Punjab-Haryana High Court
Ram Chander Son Of Prabhu Dayal And ... vs State Of Haryana on 2 September, 2009
Author: S.S. Saron
Bench: S.S. Saron, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.263-DB of 2006
Date of decision : 2.9.2009
Ram Chander son of Prabhu Dayal and Others
.... Appellants
Versus
State of Haryana
..... Respondent
and
Crl. Appeal No.264-DB of 2006
Date of decision : 2.9.2009
Aklesh son of Hari Singh
.... Appellant
Versus
State of Haryana
..... Respondent
CORAM : HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN.
Present: Mr. Vinod Ghai, Advocate for the appellants
in Crl. Appeal No. 263-DB of 2006.
Mr. N.S. Shekhawat, Advocate for the appellant
in Crl. Appeal No. 264-DB of 2006.
Mr. H.S. Sran, Addl. A.G., Haryana for the State.
****
Crl. Appeal No. 263-DB of 2006 and [2]
Crl. Appeal No. 264-DB of 2006
S.S. SARON, J.
By this order we would dispose of two appeals i.e. Crl. Appeal No.263-DB of 2006 filed by Ram Chander, Yaswant, Devender @ Virender and Krishan Kumar sons of Prabhu Dayal and Crl. Appeal No.264-DB of 2006 filed by Aklesh son of Hari Singh as they arise out of the same judgment and order dated 22.3.2006 passed by the learned Additional Sessions Judge, Narnaul, whereby the appellants/appellant in both the appeals have been convicted and sentenced to undergo imprisonment for life, besides, to pay a fine of Rs.5000/- each for the offence under Section 302 read with Section 120-B Indian Penal Code ("IPC" - for short) and in default of payment of fine, to undergo further rigorous imprisonment for three months.
The FIR in the case has been registered on the statement of Ram Niwas (PW8) son of Jhabar Singh. It is stated by the complainant Ram Niwas (PW8) that they were two brothers and he was elder and Rambir @ Prithvi (deceased in the present case) was his younger brother. They were both married and resided separately with their families by constructing a house at the tubewell in their field. Ram Singh (PW1) an uncle of the complainant Ram Niwas (PW8) also resided there along with his family by constructing a house in his field. On 16.12.2001 at about 7/7.30 p.m. Pawan Kumar (PW11) cousin of the complainant was studying in the 'kothri' (constructed shed) of the tubewell and a person came there near the said 'kothri' (constructed shed) and called the name of Rambir @ Prithvi (deceased). On hearing noise, Pawan Kumar (PW11) came out from the said 'kothri' and the person who had come there asked Pawan Kumar (PW11) to call Rambir (deceased) with whom he had work. The said person who had come stated that he was resident of village Bahuwa. Pawan Kumar (PW11) came inside the house and called Rambir (deceased) who Crl. Appeal No. 263-DB of 2006 and [3] Crl. Appeal No. 264-DB of 2006 came out to see the said person. Rambir (deceased) and the said unknown person chatted there with each other and thereafter, they went towards village Sihore on foot through the 'katcha' (unmettled) passage. At that time, the complainant Ram Niwas (PW8) was taking his meal. Their tubewell was situated on the way leading to Sihore from Bahuwa. Rambir (deceased) did not come back to the house during the night. They thought that he would be watering the fields. Next morning Rambir (deceased) was not found in their fields. On 17.12.2001 at about 7.00 a.m., the complainant Ram Niwas (PW8) was taking his camel-cart towards village Sihore for his personal work. When he reached near the mustard crop field of Chandgi Ram son of Umrav, one person was seen lying in the mustard crop field of Chandgi Ram. Ram Niwas complainant (PW8) stopped his camel-cart and went towards the place where the person was lying. He found his brother Rambir @ Prithvi lying dead there. His mouth was filled with sand and there were scratches on his neck. His brother had been put there after his murder had been committed. It is further stated by the complainant that they had a grudge for quite some days with Prabhu Dayal Ex-Sarpanch son of Kalu Ram (father of the appellants in Crl. Appeal No. 263- DB of 2006). About two and a half to three years ago, Devender @ Virender (appellant No.3) and Yashwant (appellant No.2) sons of Prabhu Dayal and others with an intention to kill his (complainant's) uncle (chacha) namely Ram Singh (PW1) had run over their tractor on him (Ram Singh - PW1). On the statement of Ram Singh (PW-1) - the uncle of the complainant, a case for the offence under Section 307 IPC was registered against them i.e. Devender @ Virender (appellant No.3), Yashwant (appellant No.2) and others. The trial in the said case was going on. Rambir (deceased) the brother of the complainant was pursuing that case. A relative namely Raju @ Raj Kumar son of Nathu Ram Crl. Appeal No. 263-DB of 2006 and [4] Crl. Appeal No. 264-DB of 2006 resident of Baldhan Kalan, besides, Devender @ Virender and Yaswant sons of Prabhu Dayal residents of Sihore had a day earlier asked Rambir (deceased) not to pursue the case and to compromise the matter, otherwise he would be killed. Besides, a day earlier i.e. on 16.12.2001 the marriage of the granddaughter of Prabhu Dayal was to be solemnized and Raju @ Raj Kumar had come for the said marriage. Therefore, the complainant Ram Niwas (PW8) had every suspicion that his brother Rambir had been murdered by throttling his throat or by some other mode by Raju alias Raj Kumar son of Nathu Ram, resident of Baldhan Kalan; besides, Devender @ Virender , Ram Chander, Yaswant, Krishan sons of Prabhu Dayal and Lalit son of Devender . The police had reached the spot and recorded his statement which he had heard and had accepted it as correct. It was prayed that legal proceedings be initiated. The statement (Ex.PG) of Ram Niwas (PW8) was recorded by Parbhati Lal SI/SHO Police Station Kanina (PW15) on 17.12.2001. He also recorded the Police proceedings, which are to the effect that on 17.12.2001 Gurdeep Singh Sarpanch of village Sihore had telephonically informed the Police Station Kanina that the dead body of Rambir @ Prithvi resident of village Sihore was lying in the mustard crop field of Chandgi Ram near the passage leading from village Sihore to Bahuwa. The SI/SHO Parbhati Lal (PW15) was asked to reach at the spot for investigation. On receipt of the information, SI/SHO Parbhati Lal (PW15) along with ASI Om Parkash, HC Sube Singh, Head Constable Satish Kumar and driver Chajju Ram Constable reached the spot in a Government Jeep where the complainant Ram Niwas (PW8) and many other persons of the village were there. Ram Niwas complainant (PW8) got his statement recorded which was written word by word and read over to him and he after admitting it to be correct had signed it in English, which was attested by SI/SHO Parbhati Lal (PW15). Crl. Appeal No. 263-DB of 2006 and [5] Crl. Appeal No. 264-DB of 2006 From the said statement, a case for the offence under Section 302/34 IPC was made out. The statement was sent to the Police Station for registration of a case through Constable Satish Kumar. After registration of the case, the case number was asked to be intimated. The special report was asked to be sent according to rules. Besides, the dog squad and crime van was asked to be sent. On the basis of the statement (Ex.PG) of Ram Niwas, FIR (Ex.PE) was registered. The copies of FIR were prepared according to rules which were sent as special report to the Ilaqa Magistrate and other officers concerned through Constable Rajinder Singh. SI/SHO Parbhati Lal (PW15) prepared the inquest report (Ex.PS). He also prepared the rough site plan (Ex.PT) at the spot. Besides, he sent a written request Ex.PB to the doctors for the postmortem examination of the dead body. After investigation, the case was handed over to Inspector Daya Ram (PW14). Inspector Daya Ram (PW14) inspected the spot and he verified the facts. He recorded the statements of Som Dutt, Ram Niwas (PW8), Ram Singh (PW1) and Pawan Kumar (PW11). He also recorded the statement of Sushia @ Shish Ram and he sent the dead body for postmortem examination to Primary Health Centre, Mohindergarh. He