Punjab-Haryana High Court
Khem Chand @ Khema vs State Of Haryana on 20 November, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
CRA-D-815-DB of 2006 & others 1
PUNJAB & HARYANA HARYANA HIGH COURT AT
CHANDIGARH
CRA-D-815-DB of 2006
Date of decision:20.11.2012
Khem Chand @ Khema ...Appellant
Versus
State of Haryana
...Respondent(s)
CRA-D-846-DB of 2006
Ajit ...Appellant
Versus
State of Haryana
...Respondent(s)
CRA-D-947-DB of 2006
Randhawa ...Appellant
Versus
State of Haryana
...Respondent(s)
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.H.S.Jaswal, Advocate,
for the appellant in CRA-D-815-DB of 2006.
Mr.P.C.Chaudhary, Advocate,
for the appellant in CRA-D-846-DB of 2006.
Mr.Tapan Yadav, Advocate,
for the appellant in CRA-D-947-DB of 2006.
Mr.Kshitij Sharma, AAG, Haryana.
-.-
CRA-D-815-DB of 2006 & others 2
RAMESHWAR SINGH MALIK, J.
Three separate appeals filed by the co-convicts are proposed to be decided vide this common judgment. Particulars of the appeals are CRA-D 815-DB of 2006 (Khem Chand @ Khema v. State of Haryana), CRA D-846-DB of 2006 (Ajit v. State of Haryana) and CRA D-947-DB of 2006 (Randhawa v. State of Haryana). All these three appeals are against the same impugned judgment dated 20.9.2006 passed by learned Additional Sessions Judge, Jhajjar. However, for the facility of reference, the facts are being culled out from CRA-D-815-DB of 2006.
The criminal law was set into motion by the complainant Ram Chander (PW-6), by submitting a written application dated 21.11.2003 Ex. P45, to the effect that he was resident of village Dawla. They were three brothers. He alongwith his younger brother Mangal was living in village Patodi while his brother Leela was living in village Dawla and was doing the work of Ojha (Sorcerer). On 15.9.2003, he came to see his elder brother Leela, where his bhabi (Leela's wife) Sunita told him that Leela was called by Khema son of Surat Singh caste Maniyar resident of village Dawla, two days before. Mother of Khema was treated by Leela. Leela had not turned back till then. So, the complainant went to house of Khem Chand to enquire about Leela. He came to know that Khem Chand had taken Leela to the house of Ajit son of Ghisa Ram at village Kanhwa, whereupon, he reached at the house of Ajit in village Kanhwa. His brother Leela was found there. Besides him, Ajit Singh son of Ghisa Ram resident of village Kanhwa, Khem Chand son of Surat Singh, resident of village Dawla, Randhawa son of Raghbir CRA-D-815-DB of 2006 & others 3 Singh and Kapoor @ Bhundu son of Om Parkash, caste Chamar, residents of village Kanhwa were also found there. The complainant had a talk with Leela. Leela replied that he would return till evening and the complainant should go home. Thereafter, the complainant returned back to his house but his brother Leela did not return till evening. The complainant went to village Patodi from village Dawla at night in connection with some urgent work. Today, i.e., 21.11.2003, he had come again to village Dawla to see his brother Leela and his family members. His Bhabi (brother's wife), Sunita told him that Leela had not returned. The complainant again enquired about the whereabouts of his brother and came to know that his brother Leela had treated the mother of Khem Chand but she could not be cured. Hence, Khem Chand nourished a grudge against Leela. The complainant suspected that Kapoor @ Bhundu and Khem Chand alongwith their accomplishes Ajit Singh and Randhawa son of Raghbir, Sarpanch of village Kanhwa, had kept concealed his brother Leela with the intention to kill him. He enquired about these four persons but all the four persons were not available at their respective houses. He requested for the search of his brother.
