Punjab-Haryana High Court
Randhir Singh And Others vs State Of Haryana on 18 February, 2014
Author: Kuldip Singh
Bench: Satish Kumar Mittal, Kuldip Singh
Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision : 18.2.2014.
Crl. Appeal No. D-151-DB of 2009
Randhir Singh and others ........ Appellants
Versus
State of Haryana ...... Respondent
Crl. Revision No. 789 of 2009
Smt. Kamlesh ....... Petitioner
Versus
Jiyo and others ...... Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE KULDIP SINGH
Present:- Mr. Vinod Ghai, Senior Advocate, with,
Mr. Simrandeep Singh Sandhu, Advocate, for the appellants,
in CRA No. D-151-DB of 2009 and
for the respondents in CRR No. 789 of 2009.
Mr. Rakesh Nagpal, Advocate, for the complainant in
CRA No. D-151-DB of 2009 and
for the petitioner in CRR No. 789 of 2009.
Mr. Anjum Ahmed, Additional Advocate General, Haryana,
for respondent-State.
KULDIP SINGH, J.
By this order, we will dispose of Crl. Appeal No. D-151-DB of 2009 as well as Crl. Revision No. 789 of 2009. In the Crl. Appeal No. D- 151-DB of 2009, Randhir Singh (Dhira), Gulaba alias Gaba and Hukam Chand (Hukmi) have challenged the judgment and order dated 7.1.2009, Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -2- passed by learned Additional Sessions Judge, Kaithal, vide which they have been convicted under Section 302 and 120-B/34 IPC and sentenced to undergo imprisonment for life and fine of Rs. 10,000/- each, in default thereof, to further undergo rigorous imprisonment for one year each. They have also been convicted under Section 201 IPC and sentenced to undergo rigorous imprisonment for two years and fine of Rs. 1,000/- each, in default thereof, to further undergo rigorous imprisonment for three months. However, accused Jiyo and Kuldeep were acquitted of the charges framed against them. In Crl. Revision No. 789 of 2009, Smt. Kamlesh (complainant) has challenged the acquittal of Jiyo and Kuldeep. She has also prayed for enhancement of the sentence passed on accused Randhir Singh (Dhira), Gulaba alias Gaba and Hukam Chand (Hukmi).
The State machinery was put in motion on the recording of statement of Surender Singh son of Ram Dia, resident of Karora Dinana Patti on 20.6.2001 at about 9:30 AM, on the basis of which DDR (Ex.PT) was recorded at Police Station Rajound. In the statement, Surender Singh reported that his Bua (father's sister) Rita Devi wife of Rajbir, resident of village Mullana had come to their house about 15/16 days ago alongwith her son Manish, aged about 10 years and daughter Rekha, aged about 6/7 years. Manish went missing on 19.6.2001 in the evening at about 5:00 PM. He (Surender) alongwith other family members had searched Manish, but he could not be found. On 20.6.2001, he alongwith some other persons was searching for Manish in the village, then, 2/3 persons saw the dead body of a boy near the pond. Balwinder, Nafe Singh, Pawan son of Nafe Singh and Krishan son of Fateh Singh also came at the pond and Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -3- fished out the dead body from the pond. Then, he saw that the dead body was that of Manish. There were no clothes on the dead body. There were some marks of injury on his right cheek, right eye and forehead. There was some swelling on his eyes. His pants and shirt were found lying outside the pond. They took the dead body to their house. Then, he accompanied by Krishan and Pritam Singh son of Risal Singh had come to supply the information to the police. He further stated that he does not know the reason of the death of Manish. Legal action be taken.
The police then prepared the inquest report Ex.PU wherein statement of Krishan son of Fateh Singh and Rajbir son of Jagir Singh was also recorded under Section 175 Cr.P.C. Rough site plan (Ex.PC) was prepared.