searched for the accused. On 19.12.2001, Inspector Daya Ram (PW14) arrested accused Krishan Kumar, Virender , Yashwant (appellants in Crl. Appeal No.263-DB of 2006) and Aklesh (appellant in Crl. Appeal No. 264 of 2006). They were interrogated. Krishan Kumar made a disclosure statement Ex.PN. Aklesh made a disclosure statement Ex.PP. All the four accused i.e. Krishan Kumar, Virender @ Devender , Yashwant and Aklesh jointly made Nishandehi i.e. demarcation by pointing out the place of occurrence and memo in this regard Ex.PQ was recorded which was prepared by Inspector Daya Ram (PW14) and was signed by the said accused. A rough site plan Ex.PR of the place of occurrence was prepared by Inspector Daya Ram Crl. Appeal No. 263-DB of 2006 and [6] Crl. Appeal No. 264-DB of 2006 (PW14). Krishan Kumar accused got a torch recovered which was taken in possession vide memo Ex.PO. A rough site plan of the place of recovery of torch (Ex.PO/1) was prepared. The accused Aklesh got recovered a pair of slippers in respect of which memo Ex. PH was prepared. The clothes of the deceased were taken in possession on 19.12.2001 vide memo Ex. PF. Inspector Daya Ram (PW14) recorded statements of the other witnesses. Thereafter, investigation of the case was handed over to SI Laxmi Narain (PW9). SI Laxmi Narain (PW9) arrested Ram Chander (appellant No.1) accused in this case. He was interrogated in the presence of Mam Chand and Ram Sarup. On interrogation, he deposed that he concealed a lathi below a heap of fire-wood about which no one else knew. He offered to get the lathi recovered. His disclosure statement Ex.PJ was recorded which was signed by Ram Chander accused and attested by Mam Chand and Ram Sarup PWs. In pursuance of the said disclosure statement, accused Ram Chander got recovered a lathi concealed below a heap of fire-wood in his plot. The lathi was measured and a sealed parcel was made. A rough sketch Ex.PJ/1 was also prepared. The lathi was taken in possession vide recovery memo Ex.PK. The sketch and the recovery memo were attested by Mam Chand and Ram Sarup. The lathi (Ex.P11) was identified by SI Laxmi Narain (PW9) in Court. A rough site plan of the place of recovery was Ex.PL was also prepared. The lathi (Ex.P11) was handed over to the MHC with seals intact. On the completion of investigation the final report of the case was prepared by Laxmi Narain (PW9) on 21.1.2002 which was filed in the Court of learned Judicial Magistrate Ist Class, Mohindergarh against the accused Ram Chander, Yashwant, Devender @ Virender and Krishan Kumar sons of Prabhu Dayal and Aklesh son of Hari Singh. The learned Judicial Magistrate Ist Class in pursuance of his order dated 6.2.2002 Crl. Appeal No. 263-DB of 2006 and [7] Crl. Appeal No. 264-DB of 2006 held that since the challan for committing the offences under Sections 302/34 and 120-B IPC had been filed which was exclusively triable by the Court of learned Sessions Judge, Narnaul, the case be committed to the said Court. The accused were directed to appear before the learned Sessions Judge, Narnaul on 20.2.2002 and the file was ordered to be sent to the Court of learned Sessions Judge. The learned Additional Sessions Judge to whom the case was assigned, charge-sheeted the accused on 16.3.2002 on the allegations that on the intervening night of 16/17.12.2001 in the area of village Sihore, Aklesh son of Hari Ram accused criminally conspired with his co-accused Ramchander, Yashwant, Devender @ Virender and Krishan Kumar sons of Prabhu Dayal to kill Rambir which was an illegal act and besides, by the above said agreement they did some act in pursuance of the said agreement and committed the murder of Rambir which was punishable with death or imprisonment for life and thereby they committed an offence punishable under Section 120-B IPC and within his cognizance. Secondly, on the same day, time and place , the aforesaid accused knowing or having reason to believe that offence of murder punishable with death or imprisonment for life had been committed, caused certain evidence connected with the said offence of murder to disappear with intention to screen themselves from legal punishment and thereby committed an offence punishable under Section 201 read with Section 120-B IPC. Thirdly, on the same day, time and place all the above named accused committed murder by intentionally causing the death of Rambir and thereby committed an offence punishable under Section 302 read with Section 120-B IPC within his cognizance. All the accused were directed to face trial. The prosecution in order to prove its case examined Ram Singh (PW1) on 23.12.2002. After recording the statement of Ram Singh (PW1), the prosecution filed an Crl. Appeal No. 263-DB of 2006 and [8] Crl. Appeal No. 264-DB of 2006 application under Section 319 of the Code of Criminal Procedure ("CrPC" - for short) for summoning Raju @ Raj Kumar son of Nathu Ram resident of Baldhan Kalan and Lalit Kumar son of Devender resident of Sihore as additional accused to stand trial along with the other five accused who were already facing trial in the case. The said two persons namely Raju @ Raj Kumar and Lalit Kumar, it was stated, were not challaned by the police, although their names were mentioned in column No.2 of the FIR. Ram Singh (PW1) who had appeared as a witness had named both the said two persons also as accused in the case. Raju son of Nathu Ram resident of Baldhan Kalan was stated to be the son in law of Prabhu Dayal (father of the appellants in Crl. Appeal No.263-DB of 2006). It is stated that Raju had several times asked Rambir (deceased) not to prosecute the case i.e. the case regarding the tractor being run over him (Ram Singh PW-1) or the matter be compromised between the parties otherwise he (Rambir) would be murdered. Besides, Lalit was also named as the person who along with the other accused had murdered Rambir after making preparations. The learned Additional Sessions Judge, Narnaul vide order dated 16.1.2003 observed that the prosecution had failed to make out a prima facie case for summoning Raju @ Raj Kumar and Lalit Kumar as additional accused to face trial in this case along with the accused already facing trial. Thus, the application under Section 319 CrPC moved by the prosecution being without any merit, was dismissed. In the trial of the case, as many as 15 prosecution witnesses were examined, besides documents were tendered in evidence. The prosecution evidence was closed on 10.7.2003 after giving up Ram Sarup being unnecessary. The additional evidence of the prosecution was closed on 13.2.2004 after tendering the Forensic Science Laboratory report (Ex.PU) having two pages and part thereof as Ex.PU/1. The statements of the accused in Crl. Appeal No. 263-DB of 2006 and [9] Crl. Appeal No. 264-DB of 2006 terms of Section 313 CrPC were recorded in which the accused Ram Chander, Yashwant, Devender @ Virender and Krishan Kumar sons of Prabhu Dayal stated that they were innocent and had been falsely implicated in the case due to their civil and criminal litigation with the complainant. Aklesh in his statement under Section 313 CrPC stated that he was innocent and had been falsely implicated in the case. No evidence was led in the defence. The learned Additional Sessions Judge, Narnaul vide judgment and order dated 22.3.2006 has sentenced the appellants/appellant in the two appeals i.e. Crl. Appeal Nos.263-DB and 264-DB of 2006 to undergo imprisonment for life and to pay a fine of Rs.5,000/- each for the commission of offence punishable under Section 302 read with Section 120-B IPC. Besides, in default of payment of fine, the defaulter convict to undergo further rigorous imprisonment for a period of three months each. The period already undergone by the convicts during the trial it was ordered shall be set off, as provided by the provisions of Section 428 CrPC. The respective appellants in the two appeals aggrieved against the order dated 22.3.2006 passed by the learned Additional Sessions Judge, Narnaul have filed the present appeals.
