Punjab-Haryana High Court
Joginder Singh And Another vs State Of Haryana on 5 March, 2012
Author: S.S. Saron
Bench: S.S. Saron, Jora Singh
Crl. Appeal No.D-226-DB of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.D-226-DB of 2004
Date of decision:- 05.03.2012.
Joginder Singh and another .....Appellants
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Pawan Sharma, Advocate for the appellants.
Mr. H. S. Deol, Addl. AG, Haryana.
S.S. SARON, J.
The present appeal has been filed by the appellants Joginder Singh and Shamsher Singh against the judgment dated 18.11.2003 whereby the said appellants have been held guilty and convicted for the offences under Sections 364, 302 and 201 all read with Section 34 of the Indian Penal Code ('IPC'-for short) and the order dated 22.11.2003 whereby the appellants have been sentenced to undergo imprisonment for life, besides, pay a fine of Rs.50,000/- each and in default of payment, the defaulting convict has been ordered to undergo further rigorous imprisonment for one year for the offence under Section 302 read with Section 34 IPC; to undergo rigorous imprisonment for 10 years, besides, pay a fine of Rs.10,000/- by each of the convicts and in default of payment of fine, the defaulting convict has been ordered to further undergo rigorous imprisonment for six months in respect of the offence Crl. Appeal No.D-226-DB of 2004 -2- under Section 364 read with Section 34 IPC and also undergo rigorous imprisonment for three years, besides, pay a fine of Rs.50,000/- each and in default of payment of fine, the defaulting convict is to further undergo rigorous imprisonment for three months for the offence under Section 201 read with Section 34 IPC. The payment of fine by the convicts, it was ordered, shall be paid to the widow of the deceased Suresh Kumar as compensation. All the sentences have, however, been ordered to run concurrently.
The FIR (Ex.PA/2) has been registered on the statement dated 17.03.2001 (Ex.PA) of Smt. Kela Devi (PW-1) wife of the deceased in the case namely Suresh Kumar resident of Kheri Dabdalan. It is stated by Smt. Kela Devi (PW-1) in her statement (Ex.PA) that she does household work and her husband Suresh Kumar (deceased) worked as a mason. Her husband in the begining of January 2001 had been engaged for work in the house of Shamsher Singh (appellant No.2). He did plaster work there for about 1 ½ months. In the middle of January, 2001, Shamsher Singh (appellant No.2) came to the house of the complainant-Kela Devi (PW-1) and stated that her husband Suresh Kumar (deceased) used to misbehave with Nirmala daughter of his uncle (father's younger brother). The complainant (PW-1) was asked to make her husband understand. On this, the complainant (PW-1) had made her husband Suresh Kumar (deceased) understand. However, Shamsher Singh (appellant No.2) had not even paid the due labour charges of her Crl. Appeal No.D-226-DB of 2004 -3- husband. On 19.02.2001 at about 11.00 am in the morning, Shamsher Singh (appellant No.2) and Joginder Singh (appellant No.1) came riding on a black colour 'Splendour' motorcycle without a number plate. They took away the husband of the complainant on their motorcycle stating that on they were to clear the accounts of Suresh Kumar (deceased) on the said day. After that when the husband of the complainant did not return home for many days, then Kela Devi, complainant (PW-1) informed the entire facts to her husband's younger brother namely Satish Kumar and also to Sarpanch Tarlochan Singh (PW-2) and by taking them along with her went in search of Suresh Kumar (deceased) amongst all the relatives. They also went to the house of Shamsher Singh (appellant No.2) and Joginder Singh (appellant No.1). However, they did not give any satisfactory answer to their queries and kept putting of the matter. Later on the Panchayat was convened in village Rambha and Niwarsi but they (Shamsher Singh and Joginder Singh-appellants) did not give any satisfactory reply. The complainant (PW-1), therefore, had full belief that Shamsher Singh (appellant No.2) and Joginder Singh (appellant No.1) had on that very day kidnapped her husband Suresh Kumar (deceased) with an intention to kill him. On 17.03.2001, the complainant Kela Devi (PW-1) along with her husband's younger brother Satish Kumar and Sarpanch Tarlochan Singh (PW-2) were going from the village to report the matter that at Indiri Chowk Ladwa, Chunni Lal ASI, Police Station Ladwa (PW-14) met them and the complainant (PW-1) got her Crl. Appeal No.D-226-DB of 2004 -4- statement (EX.PA) recorded with him. She requested that legal action be taken against both the accused (appellants) and her husband be got recovered from them. The statement (EX.PA) was heard by Kela Devi (PW-1) and was accepted as correct, which was attested by Chunni Lal ASI Police Station Ladwa on 17.03.2001. Chunni Lal ASI Police Station Ladwa (PW-14) recorded police proceedings (Ex.PA/1) to the effect that he along with Head Constable Bharat Lal (PW13) and Constable Om Pal were present at Indiri Chowk Ladwa in connection with patrolling. At that time, complainant Kela Devi (PW-1) along with her husband's younger brother Satish Kumar and Sarpanch Tarlochan Singh (PW-12) had got her statement (Ex.PA) recorded, which was read over to her in her language who after admitting the same to be correct, put her right thumb impression below it which was attested by Chunni Lal ASI (PW-14). From the Statement (Ex.PA), an offence punishable under Section 364 IPC was made out. The writing was sent to the Police Station through Constable Om Pal for registration of a case (FIR). After registration of FIR its number was asked to be intimated; besides, copies of FIR and special reports were asked to be sent to the concerned officers. ASI Chunni Lal (PW-14) along with Head Constable Bharat Lal (PW13), complainant Smt. Kela Devi (PW-1) and the witnesses proceeded to the spot for investigation. At the Police Station, Head Constable Prem Chand on receipt of the writing through Constable Om Pal registered FIR No.32 dated 17.03.2001 (Ex.PA/2). Chunni Lal ASI Crl. Appeal No.D-226-DB of 2004 -5- (PW-14) reached Kheri Dabdalan, where the incident had occurred. He prepared rough site plan (Ex.PO) with correct marginal notes of the place of occurence. He recorded the statements of Tarlochan Singh Sarpanch (PW-2) and Satish Kumar (husband's younger brother of complainant Kela Devi) under Section 161 of the Code of Criminal Procedure (Cr.P.C- for short). He then went to villages Niwarsi and Rambha in search of the accused. However, no clue of the accused could be found. On 18.03.2001, Chunni Lal ASI (PW-14) again searched for the accused in villages Rambha and Niwarsi, but their whereabouts could not be found. On 19.03.2001 at about 8.45 am, Roshan Lal Ex Member Panchayat (PW-7) met Chunni Lal ASI (PW-14) and he got his statement recorded under Section 161 Cr.P.C. wherein he stated that the accused had made an extra judicial confession before him. Thereafter, Chunni Lal ASI (PW-
14) visited Rambha in search of the accused (appellants) and he apprehended them who were then arrested in the present case. On return, they were lodged in the police lock up.