Thereafter, on 24.6.2001, Kamlesh wife of Ram Dia made statement Ex.PA before the police wherein she has stated that 18/20 days back, her sister-in-law Rita Devi,, who is married with Rajbir son of Jagir Singh, resident of village Mulana, District Ambala, had come to her with her two children due to summer vacations. On 19.6.2001, Manish after taking his evening tea at about 4:30 PM had gone outside to play with the children. Till late night, Manish did not return back to home. All the family members searched for him in the mohalla, but he was not traceable. On next morning at 6:00 AM, her (Kamlesh's) son Surinder Singh, Balwinder Singh son of Nafe Singh, Krishan Kumar son of Fateh Singh, residents of village Karora reached the pond of village namely 'Kab Tirath' in search of Manish. There they found that the clothes of Manish were lying on the northern side of the pond. Out of suspicion, they searched the Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -4- pond on which the dead body of Manish, which was found lying on the edge of the pond, was taken out. It was identified by Surender Singh, Balwinder Singh and Krishan. On getting this information, her family members and other villagers went near the dead body of Manish. They saw some marks on the right side of the nose and swelling on the eyes, regarding which information was given to the police by her son Surender. On the same day, after receiving the information, the post mortem of the dead body was conducted. But, now she has suspicion that her nephew Manish was murdered by Randhir Singh, Kuldeep Singh sons of Sube Singh, wife of Sube Singh (name not known), Hukmi and Gaba sons of Dayara, residents of Karora under some conspiracy after kidnapping him in the night and thereafter threw the clothes and dead body of Manish in the pond. The motive behind the murder is that three months ago, the son of Sube Singh, namely, Randhir Singh had beaten her. The matter was compromised by the respectables of the village. On 18.6.2001, Randhir Singh had caused injuries to her husband Ram Dia due to spilling the water in the street. At that time, Hukmi, Gaba and wife of Sube Singh were also present. Wife of Sube Singh had threatened her sister-in-law Rita Devi that she will go from here weeping. In the night of 19/20.6.2001, when Manish was missing then they wanted to search the house of the said accused, but they flatly refused. Complainant was of the firm belief that Manish has been murdered by said Randhir Singh, Kuldeep Singh, Hukmi, Gaba and wife of Sube Singh and that the said accused had thrown the dead body of Manish in the pond.
Station House Officer (in short 'SHO'), Police Station Rajound Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -5- after recording the said statement recorded police proceedings (Ex.PA/3) and thereupon on 24.6.2001 at 1:35 PM sent the same to police station for registration of a case under Sections 302/201/120-B IPC. Accordingly, the First Information Report (in short 'FIR') was registered. Police started the investigation. During the course of investigation, statement of Ramesh Harit (PW2) was recorded on 26.6.2001 (Ex.DA). On 27.6.2001, his (Ramesh Harit's) supplementary statement under Section 161 Cr.P.C. (Ex.DB) was also recorded. On 27.6.2001, statement Ex.DC of Bija (PW10) was also recorded.
In the said statement Ex.DA, Ramesh Harit stated that on 18.6.2001, Randhir Singh son of Sube Singh had caused injury to Ram Dia. The matter was compromised. On 19.6.2001, Smt. Kamlesh gave an application to the police station and HC Raghbir Singh, P.S. Rajound had come to their village for investigation of their application. When H.C. Raghbir Singh came there, then Gaba etc. ran away. Many times there were quarrells between them and they compromised the matter. Jiyo Devi wife of Sube Singh had stated at that time to Rita Devi that she (Jiyo Devi) will do such an act that you (Rita Devi) will go from village with weeping face, instead of smiling face. He stated that though Gulaba alias Gaba, Didara, Kuldeep, Randhir and Jiyo Devi have murdered Manish, but Hukam Chand is not involved in the murder of Manish. In the supplementary statement (Ex.DB) recorded on 27.6.2001, Ramesh Harit further stated that on 19.6.2001, he was going in the street, which is in front of the house of Gulaba for his personal work. Then, at about 7:30/7:45 PM, Manish son of Smt. Rita Devi was playing in front of the Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -6- door inside the house of his maternal uncle Dhira son of Sube Singh. Gulaba was smoking Huka while sitting on his cot. After about 1½ hours, he came to know that Manish has been missing. In this way, Ramesh Harit put up the version of 'last seen'.