Sh. Vinod Ghai, Advocate appearing for the appellants in Crl. Appeal No. 263-DB of 2006 and Sh. N.S. Shekhawat, Advocate appearing for the appellant Aklesh in Crl. Appeal No. 264-DB of 2006 have submitted that the case against the appellants is based on circumstantial evidence which does not establish the guilt of the accused beyond reasonable shadow of doubt. Besides, it is submitted that the prosecution witnesses are all interested witnesses inasmuch as the complainant Ram Niwas (PW8) is the brother of Rambir (deceased). Ram Singh (PW1) is the uncle of the complainant Ram Niwas (PW8) and Rambir (deceased). He is the father's brother of Ram Niwas (PW8) Crl. Appeal No. 263-DB of 2006 and [10] Crl. Appeal No. 264-DB of 2006 and Rambir (deceased). Pawan Kumar (PW11) is the son of Ram Singh (PW1) and Ashok Kumar (PW12) is the son of Hari Ram who is also the brother of the father of Ram Niwas (PW8) and Rambir (deceased). Therefore, it is submitted that all the witnesses are interested witnesses and no reliance can be placed on the testimony of the said witnesses. The pointing out of the place of occurrence where the murder is said to have taken place by way of 'nishandehi' also it is submitted that it does not result in specific recovery of any article except for the lathi and such evidence, it is submitted, is inadmissible.
It is submitted by Sh. Vinod Ghai, Advocate for the appellants in Crl. Appeal No. 263-DB of 2006 that in any case no disclosure statement is stated to have been made and no recoveries have been effected from Devender @ Virender and Yaswant appellants. Besides, it is submitted that the motive is also weak inasmuch as the motive that has been alleged is that somebody had throttled Rambir (deceased) from his shirt and the complainant Ram Niwas (PW8) had suspected Raju son of Nathu Ram and Virender @ Devender , Ram Chander, Yaswant, Krishan Kumar sons of Prabhu Dayal as also Lalit son of Devender . Therefore, it is submitted that the prosecution case is based merely on suspicion from which it cannot be said that the appellants had committed murder of Rambir.
Sh. N.S. Shekhawat, Advocate, learned counsel appearing for the appellant Aklesh in Crl. Appeal No.264-DB of 2006 has further contended that Aklesh (appellant) is not named as an accused in the FIR and recovery of slippers has been shown to be effected from him and otherwise there is nothing on record to show that he was involved in the murder of Rambir. It is submitted that Pawan Kumar (PW11) had introduced Aklesh (appellant) for the first time alleging that the unknown person who had come on 16.12.2001 and asked for Crl. Appeal No. 263-DB of 2006 and [11] Crl. Appeal No. 264-DB of 2006 Rambir was Aklesh as he (Pawan Kumar -PW11) had come out and seen that Aklesh accused was there and he knew him very-well from prior to the incident. It is submitted that the statement of Pawan Kumar (PW11) that he knew Aklesh very well is clearly an afterthought inasmuch as there is no such allegation of the complainant Ram Niwas (PW8) in the FIR. Besides, it is submitted that the only recovery from the appellant Aklesh is in pursuance of his disclosure statement Ex.PP, wherein the manner in which the murder of Rambir (deceased) is alleged to have been committed is mentioned which, it is submitted, is inadmissible in evidence. Besides, it is alleged by appellant Aklesh that at the time of the incident his slippers came off and he had put on the slippers of Rambir (deceased) which he had concealed on the way going towards the village and he could get them recovered and the slippers Ex.P9 and Ex.P10 are stated to have been got recovered which, it is submitted, is highly improbable. It is submitted by both the learned counsel appearing for the respective appellants that they are liable to be acquitted after setting aside the impugned judgment and order.
In response, Mr. H.S. Sran, learned Additional A.G. Haryana appearing for the State has submitted that the prosecution has proved its case against the appellants in the two appeals beyond shadow of reasonable doubt. It is submitted that even though the case is based on circumstantial evidence, however, the prosecution has been able to establish the complete chain of circumstances which establishes the guilt of the appellants. It is submitted that the disclosure statements made by the appellants have led to the recoveries being effected. Besides, it has come on record that Aklesh had called the deceased - Rambir on 16.12.2001 and he was killed being a soft target. It is submitted that at the most it can be said to be a case of defective investigation, Crl. Appeal No. 263-DB of 2006 and [12] Crl. Appeal No. 264-DB of 2006 which does not warrant the setting aside of the well-reasoned order passed by the learned trial Court. Therefore, it is submitted that the contentions as raised by the learned counsel for the appellants in the two appeals are devoid of any merit and the appeals are liable to be dismissed.