On 20.03.2001, Chunni Lal ASI (PW-14) took out the accused (appellants) from the police lock up in the police station and interrogated them in the presence of Head Constable Suraj Bhan and Head Constable Bharat Lal (PW13). Joginder Singh (appellant No.1) was interrogated first and he made a disclosure statement (Ex.PL) stating that he could point out the place where Suresh Kumar (deceased) had been set on fire after tying his hands. He also disclosed that the motorcycle which was Crl. Appeal No.D-226-DB of 2004 -6- used for carrying him to the place where he was set on fire had been concealed by him underneath the 'parali' (paddy straw) in the cattle room by the side of his house and he offered to get the same recovered. The disclosure statement (Ex.PL) of Joginder Singh (appellant No.1) was recorded which was signed by him and attested by Head Constable Bharat Lal (PW13) and Head Constable Suraj Bhan. Thereafter, Shamsher Singh (appellant No.2) was interrogated and he made a disclosure statement (Ex.PM) to the effect that he could point out the place where Suresh Kumar (deceased) was put on fire after tying his hands and the motorcycle in question used at that time was taken away by accused Joginder Singh (appellant No.1). The disclosure statement (Ex.PM) of Shamsher Singh (appellant No.2) was recorded which was signed by him and attested by Head Constable Bharat Lal (PW13) and Head Constable Suraj Bhan. On the same day, Chunni Lal ASI (PW-14) produced both the accused in the Court. A three days police remand was obtained. Thereafter, they reached village Rambha. Joginder Singh (appellant No.1) then got recovered the motorcycle along with its registration certificate from the cattle room after taking it out from under neath the 'parali' (paddy straw). The registration number of the motorcycle was HR-03-3026. It was a black colour 'Splendour' make. It was taken in possession along with its registration certificate vide recovery memo (Ex.PN) which was attested by Head Constables Bharat Lal (PW13) and Head Constable Suraj Bhan. Chunni Lal ASI (PW-14) Crl. Appeal No.D-226-DB of 2004 -7- prepared a rough site plan (Ex.PQ) of the place of recovery of motorcycle. Thereafter, he (PW-14) reached the police station.
On 21.03.2001, the accused (appellants) pointed out the place of occurrence in the area of village Jastna Kalan, Police Station Lalru (Punjab). Memo Ex.PJ was prepared in this regard and it was signed by Jarnail Singh Ex.Sarpanch, Village Dhira Majra and Mange Ram (PW11). Rough site plan (Ex.PR) of the said place with correct marginal notes was prepared; besides, the offences under Section 302 and 201 IPC were added. On 22.03.2001, Chunni Lal ASI (PW-14) visited Police Station Lalru (Punjab) and obtained inquest papers and post-mortem report from ASI Sadhu Ram, Police Station Lalru (PW10) and placed the same on the file of the present case. In the presence of Tara Chand and Ram Karan, Chunni Lal ASI (PW-14) took in possession a black colour pair of shoes (Ex.P1 and Ex.P2) and pair of socks (Ex.P3) from Head Constable Shamsher Singh of Police Station Lalru. Tara Chand identified the shoes and the socks as belonging to his deceased brother Suresh Kumar. An empty bottle was also taken in possession vide recovery memo (Ex.PB). The identification memo (Ex.PB) was also prepared. An application (Ex.PS) was filed before the Tehsildar Dera Bassi, Patiala requesting for prepartion of the scaled site plan. Kuldeep Singh, Patwari Halqa Sirsani, Police Station Lalru (PW6) visited the area of village Jasthana Kalan (where the dead body of Suresh had been burnt) and prepared a scaled site plan (Ex.PC) with correct marginal Crl. Appeal No.D-226-DB of 2004 -8- notes, which was produced before ASI Chunni Lal (PW-14) and was placed on the record. After completion of the investigation, Police report (challan) was filed under Section 173 Cr.P.C by Ram Singh SI/SHO in the Court of the learned Judicial Magistrate, Ist Class, Kurukshetra on 27.04.2001. The learned Magistrate observed that the accused (appellants) had been charged for the offences under Sections 364, 302 and 201 IPC and since the offences were triable by the Court of Session, he vide order dated 17.05.2001 committed the case to the said Court for trial.