Bija on 27.6.2001 in his statement (Ex.DC) under Section 161 Cr.P.C. disclosed to the police that on 19.6.2001, many persons had gathered for searching Manish. They told him and Ram Dia to take the search of house of Gulaba etc. on the basis of suspicion. Then, he alongwith Ram Dia son of Nathu went to the house of Gulaba at about 9:30/10:00 PM for searching Manish. When he knocked at the house of Gulaba, they saw that the lights were totally off inside the house. Gulaba opened the gate and they asked him for Manish. Then, Gulaba replied that he is not here. He was looking very puzzled and at the same time, he closed the door. During investigation, Surender had also made statement Ex.DX on the line of the statement of his mother Smt. Kamlesh.
The police thereafter arrested the accused. Accused Randhir Singh suffered a disclosure statement Ex.PH that the parna used to press the mouth of Manish has been kept concealed by him in the empty pot kept in Chobara of his residential house and he can get the same recovered. Accused Kuldeep also made disclosure statement Ex.PJ that the rope which was used to tie the deceased Manish prior to his death has been kept concealed underneath the oil tank and he can get the same recovered. Accused Jiyo Devi also made disclosure statement Ex.PK that nylon chappal which was worn by Manish has been kept concealed underneath the iron box in Chobara and she can get the same recovered. Gulaba @ Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -7- Gaba made disclosure statement Ex.PL on 1.7.2001 that he had falsely made statement in his prior disclosure statement that the plastic bag used by him and his nephew Kuldeep to carry the dead body is kept under the outer cover of Bitoda of Maya Ram near the shamlat land and he can get the same recovered. In pursuance to the statements, Parna was got recovered from the empty earthern pitcher, vide recovery memo Ex.PN, pair of nylon chappal was recovered from underneath the iron box, vide recovery memo Ex.PO and jute rope was recovered from the oil drum, vide Ex.PQ. On 1.7.2001, accused also led the police to the place where Manish was killed by calling him outside the house and tying him with rope. Demarcation Ex.PM was prepared. On the identification of the accused, demarcation report Ex.PR was also prepared to show where the dead body was thrown in the village pond. Accused Gulaba alias Gaba also got recovered the bag of fertilizer allegedly used to carry the dead body. After the completion of investigation, challan was presented in the Court. Accused were chargesheeted under Sections 302/34, 201 and 120- B/34 IPC, to which they did not plead guilty and claimed trial.
In support of its case, prosecution examined complainant Kamlesh (PW1), Ramesh Harit (PW2), Constable Ram Niwas (PW3), EHC Om Parkash (PW4), H.C. Bhaiya Ram (PW5), Constable Bhim Singh (PW6), ASI Prem Singh (PW7), Dr. R.P. Goyal (PW8), Ramesh Chand (PW9), Bija (PW10), Surender Singh (PW11), Inspector Karam Singh, partly Investigating Officer (PW12), ASI Raghbir Singh (PW13), Sibash Kavi Raj, SP Mewat, Investigating Officer (PW 14) and closed the evidence. Accused did not lead any evidence in defence. Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -8- When examined under Section 313 Cr.P.C., accused Randhir Singh took the plea that his entire family has been involved in a false case. Kamlesh and Ramesh Harit hatched a criminal conspiracy on account of enmity. After concocting a false story, they got them framed in this case. Manish was either killed by Kamlesh etc. or he died after suddenly coming under a dune while taking bath in Kab Tirath. Ramesh Harit was nursing a grudge against his family as he projected himself as a witness though he was not at all acquainted with the facts. The present case is a brain child of Ramesh Harit.
Jiyo Devi took the plea that she does not know as how the death of Manish has taken place. On account of enmity with Ramesh Harit, they have been falsely involved in this case. Accused Hukam Chand, Gulaba and Kuldeep also took the same plea as taken by Randhir Singh. Accused did not lead any evidence in defence.