I have given my thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the records of the case. The present case indeed is one of circumstantial evidence. In respect of circumstantial evidence it is well-known that it must be of such a nature so as to exclude any other inference except that of guilt advanced by the prosecution to sustain the conviction. A complete chain of circumstances which rules out every other possibility except the guilt of the accused has to be established. In order to appreciate the case of the prosecution, the following pedigree table of the deceased and his relations to the prosecution witnesses may be noticed:-
Chet Ram ______________________________________________________ | | | Jabbar Singh Hari Ram Ram Singh | | (PW1) | | | _____________________ | Pawan Kumar | | | (PW11) Ram Niwas Rambir | (PW8) (deceased) | Ashok (PW12) A perusal of the above shows that Ram Niwas (PW8) -
complainant is the brother of Rambir (deceased), both being sons of Jabbar. Besides, Ashok Kumar (PW12), who is a witness to recovery, is the son of Hari Ram, who is father's brother of Ram Niwas (PW8) - complainant and Rambir (deceased). Ram Singh (PW1) is also father's brother of the complainant and the deceased and Pawan Kumar (PW11) is son of Ram Singh (PW1). Ram Crl. Appeal No. 263-DB of 2006 and [13] Crl. Appeal No. 264-DB of 2006 Niwas complainant (PW8) while appearing in Court has reiterated his statement Ex.PG on the basis of which FIR Ex.PE was registered. In his statement in Court it is stated that in their opinion Rambir (deceased) was murdered and he suspected the hand of Raju @ Raj Kumar son of Nathu Ram resident of Baldhan Kalan, besides, he also suspected the involvement of Virender @ Devender , Yashwant, Ram Chander and Krishan Kumar sons of Prabhu Dayal and Lalit Kumar son of Devender in committing the murder of Rambir. The reason for this which has been given is that three years ago i.e. on 1.5.1999 Devender @ Virender son of Prabhu Dayal had driven the tractor over of his uncle Ram Singh (PW1) with an intention to kill him. Rambir (deceased) used to prosecute (sic. pursue) the case against Devender @ Virender regarding the aforesaid incident in respect of which a case under Section 307 IPC had been registered which was pending in the Court. Raju @ Raj Kumar son of Nathu Ram accused had two-three times earlier threatened that Rambir (deceased) should stop prosecuting (sic. pursuing) the case against Devender @ Virender under Section 307 IPC or he should get the matter between the parties compromised, otherwise, he would be murdered. On 16.12.2001, the marriage of grand daughter of Prabhu Dayal who is the father of the four appellants in Crl. Appeal No.263-DB of 2006 was to be solemnized. For the said occasion Raju @ Raj Kumar son of Nathu Lal who is the son-in-law of Prabhu Dayal had come to village Sihore to attend the marriage. Complainant Ram Niwas (PW8) was cross-examined and he was confronted with his statement Ex.PG with regard to the discrepancies and the contradictions. He (Ram Niwas PW8) had told the police that the Pyjama of Rambir (deceased) was lying around his neck which was not so recorded in his statement (Ex.PG). Besides, he had also told the police that Rambir (deceased) was having signs of injuries of lathis on his legs. Crl. Appeal No. 263-DB of 2006 and [14] Crl. Appeal No. 264-DB of 2006 He was confronted with his statement Ex.PG in which this aspect was not so recorded. He also told the police that information of the deceased was given to the Sarpanch of village Sihore. He was confronted with his statement (Ex.PG) in which this was not so recorded. As regards the case under Section 307 IPC against Devender @ Virender, Yashwant and Sunita wife of Ram Chander it is stated that Rambir (deceased) and one doctor remained to be examined before 16.12.2001. In the said case under Section 307 IPC before 16.12.2001, the complainant Ram Niwas (PW8) himself , Ram Singh, Subey Singh and Ram Sarup were examined. He denied the suggestion that in the said case Rambir (deceased) was not left to be examined by 16.12.2001.
Ram Singh (PW1) who is the father's brother of the complainant
- Ram Niwas (PW8) and Rambir (deceased) has supported the prosecution case. It is stated that on 16.12.2001 at about 7/7.30 p.m., his nephew Rambir @ Prithvi (deceased) was present at his house situated near the tubewell in their field. His son Pawan (PW11) was also residing in the 'kothri' (construct shed) on the tubewell in the field. One Aklesh (appellant in Crl. Appeal No. 264-DB of 2006) came to the house of Rambir (deceased) and called him outside the house, but in the meanwhile his son Pawan asked Aklesh as to what the matter was. It is stated that Aklesh appellant was not present in Court and again said that he was in the Court behind the other accused. It is recorded that the witness had clearly identified accused Aklesh in the Court. It is further stated that in the meanwhile Rambir (deceased) also came out of his house. He was also present there at that time. Aklesh accused and nephew of Ram Singh (PW1) namely Rambir (deceased) went towards village Sihore. In the evening Rambir (deceased) did not return home. They thought that he (Rambir - deceased) would be irrigating the fields as he had taken land on 'batai' from some other Crl. Appeal No. 263-DB of 2006 and [15] Crl. Appeal No. 264-DB of 2006 persons. On the next day in the morning, Ram Singh (PW1) went to the said field but he did not find Rambir (deceased) there. He was searching for Rambir (deceased) there. At that time, Ram Niwas (PW8) and Som Dutt told him that Rambir was lying in the field of Chandgi Ram son of Umrav. It is stated that complainant - Ram Niwas (PW8) is his nephew being the son of his brother Jhabar Singh, he (Ram Singh) went to Sarpanch Omparkash @ Partap Singh and told him that his nephew had been murdered. When he was returning after seeing the Sarpanch, Sish Ram son of Chhote Lal had met him and told him that Rambir (deceased) along with Aklesh and Krishan on the previous night were sitting near his house. He also said that while talking all the three had gone towards the house of one Prabhu son of Kalu Ram resident of Sihore. Prabhu was having enmity with them for sometime past because accused Devender @ Virender had tried to kill him by driving his tractor over him. The criminal case regarding the said incident was pending against him (Devender @ Virender ) under Section 307 IPC at his instance. Rambir @ Prithvi (deceased) used to pursue the case under Section 307 IPC against Devender @ Virender because he was unable to move. Rambir (deceased) was also a witness to the said occurrence. Raju son of Nathu Ram who is the son- in-law of Prabhu Dayal the father of Devender @ Virender had asked Rambir (deceased) several times that he should not pursue the case and the matter be compromised between the parties. Otherwise, he would be murdered. In cross-examination it is accepted by Ram Singh (PW1) that he had not seen the occurrence of killing Rambir (deceased).
Dr. Rakesh Sharma, Medical Officer, General Hospital, Narnaul (PW2) stated that on 18.12.2001, he along with Dr. Brijpal Gupta and Sanjay Bishnoi conducted post mortem on the dead body of Rambir (deceased). The Crl. Appeal No. 263-DB of 2006 and [16] Crl. Appeal No. 264-DB of 2006 length of the body was 5'8" and mark of ligature is mentioned as nil. Besides, there were four contusions on the left side of neck measuring 1.5 x 1 cm, 2 x 1 cm, 2 x 1 cm and 1.2 x 4 cm, which were placed 2.5 cm below and medial to angle of mandible. They were placed obliquely and outwards. The colour of contusions were blue and they were 1 cm apart from each other. Besides, there was a bluish contusion 3.5 x 1.8 cm just below the angle of mandible on left side of neck. There were four bluish contusions on left side of neck placed obliquely downward. Their sizes are 2.1cm, 1 x 1 cm, 1.5 x 1 cm and 1 x 1 cm. All the contusions were .8 cm apart from each other. On dissection, the subcutaneous tissues were eccymobed. There were rupture of underlying muscle fibre and fracture of left cornu of hyoid bone and fracture of larynx and trachea were seen. There was a bluish contusion of 3 x 2 cm on right side of chest on dissection underlying 7th and 8th ribs were fractured. There was a bluish contusion 3 x 1.5 cm on left side of chest and the underlying 8th and 9th ribs were fractured. There was an abrasion 2 x 1 cm on right knee with clotted blood. There was an abrasion 3 x 2 cm on left knee with clotted blood. In the opinion of the doctor, the cause of the death in the case was asphyxia as a result of throttling which was ante-mortem in nature and sufficient to cause death in the ordinary course of death. All the injuries were ante-mortem in nature. In cross-examination it is stated by Dr Rakesh Sharma (PW2) that it is correct that if clothes are put around the neck of any human being and is pulled from both sides by two persons, there would certainly be ligature marks over the neck. It is accepted as correct that there was no ligature mark present on the neck.