The learned Additional Sessions Judge, Kurukshetra on 31.08.2001 framed charges against the appellants. It was alleged that on 19.02.2001 in the area of village Kheri Dabdalan in furtherance of their common intention abducted Suresh Kumar in order to murder him and thereby committed an offences punishable under Section 364 read with Section 34 IPC. Secondly, in between 19.03.2001 and 20.03.2001 in the area of village Dhira Majra, Police Station Lalru in furtherance of their common intention, they both (appellants) did commit murder by intentionally causing the death of Suresh Kumar and thereby committed an offence punishable under Section 302 read with Section 34 IPC. Lastly, on 20.03.2001 in the area of village Dhira Majra Police Station Lalru, the appellants knowing or having reason to believe that an offence of murder of Suresh Kumar punishable with death had been committed, caused certain evidence with the said offence to disappear, that is, put Crl. Appeal No.D-226-DB of 2004 -9- his dead body on fire by placing the same on a heap of fodder with the intention to screen themselves from legal punishment thereby committed an offence under Section 201 IPC. The appellants were directed to be tried by the Court of learned Additional Sessions Judge, Kurukshetra on the aforesaid charges. The contents of the charge sheet were read over to the appellants in simple Hindi to which they pleaded not guilty.
The prosecution in order to establish its case examined as many as 16 witnesses and also tendered documents in evidence. The statements of the accused (appellants) in terms of Section 313 Cr.P.C were recorded and the substance of the evidence appearing against them was put to them. Both the appellants stated that they were innocent and had been falsely implicated in the case at the instance of the complainant (PW-1) and her relatives. The alleged motorcycle it is stated belonged to the brother of the complainant (PW-1) (namely Sher Singh DW1) and they had no concern with this case. In defence, the appellants examined Sher Singh (DW-1) who stated that he was owner of Hero Honda 'Splendour' motorcycle bearing registration NO.HR 05J 3026. Since the time of purchase of the motorcycle, the same was in his possession. Kela Devi (PW-1) her sister had summoned the aforesaid motorcycle from him at Police Station, Ladwa. The same was kept in Police Station, Ladwa and he obtained the same on superdhari. Kela Devi, (complainant) (PW-1) was his cousin sister. She (Kela Devi PW-1) was married to Suresh (deceased) in village Dabdalan. Suresh Crl. Appeal No.D-226-DB of 2004 -10- (deceased) was a labourer and was not a mason. Roshan Lal (PW7) was his grand maternal uncle and maternal uncle of Suresh (deceased). The accused (appellants) present in the Court were not known to him. Sher Singh (DW-1) was cross-examined by the public prosecutor and he stated that it was wrong to suggest that on 19.02.2001, the motorcycle was taken by Joginder Singh. It was also wrong to suggest that it was got recovered by Joginder Singh on 20.03.2001. On the asking of his sister (PW-1), he produced the motorcycle at Police Station Ladwa where it was taken on superdhari after about one month from the Court. He (DW1) had not made any complaint against the Police about the motorcycle as the same was in the custody of Police for one month. He voluntarily stated that the motorcycle was summoned by his sister Kela Devi (PW-1) and it was wrong to suggest that he was deposing falsely at the instance of the accused. He (DW1) was not a summoned witness and was called by the uncle of Kela Devi (PW-1) whose name was Kura Ram. He was not present in the Court on that day.
The learned trial Court after considering the evidence and material on record has convicted the appellants for the offences under Sections 364, 302 and 201 read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for life; besides, other offences which were, however, ordered to run concurrently. The appellants aggrieved against the same have filed the present appeal.
Learned counsel for the appellants has contended that the Crl. Appeal No.D-226-DB of 2004 -11- alleged motive of Shamsher Singh (appellant No.2) and Joginder Singh (appellant No.1) to commit the murder of Suresh Kumar that has been alleged is that Suresh Kumar (deceased) had misbehaved with Nirmala, daughter of the father's younger brother of Shamsher Singh (appellant No.2). However, Nirmala was not examined and even otherwise only a passing reference has been made to the alleged misbehaviour of Suresh Kumar (deceased) with Nirmala. It is not mentioned as to when she was harrased or troubled by Suresh Kumar (deceased). Roshan Lal (PW7) it is submitted is the maternal uncle of the deceased as stated by Sher Singh (DW-1), Roshan Lal (PW7) even does not name the accused. It is submitted that the case is based on circumstantial evidence. The alleged extra judicial confession made before Roshan Lal (PW7), it is stated, is a weak type of evidence. The evidence of last seen on 19.02.2001 and recovery of motorcycle is not of much consequence as the motorcycle belonged to the brother of the complainant namely Sher Singh (DW1). Therefore, it is submitted that the learned trial Court has convicted and sentenced the appellants on wholly untenable grounds which is liable to be set aside and the appellants acquitted of the offences attributed to them.
In response, learned State counsel has submitted that the prosecution has proved its case by leading cogent and convincing evidence and there is nothing on record to dislodge the prosecution case. It is submitted that Nirmala a cousin sister of Shamsher Singh (appellant No.2) is said to have been teased by Suresh Kumar (deceased) and on Crl. Appeal No.D-226-DB of 2004 -12- that account he was murdered. There is nothing to disbelieve the deposition of Kela Devi complainant (PW-1) in this regard. It is submitted that Roshan Lal (PW7) is not the maternal uncle of the deceased as stated by Sher Singh (DW-1). Roshan Lal (PW7) was not cross- examined regarding relationship. Therefore, the extra judicial confession, the identification of the spot where Suresh Kumar was burnt, the recovery of motor cycle and the evidence of last seen on 19.02.2001 clearly establishes the case of the prosecution. Neither the complainant (PW1) nor the police had any enmity with the accused; besides, Tarlochan Singh (PW-2) has supported the entire case. Therefore, it is submitted that the appeal is liable to be dismissed.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the records of the case.