After hearing the learned prosecution, learned defence counsel and going through the evidence, the learned Additional Sessions Judge, Kaithal, convicted accused and sentenced as aforesaid.
We have heard learned senior counsel for the appellants, learned counsel for the revision petitioner, learned counsel for the acquitted accused, learned Additional Advocate General for the State and have also carefully gone through the file.
In this case, there is no eye-witness account of the murder to prove the guilt of the accused. The case is based on the circumstantial evidence. The prosecution evidence to prove the circumstantial evidence can be divided under the following heads :-
Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh
Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -9-
(1) Medical evidence ; (2) Motive ; (3) Last seen ; (4) Search of the house of the accused; and (5) Recovery of incriminating articles from the accused.
In this case, the prosecution case as put forward is that Parna was recovered from accused Randhir, with which Manish was allegedly murdered. Rope with which Manish was tied was recovered from accused Kuldeep. Pair of nylon chappal of deceased Manish was recovered from Jiyo Devi and the plastic bag in which dead body was carried to the pond was got recovered from accused Gulaba alias Gaba.
Now, first of all, the medical evidence needs to be examined to determine the cause of death. Dr. R.P. Goyal (PW8) has stated that he had conducted the post mortem on the dead body of Manish son of Rajbir aged about 10 years. Rigor mortis was present in lower limbs only. Body was wet and face was swollen. No silva/froth from the mouth. Blood strained discharged from the nostril was present. The dead body was having following injury :-
1. There was multiple abrasion on face and nostril region, size varying 0.75 cm x 0.25 cm and 0.5 cm x 0.2 cm. On exploration subcutaneous clotted blood was present. Face cyanosed. There was one contusion on neck right side at the level of mandible. Size was 2 x 1.5 cm. On exploration subcutaneous clotted blood was present, underlying muscle were contused and congested.Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh
Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -10- Both lungs were not edematous or water lodged. No mud or water coming out. According to the opinion of doctor, the cause of death was asphyxia due to smothering, which is anti mortem and sufficient to cause death in normal course of nature. Probable duration between injuries and death was within short period and probable duration between death and post mortem was 18 to 36 hours. In cross examination, the doctor has clarified that semi digested food was found in the stomach. In his opinion, the deceased could have taken last meal one or two hours before his death. Now, if the injuries on the face, nostril region, neck coupled with the fact that the face was swollen, are examined, it goes to show that deceased was not certainly killed by closing his mouth with Parna. Had it been so, there would not have injuries on the face as recorded by the doctor. The dead body was found naked. The clothes were found on the bank of the pond. The clothes were not torn. It goes to indicate that the clothes of the deceased Manish were removed before his death or immediately after his death. It appears that somebody tried to close his face with hand, resulting in injuries on the face, right eye and also on the neck. Therefore, the police theory that deceased was killed by putting Parna on his face is not supported by medical evidence. There is also absolutely no medical evidence that the hands, legs or any part of the dead body was ever tied as sought to be made out from the disclosure statements made by the accused before the police during investigation. There is another angle, which was not examined during the police investigation. From the naked body, the Investigating Officer should have examined the case from another angle i.e. whether any sexual assault was Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -11- committed on the body before his death or whether he died during the said sexual assault ? Unluckily, the investigation started by taking it to be the case of drowning and the same was mentioned in the inquest report, despite the injuries on the face and neck.