On the above-said application moved by the complainant Ram Chander (PW-6), FIR under Section 364 IPC was registered at Police Station Jhajjar, on 21.11.2003. Investigation was conducted by Vinod Kumar, Inspector CIA Staff, Jhajjar (PW-15). During the course of investigation, accused Khem Chand was arrested on 21.11.2003. This accused suffered disclosure statement Ex. P42 to the effect that on the intervening night of 15/16-09-03, he alongwith Ajit, Randhawa and CRA-D-815-DB of 2006 & others 4 Kapoor caused the murder of Leela as he has left evil spirit in his (Khem Chand's) mother. Under the influence of liquor, his shirt and pajama were taken out in the house of Ajit. He was made to lie on the ground and was murdered with the help of `Dao' (sharp edged weapon made of iron). He further stated that he gagged the mouth of Leela with one hand and caught hold of his hair. Kapoor caught hold his hands. Randhawa caught hold the feet of Leela. Ajit, with the help of `Dao', choped the neck from the body, then both the hands from the shoulders were cut, both the legs were also cut from the thighs and his hands and feet joints were also broken. All the body's parts were put in a gunny bag and after putting it on a lathi, all the four persons took the same on the northern bank of the drain. The parts of the body were thrown in the deep water. The purse and identity card of Leela were taken out from his shirt by Randhawa. The lathi, which was used to take away the dead body, had been kept by accused Kapoor while the weapon of offence `Dao' was in the possession of Ajit.
He further stated that he had also paid `30,000/- to Ajit, Randhawa and Kapoor for helping to commit the murder of Leela. The clothes which were worn by Khema, were blood stained and had been washed by him. The said clothes and pajama of Leela (since deceased) had been kept concealed by him in the house of his sister Krishna wife of Babu Lal resident of Nuh, District Gurgaon, about which none had any knowledge except him. He offered to get the same recovered. He also offered to demarcate the place of room, where Leela was murdered and the place where the dead body was thrown in the drain. The said CRA-D-815-DB of 2006 & others 5 disclosure statement was thumb marked by Ram Chander (PW-6) and was signed by Khem Chand, Sat Narain. On the basis of disclosure statement, offence under Sections 302, 201 and 34 IPC were added in the FIR.
On the same day, pursuant to the disclosure statement, Khem Chand demarcated the place of occurrence. Memo of demarcation Ex.P42/A was prepared, which was signed by ASI Sat Narain and thumb marked by the complainant Ram Chander. Then he got demarcated the place where the dead body was taken to the drain in the area of village Kanhwa and the parts of the body were thrown in the drain. The dead body was searched in the water with the help of Ram Chander- complainant, Vinod son of Ram Chander, Devender son of Raghbir, Ramphal son of Jogi Ram, Malkhan son of Giani Ram, Kishore son of Ghasi Ram and Sanjay son of Shish Ram.
After search, one gunny bag, one shirt and some bones were recovered. Recovery memos were prepared as Ex. P42/B. It was signed by ASI Sat Narain and complainant Ram Chander thumb marked the same. The gunny bag alongwith shirt were sealed with the seal S.N and were taken into possession vide recovery memo Ex.42/C, attested by Sat Narain, ASI and Pardeep Kumar, H.C. Thereafter, they went to the place of occurrence at the house of Ajit in village Kanhwa. The room was situated in the southern side of the house where the deceased was murdered in the intervening night of 15/16.9.03. Blood stained earth was lifted and blood stained wall was also scratched. It was put in the plastic box and bricks of northern wall, which were stained with blood, CRA-D-815-DB of 2006 & others 6 were also taken in possession, vide recovery Ex. P42/D, attested by ASI Sat Narain and HC Pardeep Kumar. The bones and the parts of the body were sent for post-mortem examination to PGIMS Rohtak, after conducting the inquest proceedings at the spot.
Thereafter, on 1.12.2003, accused Kapoor @ Bhundu was arrested. After interrogation, he suffered disclosure statement Ex. P43, on 2.12.2003, on the same lines as that of accused Khem Chand, pointing out as to how the deceased Leela was murdered, what role was played by each of the accused and where the dead body was thrown. He also stated that `30,000/- were paid by accused Khem Chand to Ajit for murder of Leela. `5,000/- fell to his (Kapoor @ Bhundu) share. Out of `5,000/- he paid `2,000/- to the baniya of village Kasni, `2,000/- were paid to Jat of village Naboda from whom, he had taken loan and the remaining amount of `1,000/- was spent by him.
He further stated that he could get the lathi recovered which had been concealed by him near the bank of drain no.8 in village Fatehpuri under the earth, about which nobody else had any knowledge. He further stated that he could identify the place of occurrence and also the place where the dead body was thrown. This disclosure statement was thumb marked by Ram Chander-complainant and signed by ASI Sat Narain. On 5.12.2003, he got the lathi recovered vide recovery memo Ex.P43/B in the presence of H.C. Pardeep Kumar and ASI Sat Narain. He also demarcated the place of occurrence, vide memo Ex.P43/C attested by ASI Sat Narain and HC Pardeep Kumar. The sketch of lathi was prepared as Ex. P43/E and the lathi was taken in to police possession, vide CRA-D-815-DB of 2006 & others 7 recovery memo Ex. P43/B. Accused-Randhawa was arrested on 19.12.2003. He suffered a disclosure statement in which he admitted his presence at the time and place of occurrence. He offered to identify the place of occurrence, place where the dead body was thrown and to get recovered the identity card of deceased Leela. Accused-Ajit was declared proclaimed offender and later on he was arrested on 13.8.2005. He also suffered a disclosure statement, Ex. P40 on the similar lines as suffered by his co-accused. He got recovered `Dao', weapon of offence, which was taken into possession vide recovery memo Ex. P70. He also got the place identified where the dead body was thrown, vide Ex. P69.