The factual position as has been noticed above is that Suresh Kumar (deceased) was the husband of Kela Devi (complainant) (PW-1). He was carrying out the work of mason. The appellants were related to each other. Suresh Kumar was doing the work of mason at the house of Shamsher Singh (appellant No.2) since January 2001. In the middle of January, 2001, Shamsher Singh (appellant No.2) visited the house of Kela Devi (complainant) (PW-1) and informed her that her husband Suresh Kumar was misbehaving with the daughter of his father's younger brother. Kela Devi (complainant) (PW-1) was asked to tell her husband Crl. Appeal No.D-226-DB of 2004 -13- Suresh Kumar to mend his way. Kela Devi, complainant (PW-1) states that she had tried to make her husband understand about the matter. Suresh Kumar (deceased) had done plaster work for Shamsher Singh (appellant) for about one and a half month, however, he had not been paid the wages for the work he had done. On 19.02.2001 at about 11.00 am, both the appellants came to the house of Kela Devi, complainant (PW-1) on a black colour 'Splendour' motor cycle. Suresh Kumar (deceased) was present at his house and they took him and while taking him, they said that they would clear the accounts of his wages. Suresh Kumar (deceased) was taken by the appellants. Kela Devi (complainant) (PW-1) waited for her husband for 5-7 days. However, he did not return. She then contacted Satish Kumar, the younger brother of Suresh Kumar (deceased) and Sapranch Tarlochan Singh (PW-2) and narrated the entire occurrence to them. Then all three of them searched for Suresh Kumar (deceased) at the houses of the relatives. However, he could not be found. The three then contacted the appellants and asked them about the whereabouts of Suresh Kumar (deceased) but they gave evasive replies. Panchayats of two villages were also convened but the appellants did not give any satisfactory reply. Kela Devi, complainant (PW-1) then accompanied by Satish Kumar and Tarlochan Singh (PW-2) were going to Police Station, Ladwa for lodging a report against the appellants regarding the kidnapping of Suresh Kumar. On the way at Indri Chowk Ladwa, Kela Devi, complainant (PW-1) met ASI Chunni Lal (PW-14) and Crl. Appeal No.D-226-DB of 2004 -14- her statement (Ex.PA) was recorded. On the basis of the same formal FIR (Ex.PA/2) was recorded by Prem Chand Head Constable against the appellants.
The case was investigated by ASI Chunni Lal (PW-14) and he reached village Kheri Dabdlan. A rough site plan (Ex.PO) with correct marginal notes was prepared by Chunni Lal ASI and statements of Tarlochan Singh Sarpanch (PW-2) and Satish Kumar were recorded. Thereafter, a search was made for the appellants in village Niwarsi and Rambha. On 19.03.2001, ASI Chunni Lal (PW-14) had visited village Rambha where the appellants were arrested in the present case and were put in the police lock up at Ladwa. On 20.03.2001, the appellants were interrogated in the presence of Head Constable Suraj Bhan and Head Constable Bharat Lal (PW13). During interrogation, Joginder Singh (appellant No.1) made a disclosure statement (Ex.PL) disclosing that he could point out the place where Suresh Kumar (deceased) was set on fire after tying his hands. Joginder Singh (appellant No.1) further disclosed that the motorcycle that was used for carrying Suresh Kumar to the aforesaid place where he was set on fire had been concealed by him underneath the 'parali' (paddy straw) in the cattle room by the side of his house and he offerred to get the same recovered. His disclosure statement (Ex.PL) was signed by him and attested by Head Constable Bharat Lal (PW-13) and Head Constable Suraj Bhan. Shamsher Singh (appellant No.2) during his interrogation also made a disclosure Crl. Appeal No.D-226-DB of 2004 -15- statement (Ex.PM) stating that he could point out the place where Suresh Kumar (deceased) was put on fire after tying his hands; besides, the motorcycle that was used at that time was taken away by accused Joginder Singh. The statement (Ex.PM) was signed by Shamsher Singh (appellant No.2). In pursuance of the disclosure statement (Ex.PL), Joginder Singh (appellant No.1) got the motorcycle recovered along with its registration certificate from the cattle room after taking it out from beneath the 'parali' (paddy straw). The same was taken in possession by the police vide recovery memo (Ex.PN). A rough site plan (Ex.PQ) of the place of recovery was prepared. On 21.03.2001, Joginder Singh (appellant No.1) pointed out the place of occurrence in the area of village Jastana Kalan, Police Station, Lalru (Punjab). In this regard memo (Ex.PJ) was prepared by ASI Chunni Lal (PW-14) and was signed by Jarnail Singh and Mange Ram. ASI Chunni Lal (PW-14) prepared rough site plan (Ex.PR) of the place with correct marginal notes and the offences under Sections 302 and 201 IPC were added. On 22.03.2001, ASI Chunni Lal, Tara Chand and Ram Kumar reached at the Police Station, Lalru and obtained the inquest report (Ex.PE) and the postmortem report (Ex.PK) from SI Sadhu Ram (PW-12). ASI Chunni Lal ASI (PW-14) also took in possession a pair of black colour shoes (Ex.P1 and Ex.P2) and a pair of socks (Ex.P3) from Head Constable Shamsher Singh of Police Station, Lalru, the shoes and the socks were identified by Tara Chand as beloning to his deceased brother Suresh Kumar. In this Crl. Appeal No.D-226-DB of 2004 -16- regard identification memo (Ex.PB) was prepared. An empty English wine bottle was also taken in possession. Chunni Lal ASI (PW-14) submitted an application (Ex.PS) before the Tehsildar Dera Bassi requesting for preparation of a scaled site plan. Kuldeep Singh (PW-6) visited the area of Jastana Kalan and prepared scaled site plan (Ex.PC) with correct marginal notes.
It is stated by Roshan Lal (PW7), that on 18.03.2001 both Joginder Singh (appellant No.1) and Shamsher Singh (appellant No.2) came to his house on a motor cycle make Hero Honda 'Splendour' No,3026. Shamsher Singh (appellant No.2) disclosed before Roshan Lal (PW-7) that one Suresh Kumar resident of Kheri Dabdlan had been working as a mason at his house for the last 1-1/2 months and that he had not paid his wages. Shamsher (appellant No.2) told Roshan Lal (PW7) that Suresh Kumar (deceased) used to harass his uncle's daughter and they had kidnapped him on 19.2.2001 and after taking him in the area of Dhira Majra tied his hands behind and put him on a heap of 'parali' (paddy straw) and had put him on fire. The appellants had further disclosed to Roshan Lal (PW-7) that prior thereto they both had served liquor to Suresh Kumar (deceased) and made him unconscious and then he was set on fire. Roshan Lal (PW-7) was asked by the appellants to help them as the police wanted to arrest them. The appellants then left his (PW-7) house.