Now, even if it is not proved as to in which circumstances the deceased was killed, this Court is to examine the remaining evidence. 'Last seen' evidence In this case, the deceased was last seen leaving the house on 19.6.2001 around 4:30 PM as stated in the DDR (Ex.PT) lodged by Surender (PW11) and Kamlesh (complainant/PW1). Thereafter, the deceased went missing. The prosecution has led the evidence in the form of statement of Ramesh Harit (PW2). On 26.6.2001, Ramesh Harit made statement before the police during investigation to allege the motive for the crime by narrating about the injury given by Randhir Singh to Ram Dia on 18.6.2001 and that Jiyo Devi telling the complainant Kamlesh that Rita Devi (mother of Manish) will go weeping, instead of smiling face. In the supplementary statement made on 27.6.2001 under Section 161 Cr.P.C (Ex.DB), Ramesh Harit had stated before the police that on 19.6.2001, he was going in the street, which is in front of the house of Gulaba, for his personal work. At about 7:30/7:45 PM, Manish son of Rita Devi was playing in front of the house of his maternal uncle Dhira son of Sube Singh. Gulaba was smoking Huka on his cot. After 1½ hours, he came to know that Manish has gone missing. In this way, Ramesh Harit is stated to have last seen the deceased Manish around 7:30/7:45 PM near the house of Gulaba (accused). In Court, Ramesh Harit (PW2) stated that he had seen Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -12- Manish playing outside the bara of Ram Dia and Randhir was standing outside his house, while Gulaba was smoking Huka. As he moved two steps ahead, he heard noise from back side and he saw that Randhir (accused) was holding the hand of Manish, whereas Hukmi and accused Gulaba were pushing Manish from back side towards their house. He further stated that he had disclosed the said incident to the people who had gathered in front of house of Ram Dia at about 9:00/9:30 PM. Thereafter, all the people deputed Ram Dia and Bija to search the house of Gulaba (accused). Then, both of them went to search the house of Gulaba (accused). Then, they (Ram Dia and Bija) came back within 10 minutes and on return, told that Gulaba etc. had refused to allow the search of their house. At that time, Surender (PW11) was also present. He clarified that 40/50 persons were present in front of house of Ram Dia. He further stated that his statement was recorded by the police on 26.6.2001 and again on 27.6.2001. The witness was confronted with the statements Ex.DA and Ex.DB wherein it is not recorded that Manish was being taken by accused Gulaba, Hukmi and Dhira inside their house. The witness further admitted that from 20.6.2001 to 26.6.2001, he had never gone to the police of his own to inform about the occurrence. Now, it is to be seen as to whether the said evidence of 'last seen' by Ramesh Harit can be trusted and relied.
Learned senior counsel for the accused/appellants has vehemently argued that if Ramesh Harit alias Ramesh Patwari had seen the accused pushing Manish to their house around 7:00 PM on 19.6.2001 and he had informed Surender, Kamlesh, Ram Dia and other villagers about Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -13- the same and that on his suspicion, an attempt was made to conduct the search of the house of Gulaba, then there is no reason why this fact was not mentioned in the first DDR (Ex.PT) lodged by Surender on 20.6.2001 at 9:30 AM, in which no name was mentioned as suspect. Further, when on the statement of Kamlesh (Ex.PA), a case was registered on 24.6.2001, there is no reason why this fact of accused taking Manish to their house was not mentioned when she knew about the same from 19.6.2001, as claimed by Ramesh Harit alias Ramesh Patwari. The statement of Ramesh Harit was recorded only on 26.6.2001 and on next day, a supplementary statement was recorded. Had Ramesh Harit seen the accused taking Manish to their house forcibly, then the word would have spread in the village as 40/50 persons were present in the evening, which included Sarpanch of the village, when Manish went missing on 19.6.2001. The accused would have been the first suspect and would have been named as the prime suspect in the DDR (Ex.PT) dated 20.6.2001 and the statement of Kamlesh forming basis of FIR (Ex.PA) dated 24.6.2001. It goes to show that the statement of Ramesh Harit of having last seen the deceased around 7:00 PM on the day he went missing and the accused taking him to their house, is not trustworthy.