After completion of the investigation, report under Section 173 Cr.P.C. was presented. The relevant documents were supplied to the accused, in accordance with law. However, since the offence punishable under Sections 302 IPC was found to be exclusively triable by the court of session, the case was committed by the learned Magistrate for trial, to the court of session. The accused pleaded not guilty and claimed trial. Accused Kapoor was declared juvenile and his case was sent to the juvenile court.
Having found a prima facie case, charge was framed against accused Khem Chand and Randhawa, vide order dated 13.8.2004. Later on, accused Ajit was also arrested and charge was framed under Sections 364/302/201 and 34 IPC against Khem Chand, Randhawa and Ajit, vide order dated 9.12.2005. The accused pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as CRA-D-815-DB of 2006 & others 8 many as 15 prosecution witnesses, besides tendering the relevant documents in its evidence. After conclusion of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Entire incriminating material brought on record was put to the accused. The accused alleged false implication and claimed themselves to be innocent. However, no defence evidence was produced by the accused.
The learned trial Court, after hearing both the parties and perusal of the evidence, held the accused guilty for the offences punishable under Sections 364, 302, 201 and 34 IPC and they were convicted, accordingly, vide impugned judgment of conviction dated 20.9.2006. Consequently, vide order of sentence dated 22.9.2006, convicts were sentenced to undergo rigorous imprisonment for life and to pay fine of `.2,000/- each for the offence punishable under Sections 302/34 IPC. In default of payment of fine, they were further ordered to undergo rigorous imprisonment for three months. The convicts were also sentenced to undergo rigorous imprisonment for 7 years and to pay fine of `1,000/- each for the offence punishable under Sections 364/34 IPC. In default of payment of fine, they were further ordered to undergo rigorous imprisonment for one month. Further, the convicts were sentenced to undergo rigorous imprisonment for three years and to pay fine of `500/- each for the offence punishable under Section 201/34 IPC. In default of payment of fine, they were further ordered to undergo imprisonment for 15 days. However, all the sentences were ordered to run concurrently.
Feeling aggrieved against the impugned judgment of CRA-D-815-DB of 2006 & others 9 conviction and order of sentence, all the three convicts have filed these three separate appeals, particulars whereof noted here-in-above. That is how, this Court is seized of the matter.
Learned counsel for the appellants vehemently contended that it was a case of no evidence. There was inordinate long and unexplained delay of more than 2 months in registration of the FIR. No missing report was recorded from 13.9.2003 to 21.11.2003. The dead body was not identified. There was no last seen evidence. No motive could be proved. The doctor could not ascertain the cause of death. Weapon of offence was not proved. PW-6 Ram Chander-complainant, real brother of Leela-deceased as well as PW-7 Raj Singh did not support the case of prosecution. It was next contended that in spite of the fact that it was a clear case of acquittal, the appellants have already suffered more than enough by undergoing the actual sentence from 7 years to 9 years. Learned counsel for the appellants concluded by submitting that the impugned judgment of conviction was not sustainable in law and the same was liable to be set aside.
Per contra, learned counsel for the State contended that although there were some discrepancies in the prosecution evidence, yet since the same were not going to the root of the case, these were liable to be ignored. Sufficient and cogent evidence has been brought on record, so as to complete the chain of events against the appellants and they have been rightly convicted by the learned trial Court. He further submits that all the three appeals, being without any merit, were liable to be dismissed.
Having heard the learned counsel for the parties, after careful CRA-D-815-DB of 2006 & others 10 perusal of the record and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that since the prosecution has miserably failed to prove its case beyond reasonable doubt, the impugned judgment of conviction and order of sentence are not sustainable in law and all the three appeals deserve to be allowed. To say so, there are more than one reasons, which are being recorded hereinafter.