Pawan Kumar (PW11) is the witness who identified the unidentified person as Aklesh who came and asked for Rambir (deceased) on 16.12.2001 a day earlier to the dead body of Rambir being found. It is stated by Crl. Appeal No. 263-DB of 2006 and [17] Crl. Appeal No. 264-DB of 2006 Pawan Kumar (PW11) that on 16.12.2001 at about 7/7.30 p.m. he was studying in the 'kothri' (constructed shed) of their tubewell and someone called from outside saying "Rambir - Rambir". He came out and saw that Aklesh accused was there. He knew Aklesh very well prior to the incident. Aklesh asked Pawan Kumar (PW11) to call Rambir (deceased). He was holding a torch in his hand. Pawan Kumar went inside and gave a call to Rambir (deceased). He told Rambir (deceased) that Aklesh was calling him upon that Rambir (deceased) came out. Thereafter, there was some talk between Rambir (deceased) and Aklesh. Then they both went towards village Sihore. On the next day, they found the dead body of Rambir which was pointed out by Som Dutt and Ram Niwas (PW8). Police recorded his statement on 17.12.2001. In cross- examination, it is stated that he came to know about the death of Rambir (deceased) at about 7/7.30 am on 17.12.2001. He went to the place where dead body was lying at about 8/8.30 am. About 150/200 people from the village were present there. His father Ram Singh (PW1) and Ram Niwas (PW8) were also among those persons. He (Pawan Kumar PW-11) did not talk with Ram Niwas (PW8) and he did not tell Ram Niwas (PW8) that Rambir (deceased) had gone with Aklesh on the previous evening. Police had reached the spot at 9 a.m. Pawan Kumar (PW-11) did not tell anybody before the arrival of the police that Rambir and Aklesh had gone together on the last evening. Police had recorded his statement at about 10.00 am. He had told the police that Aklesh had come on 16.12.2001 to call Rambir (deceased). He was confronted with his statement (Ex.DC) where the name of Aklesh was not mentioned. He also stated that he had told the police in his statement Ex.DC that he knew Aklesh very well prior to the incident. He was confronted with Ex.DC where it was not so recorded. He had told the police that Aklesh was holding a torch in his hand. He was Crl. Appeal No. 263-DB of 2006 and [18] Crl. Appeal No. 264-DB of 2006 confronted with Ex.DC where it was not so recorded. It was further stated by him that he did not tell the police that some unknown person had come to their tubewell on 16.12.2001 to call Rambir (deceased). He was confronted with the statement Ex.DC portion A to A where it was so recorded. He did not tell the police that Rambir and said unknown person went towards village while talking. He was confronted with portion B to B of his statement Ex.DC where it was so recorded.
Ashok Kumar (PW12) is the son of Hari Ram who is the father's brother of Ram Niwas (PW8) and Rambir (deceased). It is stated by him that on 19.12.2001, he along with Nityanand went to the Police Station Kanina as his brother Rambir (deceased) had been murdered. On that day, in their presence, the police interrogated accused Krishan Kumar present in the Court and he made a disclosure statement Ex.PN. In pursuance of the said disclosure statement, a torch chargeable with the help of electricity was recovered from the disclosed place i.e. below the bridge of the dirty drain. The torch was taken in possession vide memo Ex.PO which was signed by him and Nityanand, besides the police officials. The accused Krishan Kumar had also signed the disclosure statement Ex.PN in their presence. A sealed parcel had been opened and torch (Ex.P12) was taken out and was identified by the witnesses to be the same which was got recovered by accused Krishan Kumar. Aklesh accused was also interrogated by the police in the presence of Ashok Kumar (PW12) and Nityanand. He also made a disclosure statement (Ex.PP). Ashok Kumar (PW12) and Nityanand had also signed that memo. In pursuance of the disclosure statement (Ex.PP), Aklesh got recovered one pair of slippers from the disclosed place i.e. muddy place on the way leading from village Sihore to Bahuwa. These slippers were also made into parcel and taken in possession vide memo Ex.PH, which bears Crl. Appeal No. 263-DB of 2006 and [19] Crl. Appeal No. 264-DB of 2006 the signatures of Ashok Kumar (PW12) and Nityanand. The slippers Ex.P9 and Ex.P10 were the same slippers. The slippers were identified by Ashok Kumar's (PW12) cousin - Ram Niwas (PW8) who was also present at the spot.
The case, therefore, is based on the disclosures and recoveries i.e. recovery of torch (Ex.P12) from Krishan Kumar and recovery of slippers of the deceased Rambir from Aklesh. There is no disclosure and no recovery qua Devender @ Virender and Yaswant. It may be noticed that the case was initially investigated by Parbhati Lal SI (PW15) who as already noticed had recorded the statement (Ex.PG) of complainant Ram Niwas (PW8) on which he made his endorsement Ex.PG/1. The same was sent for registering the case on the basis of which a formal FIR was registered. He also prepared inquest report (Ex.PS) and the rough site plan (Ex.PT). He also sent request to the doctor (Ex.PB) for conducting post mortem on the dead body of Rambir (deceased). The investigation was then taken over by Inspector Daya Ram (PW14). According to him, he recorded the disclosure statement (Ex.PP) of Aklesh. It is stated that all the four accused jointly made 'nishandehi' of the place of occurrence i.e. demarcation regarding pointing out the place of occurrence and memo (Ex.PQ) in this regard was prepared which bears their signatures. The memo of 'nishandehi' (demarcation of the spot) Ex.PQ records that in the presence of the witnesses i.e. Ashok Kumar (PW12) and Nityanand, demarcation of the place of occurrence was pointed out by the accused Krishan Kumar at the first instance. After that it was demarcated by accused Aklesh, Yashwant and Devender @ Virender. All the accused had demarcated the place occurrence in the plot of Ex-Sarpanch Prabhu Dayal and admitted to have killed Rambir near the 'kikar' tree. Memos of demarcation of the occurrence were prepared separately. The witnesses put their signatures on the memo. The Crl. Appeal No. 263-DB of 2006 and [20] Crl. Appeal No. 264-DB of 2006 demarcation memo Ex.PQ is in the nature of a confession by the accused while they were in Police custody. Therefore, the same is to be excluded from evidence. The law does not permit the admission of such a confession in view of the provisions of Section 25 of the Evidence Act, 1872 nor is such a confession admissible in terms of the conditions prescribed by Section 27 of the Evidence Act. For the application of Section 27, the statement is to be split into its components so as to separate the admissible portion. Only those components or portions which are the immediate cause of the discovery inconsequence of the information received would be legal evidence and not the rest which are to be excluded. A fact discovered in an information supplied by the accused in his disclosure statement, is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused which was not in the knowledge of the police before recording the disclosure statement of the accused. Nothing has been brought on record to show that the