SI Sadhu Ram (PW-10) was present near village Dharamgarh Crl. Appeal No.D-226-DB of 2004 -17- on 20.02.2001, in connection with patrolling in Police Station, Lalru (Punjab) where Karam Singh Sarpanch of village Jastna Kalan within the jurisdiction of Police Station, Lalru (Punjab) met SI Sadhu Ram (PW-10) and he made a statement (Ex.PD) that a burnt dead body of an unknown person was lying in the 'parali' (paddy straw) which was also burnt. The dead body was lying on the side of the road from village Mirpura to Johlakalan in the area of Jastan Kalan. Karam Singh further informed SI Sadhu Ram (PW-10) that it appeared to him that during the night some person under the influence of liquor had sat down on the 'parali' (paddy straw) and caught fire while the person may have been smoking. The statement (Ex.PD) of Karam Singh was signed by him and attested by SI Sadhu Ram (PW-10). The same was sent to the Police Station for registration of a report on the basis of which report No.24 (Ex.PD/2) was recorded. Inquest proceedings (Ex.PE) in terms of Section 174 Cr.P.C with regard to the unidentified dead body was conducted by SI Sadhu Ram (PW-10). From the spot a pair of black colour shoes (Ex.P1 and Ex.P2) and a pair of socks (Ex.P3) were recovered which were lying near the dead body of Suresh Kumar (deceased). The same were taken in possession by the police vide recovery memo (Ex.PL). An empty bottle of English wine was lying near the dead body which was also taken in possession vide recovery memo (Ex.PG).
On 20.02.2001, Darshan Singh (PW-15) Photographer on police request, reached at the spot at village Jastna Kalan and he took Crl. Appeal No.D-226-DB of 2004 -18- five photographs. Ex.P-4 to Ex.P-8 were the negatives and Ex.P-9 to Ex.P-13 were the postives of the photographs.
Sadhu Ram SI (PW-10) moved an application (Ex.PH) to the Medical Officer, Rajpura for conducting the postmortem examination on the unidentified dead body. On this Dr.Mandeep Kaur (PW-16) referred the dead body to the Forensic Department of Government Medical College/Rajindra Hospital, Patiala for postmortem examination vide her endorsement Ex.PH/1. On 22.02.2001, the application (Ex.PH) filed by Sadhu Ram SI (PW-10) was marked to Dr. D.S. Bhullar (PW-12) by Dr. Tulli, the Head of Forensic Medicine Government Medical College, Patiala for conducting the postmortem examination on the dead body. The application (Ex.PH) was accompanied by inquest report (Ex.PE). The postmortem examination was conducted on the dead body by Dr.D.S. Bhullar (PW-12). According to Dr. D. S. Bhullar (PW-12) on 22.02.2001, the application (Ex.PH) was marked to him by Dr. Tuli, the Head of the Department for conducting postmortem examination. The application was accompanied by inquest papers 1 to 20 (Ex.PE). Accordingly, Dr. D. S. Bhullar (PW-12) conducted the postmortem examination on the dead body. It was an unknown dead body of a male brought by Constable Jaspal Singh Police Station Lalru. The dead body was referred from Civil Hospital, Rajpura vide endorsement on the back of the application (Ex.PH). It was stated as unknown by Karam Singh Sarpanch and Amar Nath Crl. Appeal No.D-226-DB of 2004 -19- Chowkidar of village Jastna Kalan. The body it was observed by Dr. D. S. Bhullar as under:-
"The length of the body was 5'. There was no injury on bony parts of the body. It was completely charred body of a male (sex from external genitalia on examination) wearing no clothes. Burns were absent on sole of feet. Bones were exposed at many places.
Membranes of brain were showing burns. Pleurae
were showing burns .Soot particles were seen in
tracheae. Lung and pericardium showed burns.
Abdomenal viscera were showing burns. The cause of
death was shock due to burns which were ante-mortem
and were sufficient to cause death in the ordinary
course of nature."
The probable time between burns and death it is stated was immediate. The time between death and postmortem could not be ascertained.
The postmortem report (Ex.PK) was tendered in evidence. In cross-examination, it is stated that he could not ascertain the time that elapsed between death and postmortem and as such he could not say whether this period was between 7 days to 15 days. The time of death was mentioned in the postmortem was incorporated as per police papers. This was not his personal observation. Thereafter the dead body was Crl. Appeal No.D-226-DB of 2004 -20- handed over to Jaspal Singh and then it was given to Raju son of Darshan Singh for cremation.
Mange Ram (PW-11) on 21.03.2001 along with Police of Police Station Ladwa and both the accused reached village Dhiramajra from where Jarnail Singh Ex-Sarpanch was joined in the investigation. In presence of Mange Ram (PW-11) and Jarnail Singh Ex-Sarpanch, both the accused in pursuance of their disclosure statements demarcated the place where they murdered Suresh Kumar after burning him on the land of shamlat deh in the jurisdiction of village Jastna Kalan of Police Station Lalru. In this regard memo (Ex.P-5) was prepared by ASI Chunni Lal (PW-14) which was signed by him and Jarnail Singh Ex-Sarpanch. In cross-examination, he denied the suggestion that the deceased Suresh Kumar was his brother. It is stated that father's name of Suresh Kumar was Satia son of Baru Ram. It was incorrect to suggest that Baru Ram and Chandu Ram were real brothers. It was also incorrect to suggest that he (Mange Ram PW-11) was denying the relationship with deceased Suresh Kumar deliberately or that in fact he was his cousin brother.
