, who was juvenile, was tried before the Juvenile Justice Board.
Cr. Appeal Nos.D-211-DB of 2007 etc. [4] On presentation of challan, the trial Court finding prima facie case against accused-appellants Pehlu and Dharambir alias Lambu, framed charges for the offences under Sections 302 and 201 read with Section 34 IPC, to which the accused-appellants pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Dr. Vijay Pal Khanagwal, who mainly deposed regarding conducting post-mortem examination on the dead body of Shamim Ahmed alias Shammi aged about 11 years and found the following injuries:-
"1. A depressed fracture of the left parietal bone of size 6.5 x 2 cm situated obliquely at a level 5 cm away from midline and 3.5 cm posterior to the left limb of coronal suture. The fragment of the bone was in driven towards the cranial cavity. There were multiple (3) radiations of varying sizes starting from the above depressed fracture. These were (i) A linear radiation going anteriorly from its front portion for 2 cm. (ii) A linear radiation going laterally from the lateral extremity of depressed fracture for 1 cm and then it extended anteriorly for 6 cms. (iii) A linear radiation going backwards from the posterior extremity of the depressed fracture for four cms. Infiltration of blood was seen along the radiating fracture lines and the depressed fracture of the vault of skull. The cranial satures were loosened more so the left limb of the coronal suture which also showed infiltration of blood along the spicules. On further dissection of the skull the brain matter was found to be putrefied, liquefied haemmorrhagic (bloody) paste like and the Cr. Appeal Nos.D-211-DB of 2007 etc. [5] portion of skull immediately corresponding to the depressed portion of the parietal bone was found to be directed towards the cranial cavity for 3-5 mm with infiltration of blood evident around the depressed portion of the bone.
2. The remnants of soft tissues around front and sides of the neck, showed ecchymosis.
3. There were diffuse reddish contusions of varying sizes from 5 x 3 cms. to 9 x 6 cms. present all over the front of abdomen, pelvic region and the upper portion of perennial area including the penis and scrotum. On dissection, the soft tissues and muscles of the abdominal, pelvic and perineum showed infiltration of blood and all the contents of the abdominal and pelvic cavities were also found contused with irregular tears of the whole of the liver and urinary bladder. Dark clotted blood was present in the abdominal and pelvic cavities."
As per opinion of the doctor, all the injuries were ante-mortem in nature. These were caused by hard and blunt object(s). All the injuries individually as well as collectively were sufficient to cause death in the ordinary course of nature. All these injuries were homicidal in manner. In the opinion of the doctor, the cause of death was the injuries described over the head, neck and abdominal regions of the body which were ante-mortem, homicidal, caused by hard and blunt objects and were sufficient to cause death in ordinary course of nature. The death in this case was instantaneous.
Cr. Appeal Nos.D-211-DB of 2007 etc. [6] PW-2 Tarsem Lal, Tehsildar mainly deposed that on 23.12.2004, the Investigating Officer filed application Ex.PC before him for identification of a pair of `chappal' belonging to the deceased. In his presence, that pair of `chappal' was identified by father of the deceased to be that of the deceased. PW-3 ASI Ved Pal deposed regarding recording of FIR Ex.PD/1 on receipt of `Ruqa' Ex.PD. PW-4 Basant Sharma, Photographer mainly deposed regarding photographs Exs.P.8 and P.9 and negatives Exs.P.10 and P.11. PW-5 HC Raj Kumar mainly deposed regarding getting conducted post-mortem examination on the dead body. PW-6 Ashok Kumar, Draftsman mainly deposed regarding preparing scaled site plan Ex.PF. PW-7 Sher Mohammad is the complainant, who deposed as per prosecution version. PW-8 Arshad is the son of the complainant. He deposed that on 2.10.2004, his brother Shamim Ahmed came to his shop at about 8.30 p.m. with meals for him. After leaving the food with him, he spotted him negotiating a turning near the Masjid. It was raining heavily on that evening. It came to his notice in the morning that Shamim had not returned home. They had suspicion on Pehlu, Dharambir and Gopi. PW-9 Sabbir is the witness of last seen. He stated that on 2.10.2004, after having offering `Namaj' he was standing in front of the Masjid at about 8.30 p.m., he spotted Shammi in the company of Pehlu, Dharambir and Gopi. He was familiar with their identity as they reside in that very village. They were proceeding on the Tauru road towards Bhiwani. He inquired from Pehlu where exactly they were going. He told that they were moving there only. Shammi was also with them at that time. PW-10 Sehraj minor child had not supported the prosecution version and was declared hostile. PW-11 Dr. Cr. Appeal Nos.D-211-DB of 2007 etc. [7] Satender Verma, Medical Officer mainly deposed regarding medico-legal examination of Dharambir on 12.10.2004 and found the following injury on his person:-
"1. A 4 x 4 mm wound of about 3 mm depth present over the left palm. Tenderness was present around the wound. A whitish brown crust was present over the wound. No other injury was seen."
