Punjab-Haryana High Court
Criminal Appeal No.878-Db Of 2006 vs State Of Haryana on 10 December, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
Criminal Appeal No.878-DB of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. Criminal Appeal No.878-DB of 2006
Raj Roop and another ......Appellants
Versus
State of Haryana ......Respondent
And
2. Criminal Appeal No.880-DB of 2006
Hitesh ......Appellant
Versus
State of Haryana ......Respondent
And
3. Criminal Appeal No.922-DB of 2006
Smt. Kamla ......Appellant
Versus
State of Haryana ......Respondent
And
4. Criminal Revision No.464 of 2007
Jagminder ...... Petitioner
Versus
Hitesh and others ......Respondents
Date of Decision:10.12.2012
CORAM:- HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
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Present: Mr. U.K. Agnihotri, Advocate and
Ms. Sharmila Sharma, Advocate
for the appellants
(in Crl. Appeal Nos.878-DB and 880-DB of 2006)
Ms. Loveleen Dhaliwal, Advocate for
Mr. K.S. Dhaliwal, Advocate for the appellant
(in Crl. A. No.922-DB of 2006)
Mr. S.S. Patter, Sr. D.A.G. Haryana.
Mr. Depinder Singh, Advocate for the complainant.
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1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RAJIV NARAIN RAINA, J.
This order will dispose of Criminal Appeal Nos.878-DB, 880- Criminal Appeal No.878-DB of 2006 2 DB, 922-DB of 2006 and Criminal Revision No.464 of 2007 which was ordered to be heard along with Criminal Appeal No.880-DB of 2006.
Criminal Appeal No.880-DB of 2006 filed on behalf of the appellant-Hitesh stands abated since he died on 19.5.2008 while on parole.
The aforementioned appeals have been filed by Raj Roop son of Balbir Singh and Kuldeep son of Mahender Singh both residents of village Kasandi, District, Sonepat ( accused-appellants No.1 and 2 in Crl. A. No.878-DB of 2006) and Smt. Kamla wife of Amar Singh resident of village Sardhana, District Sonepat (accused-appellant in Crl. A. No.922-DB of 2006) against the judgment and order dated 30.10.2006/1.11.2006 of the learned Additional Sessions Judge, Sonepat, convicting the accused- appellants (for short "appellants") for the murder of Amar Singh and sentencing them as follows:
Appellants No.1 and 2/Raj Roop and Kuldeep in Crl. A. No.878-DB of 2006 Offence RI Fine Indefault imprisonment 302 IPC read with Life Rs 5000/- Three months Section 34 IPC Imprisonment Appellant/Kamla in Crl. A. No.922-DB of 2006 Offence RI Fine Indefault imprisonment 302 IPC read with Life Rs 5000/- Three months Section 120-B IPC Imprisonment Both the sentences were ordered to run concurrently.
Note.1: At the outset it may be mentioned that evidence recorded at the trial between 15.1.2003 and 29.5.2003 is not to be considered as evidence in view of the order passed by this Court vide order dated 29.5.2003 when the matter was transferred from one Court to another. Therefore, the cross examination of witnesses recorded between the aforesaid dates stand washed out.
Criminal Appeal No.878-DB of 2006 3Note.2: Accused-appellant/Kamla (in Criminal Appeal No.922-DB of 2006) was wife of the deceased Amar Singh. Accused-appellant/Hitesh (in Criminal Appeal No.880-DB of 2006) is the son of Kamla's sister and was resident of village Kasandi, District Sonepat. Kamla and Satwanti are sisters and Hitesh is a son of Satwanti.
The prosecution version as contained in FIR No.9 of 24.1.2002 registered on the complaint of Jagminder son of Moji Ram was he was one of six brothers and his elder brother Amar Singh deceased was living with his family separately since the last two decades but in the same village. Amar Singh is stated to have left his village 4-5 days before the date of death saying that he was going out to purchase a buffalo. He did not return. In the afternoon of 24.1.2002, Jagminder received information that a person is lying dead in the sugarcane fields of Ram Kishan at village Pugthala near Tewari road. On arriving on the scene alongwith co-villagers, he found his brother lying dead. His right eye and upper portion of left eye had been eaten by animals. There was a ligature mark on his neck and some marks of injuries on his right knee. Since he did not suspect anyone, the FIR was recorded on the basis of his statement against unknown persons.
The autopsy report confirmed that the cause of death was Asphyxia as a result of strangulation which was ante mortem and sufficient to cause death in the normal course of nature. Upon receipt of autopsy report, FIR was registered under Section 302/201 IPC at Police Station Ganaur.