Tarlochan Singh (PW-2) stated that he had remained Sapranch of his village. He knew Suresh Kumar son of Fatia resident of his village. He was a mason by profession. Kela Devi (complainant) (PW-1) wife of Suresh Kumar (deceased) had told him that two persons residents of Niwarsi had visited her house in January and complained that Suresh Kumar had been misbehaving with their relative i.e. Nirmala Crl. Appeal No.D-226-DB of 2004 -21- daughter of their uncle. Kela Devi (PW-1) further told him that she had advised her husband Suresh Kumar not to misbehave with Nirmala in future. Feeling satisfied those residents of Niwarsi had left her house. Kela Devi (PW-1) accompanied by Satish Kumar again visited him probably in the last week of January and complained that Suresh Kumar had not returned home and they were searching for him. Kela Devi (PW-
1) also told him that two persons namely Shamsher Singh and Joginder Singh (appellants) had visited her house and had taken Suresh Kumar her husband along and since then his whereabouts of were not known.
She did not say as to on what excuse Shamsher Singh and Joginder Singh (appellants) had taken her husband with them. He advised Kela Devi (PW-1) and Satish to search for Suresh Kumar in their relations. Tarlochan Singh (PW-2) accompanied by Satish had visited the house of Shamsher Singh (appellant No.2) at Niwarsi. They made inquiry about Suresh Kumar but he gave an unsatisfactory reply. Then he, Kela Devi (PW-1) and Satish had visited the house of Joginder Singh (appellant No.1) at village Ramba. They made inquires about Suresh Kumar but the accused gave an unsatisfactory answer. A Panchayat was also convened in this regard. Thereafter Tarlochan Singh (PW-2) accompanied by Kela Devi (PW-1) and Satish left for Ladwa to lodge a report with the Police. In cross-examination it is stated by Tarlochan Singh (PW-2) that earlier Satish was employed with him as a servant. He had been employed with him for about 7/8 years. Kela Devi (PW-1) Crl. Appeal No.D-226-DB of 2004 -22- observed 'parda' from him. In the Panchayat that was convened it is stated he could not tell the name of any person of village Ramba who had participated in the Panchayat. It is also stated that during the days of the occurrence Suresh Kumar (deceased) was working in village Niwarsi. He did not know as to in which village he was working before he had started working at Village Niwarsi. This fact was told to him by Suresh Kumar when he met him prior to his death. After the arrest of the accused, he had not visited the police station. It is stated that Nirmala happened to be daughter of an uncle of Shamsher Singh (appellant No.2). It is stated as incorrect that in his statement he had mentioned that Nirmala was sister of Shamsher Singh (appellant No.2). He was confronted with his statement (Ex.PA) wherein it is mentioned that Nirmala was sister of Shamsher Singh (appellant No.2). It is stated as correct that whenever Suresh Kumar used to leave his house in the village for work to some other village, he used to return after about ten days.
Tara Chand (PW-3) is the brother of the deceased Suresh Kumar. It is stated that on receipt of information, he visited Police Station Ladwa along with Ram Karan son of Sumer Chand. Thereafter, he and Ram Karan visited Police Station Lalru where the Moharar Head Constable (MHC) had shown him a pair of black colour shoes, a sock of black colour having white stripes and an empty bottle of liquor. He identified the shoes and sock belonging to his brother Suresh Kumar. A memo (Ex.PB) in this regard was prepared which was attested by him Crl. Appeal No.D-226-DB of 2004 -23- and Ram Karan. He had seen the pair of shoes (Ex.P1 and Ex.P2) and sock (Ex.P3). These belonged to his brother. In cross-examination it is stated that his house adjoins the house of Suresh Kumar (deceased). It is stated that Suresh Kumar (deceased) used to visit home on 3rd, 4th or 5th day and he rarely remained away from his house whenever he worked outside the village. He used to return home daily. He did not know at which place Suresh Kumar was working. The house hold goods were purchased by their parents. It is stated that the MHC had taken out the shoes and a sock from the 'Malkhana'. The same were not sealed at that time. It is stated as incorrect that shoes like the shoes (Ex.P1 and Ex.P2) are available in the market and a like sock (Ex.P3) is also available in the market.
The case is based on circumstantial evidence. The learned trial Court considered the case from the following standpoints:-
1. Motive
2. Last Seen
3. Identity of the dead body
4. Extra Judicial confession
5. Disclosure statements of the accused and recovery Considering the case in the light of the evidence that has been discussed above, it may be noticed that the motive in the case that Shamsher Singh (appellant No.2) had complained to Kela Devi (PW-1) that her husband Suresh Kumar had misbehaved with Nirmala daughter Crl. Appeal No.D-226-DB of 2004 -24- of his uncle. Kela Devi (PW-1) was asked to make her husband understand. According to Kela Devi (PW-1) she had made her husband understand. However, there are no particulars as to in what manner and as to when Suresh Kumar (deceased) had misbehaved with Nirmala. ASI Chunni Lal (PW-14) states that his oral inquiries did not reveal that there was a girl by the name of Nirmala. Therefore, the prosecution has not been able to even establish as to who exactly was Nirmala, which Shamsher Singh (appellant No.2) had alleged that Suresh Kumar had misbehaved with and whether there was indeed any misbehaviour with her. The said circumstances are not completely and fully established.
The learned trial Court observed that Kela Devi (PW-1) was totally illiterate, rural and rustic but she was innocent and had clearly stated that both the accused had visited her house in the month of January, 2001 on a 'Splendour' motorcycle. The grievance of Kela Devi (PW-1) was that in fact some amount was due from Shamsher Singh (appellant No.2) towards her husband Suresh Kumar for the plaster work that he had done in his house. Suresh Kumar was taken from his house on 19.02.2001. The FIR (Ex.PA/2) was, however, registered on 17.03.2001. According to Kela Devi (PW-1) they had gone to the house of the appellants but they had given unsatisfactory replies. However, despite that the matter was not reported to the Police from 19.02.2001 till 17.03.2001 on which date also the FIR was registered for the offence under Section 364 IPC. Therefore, the motive to commit the murder Crl. Appeal No.D-226-DB of 2004 -25- merely on the ground that Suresh Kumar had misbehaved with Nirmala whose identity is not completely and fully established or brought on record is quite a weak motive.