The nature of injury was simple. The probable duration of injury was within one week. PW-12 ASI Jagdish Chand mainly deposed regarding partly investigation conducted by him. PW-13 ASI Mahipal was with the Police party headed by SI Satender Kumar, who arrested the accused. PW- 14 SI Satender Kumar mainly deposed regarding arrest of the accused and disclosure statements and recoveries in pursuance of the disclosure statements. PW-15 Islam deposed that he was associated with the Police party on 11.10.2004, when he was present at Bus Adda of Khori. He deposed regarding the arrest of accused Pehlu, Dharambir and Gopi and regarding disclosure statements and recoveries made in pursuance of the disclosure statements. The Public Prosecutor closed the prosecution evidence.
At the close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and were confronted with the evidence of the prosecution. They denied the correctness of the evidence and pleaded themselves as innocent. Accused-appellants further stated that they are innocent and had been falsely implicated in this case.
In defence, no evidence was produced.
Cr. Appeal Nos.D-211-DB of 2007 etc. [8] After going through the evidence and material produced on record, the learned trial Court convicted and sentenced the accused- appellants for the offences as mentioned above.
At the time of arguments, learned counsel for the appellants argued that this case is based on circumstantial evidence but in the present case there is no motive for causing the occurrence. Learned counsel for the appellants next argued that the boy went missing on 2.10.2004 but no FIR or missing report was lodged with the Police till the finding of the dead body on 6.10.2004. He further argued that if the complainant was told that Shamim Ahmed alias Shammi was lastly seen in the company of Pehlu by Sehraj then only course for him was to go to the house of Pehlu or to report the matter to the Police but no such action was taken immediately. Moreover, Sehraj had not supported the prosecution version. He further argued that the only evidence in the present case is regarding last seen as deposed by Sehraj but his statement also cannot be believed as this witness had been falsely introduced by the Investigating Officer. Learned counsel for the appellants further argued that the recovery of `chappal' etc. cannot be connected with the crime and it does not point towards the guilt of the accused. He argued that the chain of circumstances is incomplete. There are missing links in the present case, therefore, the appeals of the appellants be allowed.
On the other hand, learned Assistant Advocate General, Haryana appearing for the respondent-State argued that the case of the prosecution has been duly proved. The last seen evidence as well as recovery of `chappal' of the deceased, which have been duly identified, the Cr. Appeal Nos.D-211-DB of 2007 etc. [9] prosecution has proved the guilt of the accused. Therefore, he argued that there being no merit in the appeals, the same should be dismissed.
We have heard learned counsel for the appellants and learned Assistant Advocate General, Haryana appearing for the respondent-State and with their assistance have gone through the evidence on record minutely and carefully.