The police started investigation. On 2.2.2002, Jeet Singh one of the six brothers of the deceased made a supplementary statement under Section 161 Cr.P.C. He stated that he suspected involvement of his sister- Criminal Appeal No.878-DB of 2006 4 in-law Kamla-appellant in the commission o0f crime and that she had got her husband murdered. In his statement before the police, he recalled that on 21.1.2002 at about 6:00 p.m., he was going to his village Sardhana on a bicycle from village Pugthala. When he saw his brother Amar Singh in the company of Hitesh-appellant and two other persons namely Raj Roop and Kuldeep-appellants, he asked his brother where he was going and he answered that he was going to village Pugthala to purchase a buffalo. The motive behind the murder was suspected to be money from a life insurance policy of the deceased.
On 18.2.2002, another brother of the deceased, namely, Satbir also made a supplementary statement recorded by the police under Section 161 Cr.P.C. that Kamla-appellant had confided in him that she had committed a blunder in causing the death of her husband. She disclosed to him that ten days prior to the recovery of the body, Amar Singh had come home after consuming liquor and had desired to have sex with her. She confided that she had been suffering from a menstrual problem for the last 4/5 years due to which she suffered excess bleeding and was fed up with her condition. Amar Singh deceased, however, continued relentlessly with his demand. He had been behaving like this on earlier occasions as well. She further confided in Satbir that Hitesh-appellant had visited and wanted to purchase a jeep for which he needed money. He asked her for money. She revealed to Hitesh-appellant that her uncle is has two insurance policies and if he would eliminate Amar Singh, he could have the compensation amount and use it to buy a jeep, whereupon Hitesh said that he would have the job done in 10 days which was not difficult. He would contract two boys of village Kasandi namely Raj Roop and Kuldeep-appellants on the pretext of Criminal Appeal No.878-DB of 2006 5 purchasing a buffalo and that she should send Amar Singh with them for buying cattle. After the job was done, they would report back to her to claim the insurance money which would be paid. Having made her confession before her brother-in-law, she asked him to hand her over to the police to save her from being beaten up. Kamla-appellant was arrested on 18.2.2002 as also the other accused the next day.
On 20.2.2002, accused Hitesh while in police remand made a disclosure statement that he murdered his uncle by strangulating him with rope upon which certain recoveries were made. This recovery memo was witnessed by Maha Singh, a first cousin of the deceased and Rohtash brother of the deceased. Relevant part of the recovery Ex.PF is reproduced as under:
"In the presence of the following witnesses, accused Hitesh s/o Lehna Singh caste Jat r/o Kasandi, while in police custody led the police party to the fields of one Ram Kishan son of Sarup Singh caste Jat r/o Pugthala and got recovered a polythene sheet containing a photograph of Amar Singh on the opposite side of which full address of Amar Singh is written, one electricity bill in the name of Amar Singh and two copies of Life Insurance Policies of 1999 and 2001 for Rs.50,000/- each and one rope from the bundle of sugarcane in the north-east corner of the field. On measurement, the length of the rope was found ____ inch."
He and his accompany decamp with currency note, wrist watch and a purse and decided to distribute the booty to Rs 2000/- each and rope with which he had strangulated Amar Singh and the money which came to his share had been kept in his residential house at village Criminal Appeal No.878-DB of 2006 6 Kasandi of which he had knowledge.
In similar vein the other accused-appellant Raj Roop made a disclosure statement on similar lines as Hitesh.
On completion of the investigation, the final report was presented before the trial Court under Section 173 Cr.P.C. The challan docket was supplied to the appellants as required under Section 207 Cr.P.C. The case was committed to Sessions trial. The appellants were charge sheeted for murder and criminal conspiracy.
In support of the prosecution case, as many as 14 witnesses were examined. Complainant Jagminder appeared as PW-1 to substantiate evidence of last seen. Jeet Singh and Satbir Singh appeared as PW-2 and PW-3. Jeet Singh-PW-2 supported his version of having last seen his brother Amar Singh in the company of the accused. Satbir Singh-PW-3 was witness to the extra judicial confession made by Kamla. The medical evidence of Dr. Varsha-PW-4, Medical Officer, Civil Hospital, Sonepat was recorded in support of the autopsy report. Two life insurance policies of Amar Singh were produced on record as Exbs.PD and PE of Rs 50,000/- each contracted in 1999 and 2001respectively.
On closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C. They pleaded innocence and false implication in the case.
In their defence, they produced DW-1 Balbir Singh, Deed writer who proved the release deed Ex.D1 dated 25.2.2003 and DW-2 Mahas Singh, Numberdar who deposed that Mauji Ram executed a decree in favour of his five sons except Amar Singh, deceased. DW-3 Ravinder son of the deceased deposed that his mother Kamla has been falsely Criminal Appeal No.878-DB of 2006 7 implicated. He also deposed that his uncles namely Satbir, Juman, Rajender, Rohtas and Ajit Singh were not on speaking terms with his parents. He pointed the finger of guilt on Rajinder and Satbir who he said had earlier committed the murder of the wife of Juman. Therefore, his uncle Satbir and his wife had administered poison to the daughter of Rajinder and taken her life. He deposed that his grandfather had executed the release deed in favour of his uncles but did not give any land to his father. The defence evidence was closed thereupon.
We have heard learned counsel for the parties at length and have perused the record.
Learned counsel for the appellants submits that there is no direct evidence in this case which is one of alleged circumstantial evidence. He would urge us that the present is a case of acquittal for the following reasons: The FIR does not name the accused; it is a blind murder; subsequently the FIR was lodged on 21.1.2002 while the occurrence is said to have taken place 2 or 3 days prior thereto; it is neither natural nor probable for Kamla to have made a extra judicial confession before her brother-in-law Satbir when there was no love lost between the brothers and in any case it is in evidence that appellant-Kamla and Amar Singh were living separately from the remaining brothers for the last two decades; in absence of any special relationship between Kamla and Satbir, the extra judicial confession is planted by the police and inspires no confidence; similarly, the other appellants Hitesh, Raj Roop and Kuldeep were clustered together for an extra judicial confession before PW-8 Maha Singh, cousin of the deceased. Appellants-Raj Roop and Kuldeep were rank outsiders to the family and would not have any reason whatsoever to make any confession Criminal Appeal No.878-DB of 2006 8 to inculpate themselves; the last seen evidence of the complainant and his brother Jeet Singh has come via supplementary statements long after the occurrence and are, therefore, highly suspect and these witnesses have been introduced by the police to pay lip service to crime solution; in any case the death has no close proximity of last seen evidence and therefore, it would not be safe to rely on it; still further the last seen evidence is a weak type of evidence which requires corroboration in material particulars by other link evidence to complete the chain of guilt pointing conclusively towards the accused; the motive itself is extremely weak inasmuch as it is not believable that appellant-Kamla would pledge two life insurance polices of Rs 50,000/- each in the hands of Hitesh to get her husband out of her way. Still further, it is extremely difficult to believe that a woman would confide such graphic details of her sex life and medical condition to a brother-in-law with whom she had no special relationship; the extra judicial confession of appellant- Kamla is make-believe and can be attributed only to the ingenuity of the police; the fact that the brothers were not well disposed to the deceased brother is evident from subsequent events of release deed where Amar Singh and his family have been done out of the six acres inheritance of the landed property; there is an admission in the release deed itself that property was ancestral and therefore, the children of appellant-Kamla had a birth right to the property and would continue to do so despite the machinations of the rest of the family. Furthermore, it is hard to digest that in the disclosure statement and recovery memos with respect to the appellants- Hitesh, Raj Roop and Kuldeep that photographs, insurance policies and the address of the deceased Amar Singh would all be found so conveniently wrapped in polythene including sums of Rs 2000/- each, given that the Criminal Appeal No.878-DB of 2006 9 arrest were effected on 19.2.2002 and the rope itself said to have been used for strangulating Amar Singh also kept carefully wrapped in a parcel waiting only to be recovered by the police; still further there would remain the dilemma of connecting this rope with that neck. It is also not reasonable to believe that Hitesh would commit murder of his uncle for two life insurance policies of Rs 50,000/- each over which he would have no control nor would such policies be easily encashable to fulfill immediately the dream of buying a jeep without overcoming the long procedure and probable red tape involved easily and without suspicion; in the conspectus of the above fact, motive appears to have been pasted on to the investigation to complete the troika of proof of circumstantial evidence, that is, arrest, disclosure statement while in police custody, followed by recovery of incriminating objects, extra judicial confessions before Satbir Singh and Maha Singh and last-seen-together evidence of two of the brothers of the deceased to complete the picture. On these premises, learned counsel would conclude as to whether it is safe to convict the accused.