As regards the evidence of last seen, according to Kela Devi (PW-1) on 19.02.2001 at about 11.00 am in the morning Joginder Singh and Shamsher Singh (appellants) had come to her house on a black colour 'Splendour' motorcycle without a number plate. They had taken her husband stating that they have to clear the accounts on that day. After that when the husband of the complainant did not return home for many days, then Kela Devi, complainant (PW-1) informed the entire facts to her husband's younger brother namely Satish Kumar and also to Sarpanch Tarlochan Singh (PW-2) and by taking them along with her went in search of Suresh Kumar (deceased) amongst all the relatives. The evidence of last seen is that the appellants had taken away the husband of Kela Devi on 19.02.2001. However, the matter was not reported to the police till 17.3.2001 and apart from this there is no other evidence of last seen; besides, there is absence of any strong motive for the appellants to commit the murder of Suresh Kumar.
As regards identity of the dead body, it may be noticed that the same has not been completely established. SI Sadhu Ram (PW-10) was posted as ASI at Police Station Lalru on 20.02.2001. On that day, he along with other police officials was present near village Dharamgarh in connection with patrolling where Sarpanch of village Jastna Kalan met Crl. Appeal No.D-226-DB of 2004 -26- him. His statement (Ex.PD) was recorded. The Sarpanch informed ASI Sadhu Ram (PW-10) that a burnt body of an unknown person was lying in the 'parali' (paddy straw) which was lying on the side of the road from village Meerpur to village Johla Kalan in the area of village Jastna Kalan. The Sarpanch also told ASI Sadhu Ram (PW-10) that it appeared to him that at night some person under the influence of liquor sat on the 'parali' (paddy straw) and caught fire while he may have been smoking. The above statement (Ex.PD) was signed by Karam Singh and attested by Sadhu Ram ASI (PW-10). At the stage of recording the statement, it was contended by the learned counsel for the accused that the said part of the statement of Karam Singh could not be mentioned by ASI Sadhu Ram (PW-10) and recorded by the Court and that the statement could only be marked as an exhibit. The learned trial Court, however, found no force in the contention of the learned defence counsel and the objection was over ruled. Thereafter, the statement was exhibited as Ex.PD. Sadhu Ram ASI (PW-10) made his endorsement on the statement (Ex.PD) which was Ex.PD/1. The same was sent to the Police Station for registration of a 'rapat' (report) and on the basis of which 'rapat' No.24, (Ex.PD/2) was registered. Thereafter, he proceeded to the spot and proceedings (Ex.PE) under Section 174 Cr.P.C were completed by him. A pair of shoes of black colour and one sock was lying near the dead body. The same were taken in possession vide recovery memo Ex.PF. The shoes were Ex.P1 and Ex.P2 and the sock was Ex.P3. One empty Crl. Appeal No.D-226-DB of 2004 -27- bottle of English wine was also lying near the dead body. The same was also taken in possession vide recovery memo Ex.PG. The empty bottle was Ex.P4. The photographs of the dead body were taken by Darshan Singh (PW-15) of Babli Photo Studio, Lalru. Thereafter, the dead body was sent to Rajpura for postmortem examination. The doctor at Rajpura referred the dead body to Rajindra Hospital, Patiala vide endorsement mark 'A'. On 22.02.2001, the postmortem report was handed over to Sadhu Ram ASI (PW-10) by Constable Jaspal Singh who had taken the dead body for the postmortem. The shoes, the sock and the bottle were deposited by him with the MHC on 20.02.2001. In cross-examination it is stated that there was no seal affixed by him or someone else on the parcel Ex.P4 i.e. empty bottle. It is also accepted as correct that in the recovery memo (Ex.PE) relating to a pair of black colour shoes and one sock on the figure '2' there was an overwriting. It is stated as incorrect to suggest that he had prepared all these documents subsequently just to oblige the complainant and the Police of Police Station Ladwa. He had written down the 'rapat' in this regard at Police Station Lalru. It was correct that there was no 'rapat' on the file on the day he was deposing. There was no such report on the file which could show regarding the deposit of the case property i.e. shoes, sock and empty bottle at Police Station. It was correct that he had not prepared the site plan at the spot except the report under Section 174 Cr.P.C. It was also correct that from proceedings under Section 174 Cr.P.C, no offence was made out. He Crl. Appeal No.D-226-DB of 2004 -28- found no clue at the spot according to which an offence was made out. Ladwa Police, Chunni Lal (PW-14) and other officials met him in the month of March,2001. He did not remember who was accompanying ASI Chunni Lal (PW-14) when he came to Police Station Lalru. The Police of Police Station Ladwa met him once. In the inquest report (Ex.PE) under the heading; "Description of each articles found on or near the dead body" in column No.22 the following is to be mentioned and filled:-
"Articles actually found on the dead body. Each articles labelled numbered and sealed. Sent attached to the dead body. Sent in separate packet. "
Column No.23 relates to articles found near the dead body. Each articles is to be labelled and sealed. Both the columns have been left blank and it is not mentioned in the inquest report (Ex.PE) that a pair of black colour shoes and one sock was found near the dead body. In case these were found they would have been mentioned. Column No.24 relates to sketch plan of the dead body. In the sketch plan Point 'A' is depicted as the place where the dead body of an unknown person was lying which is on the Johla Kalan to Meerpur 'pucca' road. Johla Kala is shown on the north and Meerpur is on the west. It is no where shown that any pair of black shoes or sock was lying. Below the heading "Brief facts of the case" in the inquest report, it is mentioned that the sketch of the dead body was prepared as per spot. The left arm of the dead body was found in a burnt condition in the 'parali' (paddy straw) of which there Crl. Appeal No.D-226-DB of 2004 -29- was no mark at the spot, therefore, postmortem examination of the dead body was essential. So, the dead body along with the informant was being sent through Constable Jaspal Singh for conducting postmortem examination.