demarcation of the place of occurrence was discovery of a new fact, which was not in the knowledge of the police. Even otherwise, the demarcation of the place of occurrence is not followed by recovery of any incriminating article so as to provide a link in the chain of circumstances. Besides, any discovery on the basis of information given by an accused is not by itself such a circumstance so as to establish the case of the prosecution. In fact the discovery in pursuance of a disclosure statement under Section 27 of the Evidence Act provides a link for the prosecution to complete its chain of circumstances. It is seldom the foundation of the prosecution case. It may be noticed that the site plan Ex.PL of the place of recovery of lathi is prepared on 28.12.2001 by SI Laxmi Narain (PW9). The site plan of the demarcation of the place of occurrence is Ex.PQ and is prepared by Inspector Daya Ram (PW14). Inspector Daya Ram (PW14) Crl. Appeal No. 263-DB of 2006 and [21] Crl. Appeal No. 264-DB of 2006 states that he had seen the site plans Ex.PL prepared by SI Laxmi Narain (PW9) and Ex.PR prepared by him. It is stated that both the site plans were of the same place. It is accepted as correct that in the site plan (Ex PL) Laxmi Narain had shown the heap of fuel wood lying in the plot of Prabhu Dayal but in the site plan (Ex PR) prepared by him (Daya Ram PW14), he had not shown the same and had shown a heap of sand. The lathi Ex.P11 is shown to have been recovered from under the heap of firewood in pursuance of recovery memo (Ex Pk). The lathi was recovered on the disclosure statement (Ex PJ) of Ram Chander from his plot, which is the place of occurrence. However, on 19.12.2001 when the demarcation of the place of occurrence is done in pursuance of Ex PQ, the lathi was not recovered which is recovered later on 28.12.2001 (Ex PK). In the site plan (Ex.PR) prepared by Inspector Daya Ram (PW14) on 19.12.2001 in the vacant plot of Prabhu Dayal the point mark 'A' is depicted as the place where the accused had beaten Rambir (deceased). At the said place, a heap of sand is shown. In the site plan Ex.PL prepared by SI Laxmi Narain (PW9) the place from where a lathi is shown as is recovered at the place mark 'A' which is same as in Ex.PR, however, a heap of fuel wood is shown to be lying. In the circumstances, the recovery of lathi (Ex P11) even is doubtful.
Even the other recoveries that have been made are on the basis of the disclosure statements of Krishan Kumar and Aklesh. Krishan Kumar made a disclosure statement Ex.PN which was attested by Inspector Daya Ram (PW14). Aklesh made a disclosure statement Ex.PP. Besides, Krishan Kumar, Virender @ Devender, Yashwant and Aklesh jointly made a 'nishandehi' of the place of occurrence Ex.PQ. Ram Chander made a disclosure statement Ex.PJ regarding concealment of a lathi under the heap of fuel wood. In the disclosure statement Crl. Appeal No. 263-DB of 2006 and [22] Crl. Appeal No. 264-DB of 2006 Ex.PN of Krishan Kumar, the manner in which the occurrence had taken place is narrated. However, the said portion being inadmissible in evidence is not to be taken into consideration. The aspect which, however, needs to be noticed is that it is stated by Krishan Kumar that after the occurrence he had concealed a torch near 'pulia' (small bridge) in the drainage of the village about which none else except he himself knew about. He could get the torch recovered. In pursuance of the said disclosure statement (Ex.PN), the torch was recovered vide recovery memo Ex.PO. In terms of the disclosure statement (Ex.PP) of Aklesh again the entire incident in the manner in which it occurred has been narrated. The aspect which needs to be noticed is that it is stated by Aklesh that during the incident his slippers came off and he had put on the slippers of Rambir (deceased) which he had concealed on the way going towards the village and he could get them recovered. In terms of recovery memo Ex.PH, an old pair of slippers bluish in colour were recovered on the unmettled pathway which goes to village Sihore to Bahuwa which had been concealed beneath the soil on the Northern side of the passage. On seeing the slippers Ram Niwas (PW8) identified them to be those of his brother. Ram Chander made a disclosure statement (Ex.PJ) in which he had narrated the manner in which the occurrence took place. The same is also not to be taken into account as it was made while Ram Chander was in police custody. However, it may be noticed that he had disclosed that he inflicted injuries to Rambir (deceased) with a lathi which was concealed under the fuel wood in his plot about which none else but only he knew. In pursuance of the recovery memo Ex.PK, a lathi (Ex.P11) was recovered. The said recoveries i.e. torch, a pair of slippers and a lathi in fact hardly advances the case of the prosecution and these in any case cannot be taken as substantive evidence. These at the most are only corroborative evidence and in the absence of Crl. Appeal No. 263-DB of 2006 and [23] Crl. Appeal No. 264-DB of 2006 substantive evidence it would be wholly unsafe to place reliance on such recoveries. Besides, qua Devender @ Virender and Yashwant, no recoveries have been made. The witness of recovery memo Ex.PH of slippers is Ram Niwas complainant (PW8) and Nityanand. The witness of the disclosure statement Ex.PJ of Ram Chander is Mam Chand (PW13) and Ram Sarup. The witness of recovery memo Ex.PK of lathi is Mam Chand (PW13) and Ram Sarup. The witness of the disclosure statement Ex.PN of Krishan Kumar is Ashok son of Hari Ram (PW12) and Nityanand. The witness of recovery memo Ex.PO of torch is Ashok Kumar (PW12) and Nityanand. The witness of disclosure statement Ex.PP of Aklesh is Ashok Kumar (PW12) and Nityanand. The witness of memo of demarcation of spot (Ex.PQ) is Nityanand and Ashok Kumar (PW12). Therefore, it is primarily Ashok Kumar (PW12) and Nityanand who are witnesses of the recovery, besides, Mam Chand (PW13). Nityanand has not been examined in the case. Mam Chand (PW13) has stated that in his presence Ram Chander accused made a disclosure statement Ex.PJ to the effect that he had concealed a lathi under a heap of fuel wood which he could get recovered. The lathi (Ex.P11) was recovered which was taken in possession vide memo Ex.PK which also bears the signatures of Mam Chand (PW13). In cross examination it is accepted as correct that a criminal case was registered by one Balbir of village Sihore against him (Mam Chand - PW13), Nityanand Lambardar, Siri Ram and the then Naib Tehsildar Kanina for the offences under Sections 420 IPC etc. Therefore, Mam Chand (PW13) is a co-accused with Nityanand in a case under Section 420 IPC. To a suggestion it is stated by Mam Chand (PW13) that he did not know if accused Jaswant @ Yaswant, Ram Chander etc. sons of Prabhu Dayal had filed a civil suit against Ram Sarup son of Bihari Lal who is a witness in this case. It is, however, stated as correct that Crl. Appeal No. 263-DB of 2006 and [24] Crl. Appeal No. 264-DB of 2006 in the said case, he (Mam Chand - PW13) had appeared as a witness of Ram Sarup son of Bihari Lal on 6.3.1996 in the Court at Mohindergarh. He, however, did not know if that case was filed by the accused persons against Ram Sarup. Ashok Kumar (PW12) has