Search of house of Gulaba on 19.6.2001 night It has been claimed by the witnesses Bija and Ramesh Harit that when Ramesh Harit told large gathering present in the house of Ram Dia on 19.6.2001 around 9:00/9:30 PM that he had seen accused Randhir Singh, Gulaba and Hukmi pushing Manish from back side towards their house, Ram Dia and Bija had gone to the house of Gulaba to search his Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -14- house. However, Gulaba refused the search. In this regard, when the statement of Bija (PW10) is examined, he stated that Ramesh Patwari had told them that Randhir accused was holding the hand of Manish, whereas Hukmi and Gulaba were pushing him (Manish) from back side for taking him inside the house. Then, public which had gathered there deputed him and Ram Dia to take search of the house of Gulaba. Then, they went to the house of Gulaba at 9:00/9:30 PM. The door of the house of Gulaba was closed and lights were off. They knocked at the house of Gulaba, who opened the door to the extent of half portion. They asked Gulaba for giving search of the house as Manish was missing, but he refused the search of his house and shut the door. At that time, Gulaba was perplexed. On his return, he alongwith Ram Dia had told the people that Gulaba had refused to give the search of house. During cross examination, he admitted that when Ramesh had met them, 50/60 persons were present. Sarpanch of the village was also present. It is strange that when the headman of the village and 50/60 persons were also present and a child of tender age was missing and Manish was suspected to be concealed in the house of Gulaba, then there is no reason why the Sarpanch and other people did not go there to force Gulaba to allow the search of his house and why the same was not reflected in the statement of Surender, on the basis of which DDR (Ex.PT) was recorded on 20.6.2001 at 9:30 AM. Ram Dia was not examined as witness in this case, though he was the maternal uncle of deceased Manish and was the vital witness as discussed above.
Further, if it was suspected that Manish was concealed in the house of Gulaba and attempt for search had failed, then there is no reason Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -15- why the matter was not reported to the police immediately and why even in the statement of Kamlesh (Ex.PA) recorded on 24.6.2001, this fact was not mentioned. It goes to show that the story of accused Gulaba, Hukmi and Randhir taking Manish towards their house and later on an attempt to conduct the search of their house was put forward at the later stage and was not in existence when the DDR (Ex.PT) was recorded on 20.6.2001 and when FIR was lodged on 24.6.2001.
Motive Now, coming to the motive as alleged by the prosecution and as coming out from the statement of complainant Kamlesh (PW1) is that 3 months prior to the occurrence, Randhir had beaten Kamlesh. Later on, the matter was compromised. One day prior to the incident, Randhir had assaulted Ram Dia (husband of Kamlesh) for spilling water in the street as her husband was bathing the buffaloes. Then, accused Jiyo Devi had threatened his sister-in-law Rita Devi that she will go back with weeping face from this village.
Learned senior counsel for the accused/appellants has argued that in this case, the alleged dispute was between accused, Ram Dia and Kamlesh. Rita Devi alongwith her children had come as a guest in the house of Ram Dia and Kamlesh. There was no reason for the accused to threaten Rita Devi on account of dispute with Ram Dia and Kamlesh. Therefore, there is no motive for the accused to kidnap and kill Manish, a minor son of Rita Devi. Indeed, the motive in this case is very week. Just because of quarrel over the spilling of water, such a ghastly crime is unlikely to be committed involving the murder of a child of tender age. Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -16- It is to be further noted that there is another fact, which makes the prosecution case suspicious. Learned senior counsel for the appellants has argued that a day before the occurrence i.e. on 18.6.2001, Ram Dia is alleged to have been beaten by Randhir. He had reported the matter to the police on 19.6.2001. According to Kamlesh, her husband had made a complaint to the police of Police Station Rajound and she had returned to the village around 10:00 AM. A Head Constable had come to the village on the same day. Head Constable informed her that Gulaba and Hukmi were not traceable. Head Constable remained present in the village till 3:00 PM. Manish went missing after 4:30 PM. It is unlikely that when Gulaba and Hukmi were on run on account of visit of the police on 19.6.2001 till 3:00 PM, they will not dare to kidnap Manish and commit the murder in the manner alleged by the prosecution at 4:30 PM on the same day. Moreover, if Gulaba and Hukmi had any enmity with the complainant party to the extent that they could commit the murder of Manish, they must have been the first suspect in the DDR lodged on next day at 9:30 AM.