It has also come in evidence that after the arrest of Kamla, her children being young, the brothers of Amar Singh took his buffaloes into their possession so it cannot be disputed that Amar Singh was in the business of keeping cattle and, therefore, it may not have been unusual for him to have gone away to purchase cattle. Learned counsel for the appellants would also point out from the medical evidence of PW-4 Dr. Varsha, MO Civil Hospital, Sonepat that it has come in her cross examination that it is correct that rope Ex.P1 is made of jute fibre. The ligature mark found on the neck of Amar singh could be caused by silk or nylon material also and therefore, there is no conclusive evidence of the Criminal Appeal No.878-DB of 2006 10 rope, exhibited on record, as having been the murder weapon. There is also no concrete evidence of criminal conspiracy between Kamla and the remaining appellants or that there was common intention.
On the other hand, Mr. S.S. Patter, learned State counsel depends on his stock arguments which require no further detailing in view of their being stereotype arguments raised in such cases. He would support the prosecution evidence to conclude that there is sufficient material on record to uphold the judgment of the learned trial Court. He would submit that it was not natural for appellant-Kamla wife of the deceased not to report the matter to the police of her missing husband for two or three days when he had allegedly gone to buy cattle accompanied by the accused, to which learned counsel for the appellant would counter that in villages it is not unnatural for men to stay away from homes for days when buying cattle.
We have given our thoughtful consideration to the arguments of either side. We find ourselves in agreement with the arguments of the learned counsel for the appellants that it would not be safe to rely upon the extra judicial confession of appellant-Kamla on the one hand and the appellants-Hitesh, Rajroop and Kuldeep on the other. The last seen evidence is also very weak in terms of proximity to death. The motive attributed to the crime is farfetched. The FIR was registered on 24.1.2002 and there was considerable delay for Satbir and Jeet Singh to make supplementary statements suspecting appellant-Kamla and the remaining appellants. There was sufficient time for the police to have made up a story in launch prosecution. The dead body was found three kilometers away in the sugarcane fields of the village. The recovery of insurance polices, photographs, address of Amar Singh, watch, cash etc. inspire no confidence Criminal Appeal No.878-DB of 2006 11 in us to connect the appellants with the crime so as to rule out any other possible story. Amar Singh had separated from the rest of his family members 20 years ago and was residing separately. There are no special bonds of love and affection between the brothers. There is no evidence of any special relationship between Kamla and Satbir for her to have made a extra judicial confession before him in such terrible detail which we would not expect any woman to share with her brother-in-law unless there were not themselves in a relationship. Be that as it may, we do not find that in this case conviction is justified. In a case of this kind, conviction based on circumstantial evidence can be justified only when all incriminating facts and circumstances are incompatible with the innocence of the accused or guilt of any other person. We have re-appreciated the evidence and on review of the order passed by the court below we, however, express doubt based upon reason and common sense as coming out of the evidence that the prosecution has not been able to prove its case beyond reasonable doubt and to the hilt.
The Supreme Court in State of Goa v. Pandurang Mohite;
2011 () AIR (SC) (Cri) 1860 held in paras 9 and 16 held as under:
"9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), 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 Criminal Appeal No.878-DB of 2006 12 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 the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
16. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish (2005) 3 SCC 114 it was noted as follows:
"22. The last seen theory comes into play where the time- gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case Criminal Appeal No.878-DB of 2006 13 there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW-2."
The Supreme Court in Sahadevan and another v. State of Tamil Nadu ; 2012 () Cri.LJ 3014 held that where the prosecution case is based entirely on circumstantial evidence, the evidence of last seen together may raise suspicion, but it is not independently sufficient to lead to a finding of guilt.
Therefore, for the reasons recorded above and in the totality of circumstances since there is no probative and unimpeachable evidence on record to connect the appellants with the commission of crime to establish the charge framed beyond any reasonable doubt, we would reverse the judgment and order dated 30.10.2006/1.11.2006 and the findings of conviction and sentence recorded by the learned Additional Sessions Judge, Sonepat, and resultantly, would acquit the accused-appellants in FIR No.9 dated 24.1.2002 Police Station Ganaur by giving them the benefit of doubt. The appellants be released and set free forthwith if not required in any other case.
The case property, if any, be dealt with as per rules after the expiry of the period of limitation of appeal.
In view of the findings recorded above, Criminal Revision No.464 of 2007 is dismissed.
( HEMANT GUPTA ) ( RAJIV NARAIN RAINA )
JUDGE JUDGE
10.12.2012
rajeev