deposed that on 19.12.2001, he along with Nityanand went to the Police Station Kanyana as his brother Rambir (deceased) had been murdered. In his presence, the police interrogated Krishan Kumar accused who made a disclosure statement (Ex.PN). In pursuance of the said statement, a torch chargeable with the electricity was recovered from the disclosed place i.e. under the bridge of dirty drain which was taken in possession vide memo Ex.PO. The memo was signed by him and Nityanand, besides the police officials. He identified the torch (Ex.P12). Aklesh accused was also interrogated by the police in his (Nityanand's) presence. Aklesh also made a disclosure statement Ex.PP on which Ashok Kumar (PW12) and Nityanand had signed. In pursuance of the disclosure statement, Aklesh got a pair of slippers recovered from the disclosed place on the way leading village Sihore to Bahuwa. The slippers were taken in possession vide memo Ex.PH. He identified the slippers Ex.P9 and Ex.P10. The slippers were identified by Ram Niwas (PW8) brother of Rambir (deceased). In cross examination, it is stated that Krishan Kumar accused made a disclosure statement within 15 -20 minutes of his interrogation by the police. However, Aklesh made his disclosure statement within 10 minutes of his interrogation. The police along with them had started from Police Station for effecting the recoveries in pursuance of the disclosure statements of the accused Krishan Kumar and Aklesh. They went to the spot by police Jeep. He (Ashok Kumar - PW12) did not remember the police officials accompanying them at that time. He could not tell if their number was 1, 2, 3, 4 or 10. He did not know the official Crl. Appeal No. 263-DB of 2006 and [25] Crl. Appeal No. 264-DB of 2006 heading the police party. He did not know about his rank in the police. He could be even a Constable or Superintendent of Police. They first went to the dirty drain bridge from where Krishan Kumar accused got the torch recovered. It is further stated that several villagers had also gathered at the time of recovery of slippers of accused Aklesh. It is stated as correct that the torch like that of Ex.P12 and the slippers Ex. P9 and Ex.P10 were commonly available in the market. It may be noticed that Ashok Kumar (PW12) is related to the complainant Ram Niwas (PW8) and the deceased Rambir. In cross examination, it is accepted that Jhabar is the father of Ram Niwas (PW8), besides Jhabar is the brother of Hari Ram. Therefore, Ashok Kumar (PW12) is the father's brother's son of the complainant Ram Niwas (PW8) and the deceased Rambir, sons of Jhabar. Besides, he is resident of Baldhan Khurd which is a different village from where the recoveries were effected and the disclosure statements recorded. He could not tell the number of police officials who had accompanied them for the recoveries to be effected and as to who was heading the police party and what was his rank. He had though stated the place of recovery of the torch (Ex.P12) but had not stated that the place of recovery of the slippers Ex.P9 and P10. According to Ashok Kumar (PW12) the interrogation of Krishan Kumar and Aklesh was done at the Police Station. He had gone to Police Station on his own and was not called by the Police. It is also stated that they went from the Police Station to effect recoveries. However, Inspector Daya Ram (PW14) stated in his cross examination that he arrested all the accused except Ram Chander from village on 19.12.2001. It is stated that the accused were interrogated at the place of their arrest in village Sihore and they suffered their disclosure statements there. It is further stated that the slippers were recovered from the common passage in between village Sihore and Crl. Appeal No. 263-DB of 2006 and [26] Crl. Appeal No. 264-DB of 2006 Bhuwa. The passage, it is stated, is used by the general public. Ashok Kumar (PW12) has, however, stated that the interrogation of Krishan Kumar and Aklesh was done in the Police Station. Therefore, there are discrepancies as regards the place of making of disclosure statements by the accused inasmuch as according to Ashok Kumar (PW12) the interrogation of Krishan Kumar and Aklesh was done at the Police Station where they made their disclosure statements. However, according to Inspector Daya Ram (PW14), the accused except for Ram Chander were arrested from their village Sihore on 19.12.2001 and the accused were interrogated at the place of their arrest in the village, where they suffered their disclosure statements. As such, the recoveries of the torch (Ex.P12) and slippers (Exs.P9 and P10) become somewhat doubtful. Ram Chander accused was arrested by SI Laxmi Narain (PW9) on 28.12.2001. It is stated by SI Laxmi Narain (PW9) that Ram Chander was interrogated in the presence of Mam Chand and Ram Sarup. On the disclosure statement Ex.PJ, a lathi (Ex.P11) was recovered which was taken in possession vide recovery memo Ex.PK. In cross examination, it is stated that the place of recovery of the lathi is an open place and is accessible to one and all. Besides, such types of lathis were available almost in every agricultural household. It was also stated that there was no special mark for identification of the lathi and there was no blood visible on the lathi. Therefore, the recovery of lathi which is commonly available also would not, in the circumstances, advance the case of the prosecution so as to hold that the prosecution case stands established beyond shadow of reasonable doubt. The defence has produced on record Ex.D2/1 which is the copy of statement of Mam Chand (PW13) when he appeared as DW1 in the suit for permanent injunction filed by Jaswant @ Yashwant, Ram Chander and Krishan Kumar sons of Prabhu Dayal against Ram Sarup and Crl. Appeal No. 263-DB of 2006 and [27] Crl. Appeal No. 264-DB of 2006 Balbir sons of Bihari Lal etc. Mam Chand (PW13) has appeared as a witness for Ram Sarup son of Bihari Lal who is one of the witness to the recoveries referred to above. The said Ram Sarup son of Bihari has not been examined as a witness in the present case. It has also come in the deposition of the complainant Ram Niwas (PW8) that a cross case for the offence under Section 307 IPC was pending against him, his father, Misri widow of Rambir (deceased), Bhanti wife of Ram Niwas complainant (PW8) and his mother Vidya Devi, Maya Devi wife of Ram Singh (PW1) and Pawan Kumar (PW11) which was fixed for 30.3.2003 in the Court. It is accepted as correct by Ram Niwas (PW8) that Ram Sarup son of Bihari Lal is a witness of the prosecution in the present case and he was also a witness from their side in the case under Section 307 IPC. It may also be noticed that insofar as the recovery of slippers Exs.P9 and P10 is concerned, it would seem highly improbable that the accused
- Aklesh would wear the slippers of the deceased as his own slippers, which are stated to have come off. It is the case of the prosecution that the slippers of Aklesh had come off. However, there is no mention of the slippers of Aklesh which are stated to have come off. SI Laxmi Narain (PW9) has stated that there was no blood visible on the lathi (Ex.P11) that was recovered. In any case, the lathi (Ex.P11) is not shown to have been even sent to the Forensic Science Laboratory.