The star witness in the present case was PW-6 Ram Chander- complainant, who was none-else than the real brother of Leela deceased. He was the author of the FIR. He submitted a written application Ex. P45 taking specific averments that he, on 15.9.2003, came from village Patodi to his native village Dawla to meet his brother Leela deceased. He was informed by Sunita wife of Leela deceased that Leela was called by Khem Chand @ Khema-appellant. When PW-6 went to the house of Khem Chand to enquire about his brother Leela, he came to know that Khema had taken Leela to the house of appellant Ajit at village Kanhwa. When the complainant PW-6 reached village Kanhwa in search of his brother Leela, he found Leela at the house of Ajit-appellant.
He further said that he had a talk with his brother Leela, who asked the complainant to go home and he would be returning till evening. Thereafter, PW-6 came back at village Dawla and at night went to village Patodi. However, when he again came to village Dawla on 21.11.2003, Sunita wife of Leela told him that Leela did not return till that date.
However, when the complainant appeared before the Court as PW-6, he deposed that when he came on 21.11.2003 to meet his CRA-D-815-DB of 2006 & others 11 brother Leela, Sunita wife of Leela deceased told him that Leela had gone with Khem Chand-appellant. He further deposed that when he went to the house of Ajit, he found that appellants Khem Chand, Ajit, Randhawa, their co-accused Kapoor (who was declared to be juvenile and was acquitted after separate trial) and Leela were consuming liquor. He asked his brother Leela to come along but he did not come back with the complainant and told that he would be coming back afterwards. When Leela did not come back, complainant again went there after some time but none was found there. Then he moved an application to the police vide Ex. P45 which was bearing his thumb impression.
PW-6 Ram Chander (complainant) has specifically deposed before the Court that he found Leela deceased consuming liquor with the accused persons on 21.11.2003. First of all, when both the statements of this witness are read together, it becomes clear that the same are diametrically against each other. Further, this witness was declared hostile and nothing substantive could be elicited from his cross- examination. Thus, a serious doubt had been created in the prosecution story.
Admittedly, the dead body was allegedly recovered on 21.11.2003 itself, which was only a skeleton. Inspector Vinod Kumar, Investigating Officer (PW-15), had to admit in the opening sentence of his cross-examination that he recovered 7/8 bones of a human. If the complainant Ram Chander (PW-6) has met his brother Leela on 21.11.2003, as per his categoric statement made before the Court, then the recovery of dead body, which had already reduced to skeleton, on CRA-D-815-DB of 2006 & others 12 21.11.2003 itself, completely smashes the case of the prosecution.
The argument raised on behalf of the appellants that the motive was not proved, merits acceptance. Further, the prosecution has also failed to explain the inordinate long delay of more than two months in registration of the FIR. It also does not appeal to reason as to why the complainant or the wife of the deceased did not get recorded even the missing report of deceased Leela for more than 2 months.
Similarly, the identity of the alleged dead body, nay skeleton, was highly doubtful in the absence of any scientific evidence like DNA test report. Since, it was only a skeleton, which was allegedly recovered in the name of a dead body, Dr. Amarjeet Singh (PW-12) could not ascertain the cause of death in the post-mortem report, Ex. P-66. Further, no last seen evidence could be proved. Thus, the cumulative effect of the discussion, here-in-above brings this Court to the unassailable conclusion that present one was a clear case of no evidence.
The story put-forth by the prosecution, when considered with circumspection, the present one being a case based on circumstantial evidence, does not inspire confidence. Material witnesses have not supported the prosecution version. Like PW-6, who was a star witness, PW-7 Raj Singh was also declared hostile. After careful examination of the evidence brought on record, this Court feels no hesitation to hold that the prosecution has miserably failed to complete the chain of events so as to bring home the guilt against the appellants.
The material witnesses have been found to be unreliable. The prosecution version has been found to be suffering from falsehood. CRA-D-815-DB of 2006 & others 13 The prosecution has failed to connect the appellants with the crime in question, by leading cogent evidence. In this view of the matter, it is unhesitatingly held that it is not safe to uphold the conviction of the appellants as no evidence, in true sense of the term, has been found against them.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the firm view that the learned trial Court has proceeded on an erroneous approach, while recording the conviction of the appellants without there being sufficient evidence, to uphold the conviction. Thus, the impugned judgment of conviction dated 20.9.2006 and order of sentence dated 22.9.2006, are ordered to be set aside. The appellants are acquitted of the charges framed against them.
Resultantly, all the three appeals are allowed. The appellants are directed to be set at liberty forthwith, if they are not required in any other case.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
20.11.2012
mks