Learned senior counsel for the accused/appellant has further argued that since it is a case of circumstantial evidence, the entire chain of circumstances should form a complete chain to enable this Court to reach at the conclusion that only the accused have committed the crime. Learned senior counsel has referred to the authority of Hon'ble Supreme Court in case of Aftab Ahmad Anasari Versus State of Uttaranchal, 2010 (2) SCC 583, in which the Apex Court observed that following principles must be satisfied, while dealing with circumstantial evidence, which reads as Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -17- under:-
"4 ....... In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion howsoever strong cannot be allowed to take place of proof and, therefore, the Court has to judge watchfully and ensure that the conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturization of actual incident but the circumstances cannot fail. Therefore, many a times, it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -18- that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. If the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt. However, in applying this principle, distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, and to human conduct and their relations to the facts of the particular case."
Learned senior counsel has also relied upon the authority of the Hon'ble Supreme Court in Vilas Pandurang Patil Versus State of Maharashtra, 2004 (3) RCR (Criminal) 353, wherein the Apex Court held that for the offence to be proved by circumstantial evidence, certain principles must be satisfied. The Hon'ble Supreme Court has also relied upon the authority in case of C. Chenga Reddy Versus State of A.P., 1996 (10) SCC 193 ; 1996 (3) RCR (Crl.) 793 (SC), wherein it observed as Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -19- under :-
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
The Hon'ble Supreme Court also referred to authority of Padala Veera Reddy Versus State of A.P., AIR 1990 Supreme Court 79 :
1990 (2) RCR (Crl.) 26 (SC),wherein it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :-
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else ; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -20-
should be inconsistent with his innocence.
Learned senior counsel for the accused/appellants has argued that the abovenoted guidelines laid down by the Apex Court when applied to the facts of present case, only make out a case of suspicion. It is established law that suspicion, howsoever, strong cannot form the basis of conviction. It has been further argued that in this case, the medical evidence rule out the theory of committing the murder by smothering with the help of Parna. The 'last seen' evidence and motive is not proved and was cooked up much later. The recovery of incriminating articles from the accused also did not match with the medical evidence. Therefore, the abovenoted tests laid by the Apex Court are not satisfied in the present case.
We agree with the contention of the learned senior counsel for the accused/appellants. It is to be seen that the 'last seen' evidence and the medical evidence has been discussed alongwith the recovery of incriminating articles from the accused. The evidence of 'last seen', motive and alleged attempt to search the house of accused has been discussed in detail and the same has been found to be undependable, doubtful and apparently put forward at much later stage, indicating that these were invented later on and were not in existence even after 5 days of the crime when the FIR was registered on the statement of complainant Kamlesh (PW1). We are also of the view that in the present case, the circumstantial evidence as put forward by the prosecution, is not dependable. The accused are not connected with the crime, though there is suspicion that accused might have committed the offence. Unluckily, from the naked Sharma Sanjiv Kumar 2014.03.11 12:47 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No. D-151-DB of 2009 and Crl. Rev. No. 789 of 2009 -21- body of minor Manish, the injuries on his face and neck, the investigating agency did not get suspicious and consequently did not examine the other angle of the crime i.e. sexual assault. It being so, we are of the view that the charges levelled against the accused are not proved beyond all reasonable doubts. The suspicion cannot take place of positive proof. As such, accused are entitled to be acquitted giving them benefit of doubt.
In view of the above, Criminal Appeal No. D-151-DB of 2009 is allowed, and Criminal Revision No. 789 of 2009 is dismissed. Resultantly, the impugned judgment of conviction and the order of sentence is set aside. Gulaba alias Gaba (appellant No. 2 in Criminal Appeal No. D-151-DB of 2009), who is in custody, be set at liberty forthwith, if not required in any other case. Bail bonds and surety bond of remaining accused are discharged.
(SATISH KUMAR MITTAL) (KULDIP SINGH)
JUDGE JUDGE
18.2.2014
sjks
Whether referred to the Reporter or not ? : Yes / No.
Sharma Sanjiv Kumar
2014.03.11 12:47
I attest to the accuracy and
integrity of this document
Chandigarh