From the record, we find merit in the arguments of the learned counsel for the appellants. It is a case of circumstantial evidence and in the case of circumstantial evidence, chain of circumstances must be complete and there should not be any missing link. The circumstances if put together, it should form a complete chain pointing towards the guilt of the accused only and none else. In the present case, boy Shamim Ahmed alias Shammi aged about 11 years went missing on 2.10.2004 but no report or FIR was lodged with the Police till the recovery of the dead body on 6.10.2004. There is no cogent explanation as to why the matter was not reported to the Police. As per FIR, the complainant was informed by Sehraj that he had seen Shamim with Pehlu and this information was given in the morning of 3.10.2004. Sehraj had not given the names of Dharambir and Gopi accused that they were also accompanying Pehlu and Shamim. If the complainant received the information on the morning of 3.10.2004, then the natural course for him was to visit the house of Pehlu to inquire about the child or to report the matter to the Police but neither he went to the house of Pehlu- appellant nor he lodged any report with the Police. Otherwise also, Sehraj had appeared in this case as PW-10 and did not support the prosecution version. Therefore, this version that Shamim was last seen in the company Cr. Appeal Nos.D-211-DB of 2007 etc. [10] of appellant-Pehlu has not been proved on the record. The other witness Sabbir PW-9 is also witness of last seen. He stated that he had seen Shamim in the company of Pehlu, Dharambir and Gopi at about 8.30 p.m. on 2.10.2004 but he had not given information to the Police or to the family of Shamim. In his cross-examination, he stated that he had gone to his original village. He disclosed the above information to the Police for the first time only on 6.10.2004. He had also not disclosed that fact to anyone in the village prior to 6.10.2004 as it was on that day only when death of child (deceased) came to his notice. PW-7 Sher Mohammad-complainant stated that on the third day one Sabbir informed him that he had also seen his son in the company of Pehlu and Dharambir at about 8.45 p.m. on the relevant date. He specifically stated in examination-in-chief that he gave this information to him on the third day of his son having gone missing, which means that before recording the FIR, the complainant was informed but there was no mention of the name of appellant Dharambir in the FIR. If Sabbir had informed the complainant earlier to finding of the dead body, then this fact might have been given in the FIR. Otherwise also, this statement is contradictory to the statement of Sabbir, who states that he for the first time gave the information to the Police on 6.10.2004. Further more, Sabbir PW-9 says that he asked them where they were going but Pehlu stated that they were moving there only. On the other hand, there is evidence that on that day there was heavy rain. If that was the case, then how these persons can move in the rain for walking purposes only. Therefore, no reliance can be placed on the statement of PW-9 Sabbir.
Further, we find that it is a case of circumstantial evidence and Cr. Appeal Nos.D-211-DB of 2007 etc. [11] motive is significant in such type of cases but in the present case no motive has been shown for committing the crime. Further, we find the only incriminating evidence is regarding recovery of `chappal', which was got identified from complainant PW-7 Sher Mohammad in the presence of Tehsildar, which as per prosecution version, were got recovered in pursuance of the disclosure statement of appellant-Pehlu. PW-7 Sher Mohammad in cross-examination stated that this `chappal' actually was of him and is of 8 size which was being worn by his son. This cross- examination also creates doubt regarding the recovery of the `chappal' from the accused. Otherwise also, such type of `chappals' are easily available in the market. Thirdly, there was no purpose for the accused to keep or conceal the `chappal' of the deceased. Fourthly, the deceased was a child of 11 years and the `chappal' was of 8 size belonging to complainant Sher Mohammad. It looks improbable that a child of such young age would wear the `chappal' of his father.
Therefore, from the evidence on record, we find that the chain of circumstances is not complete. There are so many missing links. The circumstances, if put together, do not point towards the guilt of the accused. Therefore, a reasonable doubt exists in the prosecution case and benefit of doubt is to go to the accused. By giving benefit of doubt to the accused- appellants, both the appellants are held not guilty.
Finding merit in the appeals, the same are allowed. The impugned judgment of conviction and order of sentence passed by the learned trial Court are set aside and the appellants are acquitted of all the charges against them. As they are in custody, they be released forthwith, if Cr. Appeal Nos.D-211-DB of 2007 etc. [12] not required in any other case.
Copy of this judgment be placed on the file of the connected appeal.
(Jasbir Singh) (Inderjit Singh)
Judge Judge
February 22, 2013.
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