As regards the motive, it may be noticed that according to the complainant Ram Niwas (PW8), he had suspected Raju @ Raj Kumar son of Nathu Ram resident of Baldhan Kalan who has not been sent up for trial, besides Virender @ Devender , Yashwant, Ram Chander and Krishan Kumar sons of Prabhu Dayal as also Lalit Kumar son of Devender who has also not sent up for trial as the accused who had committed the murder of Rambir. This Crl. Appeal No. 263-DB of 2006 and [28] Crl. Appeal No. 264-DB of 2006 was because three years ago i.e. on 1.5.1999 Devender @ Virender son of Prabhu Dayal had driven the tractor over his uncle Ram Singh (PW1) with an intention to kill him. Rambir (deceased) used to pursue the case against Devender @ Virender regarding the aforesaid incident for the offence under Section 307 IPC. Raju @ Raj Kumar had also threatened 2-3 times earlier that Rambir should stop pursuing the case against Devender @ Virender under Section 307 IPC. It may be noticed that Raju @ Raj Kumar is the brother-in-law of the appellants other than Aklesh. This would in a way give the impression that an attempt has been made to rope in the entire family of the appellants. In any case it may be noticed that the complainant Ram Niwas (PW8) had stated that in the case under Section 307 IPC, Rambir (deceased) and one doctor remained to be examined before 16.12.2001. Ram Niwas (PW8), Ram Singh (PW1), Subey Singh and Ram Sarup had already been examined in the said case. He did not know as to who were the other prosecution witnesses of the said case. He denied the suggestion that in the said case Rambir (deceased) was not left to be examined by 16.12.2001. Insofar as the occurrence of 1.5.1995 in which Virender @ Devender is stated to have run the tractor over Ram Singh (PW1) is concerned, the same in fact is not proximate to the incident of 16.12.2001 that had occurred in the present case. Therefore, even if there was a motive it was not proximate in time to the occurrence. It may however be noticed that the allegations of motive have not been put to the accused in their statements under Section 313 CrPC. The said provision has been enacted to enable the accused to explain any circumstances appearing in evidence against him. Even otherwise, it may be noticed that motive is a double-edged weapon. In State of Punjab v. Sucha Singh and Others, 2003 (2) RCR (Crl.) 766 (SC) with respect to motive it was observed that motive in a murder case when the Crl. Appeal No. 263-DB of 2006 and [29] Crl. Appeal No. 264-DB of 2006 basic foundation of the prosecution case has crumbled down, the motive becomes inconsequential. Besides, animosity is a double-edged sword and it could be a ground for false implication and also could be a ground for assault. It was further observed that motive, however, strong merely creates a suspicion and suspicion cannot take the place of proof of guilt. Therefore, evidently though motive however strong cannot take the place of actual proof. Besides, it cannot be made the sole basis for conviction. The case as has already been noticed is based on circumstantial evidence. However, circumstances leading to guilt of the accused have not been established beyond shadow of doubt. In K.T. Palanisamy v. State of Tamil Nadu, 2008 (1) RCR (Crl.) 870 (SC), it was held that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete as has been held in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 in the following terms :-
"1. the circumstances from which the conclusion of guilt is to be drawn should be fully established - Circumstances concerned "must" or "should" and not "may be"
established - There is legal distinction between "may be proved" and must be or should be proved.
2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
Crl. Appeal No. 263-DB of 2006 and [30]Crl. Appeal No. 264-DB of 2006
3. the circumstances should be of a conclusive nature and tendency.
4. they should exclude every possible hypothesis except the one to be proved, and
5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Therefore, the stand of the learned counsel for the State that all the accused were involved on the basis of the disclosure statements and Aklesh had called the deceased Rambir on 16.12.2001, who had been killed because he was a soft target are not of much significance. The contention of the learned counsel for the State that it was at the most was a case of defective investigation is also of not such a circumstance which would warrant the recording of a finding of guilt. The evidence and material on record which is based on circumstantial evidence, does not establish the guilt of the appellants.
From the above, it may be noticed that:-
(a) Aklesh is stated to have come on 16.12.2001 and called Rambir (deceased). This is on the statement of Pawan Kumar (PW11) made in Court. It is stated by Pawan Kumar (PW11) that he had known Aklesh earlier also. However, this aspect is not stated before the Police and it has come on record in the FIR that an unidentified person had come to the 'Kothri' (constructed shed) of the tubewell and called Rambir (deceased) and they chatted amongst themselves Crl. Appeal No. 263-DB of 2006 and [31] Crl. Appeal No. 264-DB of 2006 for sometime and then went away together towards the village.
Therefore, Aklesh has been named as the person who called Rambir (deceased) in the Court only.
(b) The recoveries in the case are doubtful. The torch (Ex PO) has been recovered on the disclosure statement (Ex PN) of Krishan Kumar. Besides, a pair of slippers (Exs P9 and P10) of Rambir (deceased) have been recovered on the disclosure statement (Ex PP) of Aklesh. According to Ashok Kumar (PW12), he had gone to Police Station Kanina and in his presence, the Police interrogated Krishan Kumar who made a disclosure statement (Ex PN) and also interrogated Aklesh who made a disclosure statement (Ex PP). However, according to Inspector Daya Ram (PW14), he had arrested Krishan Kumar and Aklesh as also Virender and Yashwant on 19.12.2001 in village Sihore and they were interrogated there and they made their disclosure statements also at the village. Therefore, the place where the disclosure statements are recorded of Krishan Kumar and Aklesh are different, which creates a doubt about their genuiness;
(c) The recovery of Lathi (Ex P11) on the disclosure statement (Ex PK) of Ram Chander is also doubtful as the said Lathi, it has come on record, is easily available in agricultural houses. Besides, the recovered Lathi has not been found to be blood-stained and neither was it sent to FSL for examination. The recoveries, as noticed, do not advance the case of the prosecution so as to establish the guilt of the appellants beyond shadow of doubt.
(d) The prosecution witnesses are close relatives and have not seen the actual occurrence. Even the witnesses of recovery, it has come on Crl. Appeal No. 263-DB of 2006 and [32] Crl. Appeal No. 264-DB of 2006 record, are associated with the prosecution witnesses in connected litigation between the appellants and the prosecution witnesses. Therefore, not much reliance can be placed on the said witnesses so as to establish the guilt of the appellants beyond shadow of doubt.
(e) The motive is a double-edged sword and it can be a ground for committing the murder as also a ground for false implication of the appellants. Besides, the motive, however strong, cannot take place of actual proof. Even otherwise, the case relating to the offence under Section 307 IPC against Virender @ Devender, Yashwant and Sunita wife of Ram Chander is of 1.5.1995 whereas the occurrence in the present case is of 16.12.2001. Therefore, the motive was not proximate in time to the occurrence in the present case. The fact that Rambir (deceased) was a witness in the case under Section 307 IPC relating to the occurrence of 1.5.1995, is also not of much consequence as it has not been stated as to what was to be established by Rambir (deceased) as regards the said occurrence. In other words, it is not shown as to whether he was an eye-witness to the occurrence who was to depose with respect to material facts and circumstances. For the foregoing circumstances, the appeals are liable to be accepted and the order of the trial Court set aside.
Accordingly, Crl. Appeal No.263-DB and Crl. Appeal No.264-DB of 2006 are allowed and the judgment and order of the trial Court dated 22.3.2006 is set aside.
(S.S. SARON)
JUDGE
2.9.2009 (RAKESH KUMAR JAIN)
amit JUDGE