Statement of Karam Singh son of Gurdial Singh Sarpanch Gram Panchayat Jastna Kalan was recorded under Section 175 Cr.P.C in which he makes no mention of any black pair of shoes or any sock being recovered. A resolution of the Gram Panchayat dated 22.02.2001 is part of the inquest proceedings in which it is stated that the dead body could not be identified. They had inquired after going to village Dheermajra, Roorki, Jastna Khurd, Jastana Kalan and Meerpur and inquired from the passers-by regarding identification of the dead body but the dead body could not be identified. It is also mentioned that there appeared to be no reason or mark showing that this person had been murdered by somebody else. It is mentioned that due to smoking of Biri etc., on the 'parali' (paddy straw) he got burnt due to fire.
Statement of Amar Nath Chowkidar was also recorded in the inquest proceedings in which he also does not make any mention of any pair of black shoes or sock being recovered from near the dead body. It is stated that the dead body was of an unknown person who had died due to lying on the 'parali' (paddy straw) and the 'parali' (paddy straw) having caught fire.
Dr. Mandeep Kaur, Medical Officer, Civil Hospital, Rajpura Crl. Appeal No.D-226-DB of 2004 -30- (PW-16) stated that the dead body was totally charred and partly consumed by the fire. Bones were exposed at many places. Chest and abdominal cavities were already exposed due to burning of walls joint at places were opened up. So, she vide endorsement (Ex.PH/1) referred the dead body to the Forensic Department of Government Medical College/Rajindra Hospital, Patiala.
Dr. D. S. Bhullar (PW-12) conducted the postmortem examination on the dead body who has mentioned that the body was completely charred body of a male (sex from external genitalia on examination) wearing no clothes. Bones were exposed at many places. He could not tell the time between death and postmortem. He could not say whether this period was between 7 days to 15 days.
Darshan Singh, Photographer (PW-15) had taken photographs. The positives of which were Ex.9 to Ex.P13. From a perusal of the photographs, the identity of the dead body could not be established. In fact even Tara Chand (PW-3) who is the brother of the deceased Suresh Kumar was not shown the photographs Ex.P9 to Ex.P13. In a trial for murder though it is not an absolute necessity or an essential ingredients to establish identity of the dead body but the fact of death is to be established like any other fact. In a case of murder by burns indeed possibility of identifying the dead body may not be possible. However, the identification of the dead body of Suresh Kumar had been done from a pair of black colour shoes and a sock which was found near Crl. Appeal No.D-226-DB of 2004 -31- the dead body. In case Suresh Kumar had been set on fire then his shoes like all other clothes would have got burnt and in case they were near the dead body the said fact would have been mentioned in the inquest report (Ex.PE) and they would have been recovered. It may be noticed that Kuldeep Singh (PW-6) Sarpanch of village Jastna Kalan had approached ASI Sadhu Ram (PW-10) on 20.02.2001. A day earlier i.e. on 19.02.2001 it is alleged that at about 11.00 am in the morning Shamsher Singh and Joginder Singh (appellants) had taken away Suresh Kumar, the husband of the complainant. The FIR, however, was registered on 17.03.2001 i.e. after almost a month. Sadhu Ram ASI (PW-10) also states that the police of Police Station Ladwa met him in March 2001. Dr. D. S. Bhullar (PW-12) who conducted the postmortem examination on the dead body on 20.02.2001 is not able to state the time between death and postmortem and in cross-examination he could not say whether this period was 7 days to 15 days. The time mentioned in postmortem examination, it is stated was incorporated as per police papers. This was not his personal observation. Therefore, these circumstances do create a reasonable doubt that the incident of 19.02.2001 was introduced by the prosecution as an unknown dead body had been found in the area of village Jastna Kalan, Police Station Lalru in Punjab on 20.02.2001. It is on that basis that Kela Devi (PW-1) states before the Police on 17.03.2001 that the appellants had taken her husband on 19.02.2001. The period of time between death and Crl. Appeal No.D-226-DB of 2004 -32- postmortem not being established, the death may have occurred even earlier to 20.02.2001 on which date the dead body is reported to have been seen by Kuldeep Singh Sarpanch of village Jastna Kalan who reported the matter to ASI Sadhu Singh (PW-10). Therefore, the identity of the dead body to be that of Suresh Kumar is doubtful and is not clearly established beyond shadow of reasonable doubt.
Regarding extra judicial confession, it may be noticed that the FIR in the case was lodged on 17.03.2001 and the accused (appellants) were arrested by ASI Chunni Lal (PW-14) on 19.03.2001 and they were kept in the police lock up. ASI Chunni Lal (PW-14) states that on 19.03.2001 at about 8.45 am, Roshan Lal Ex Member Panchayat (PW-7) met him and got his statement recorded under Section 161 Cr.P.C. According to Roshan Lal Ex. Member Panchayat (PW-7), it is stated by him that on 18.03.2001 both Joginder Singh and Shamsher Singh (appellants) came at his residence on a motorcycle make Hero Honda Splendour. At that time Shamsher Singh (appellant No.2) disclosed that one Suresh Kumar resident of Kheri Dabdlan had been working as a mason at his house for the last 1 ½ months and he did not paid his wages. Suresh Kumar used to harass his uncle's daughter and they had kidnapped him on 19.02.2001 and after taking him in the area of Dheermajra tied his hand and put him on a heap of 'parali' (paddy straw) and set him on fire. They had further disclosed that they had served him liquor and made him unconscious. From the deposition of Roshan Lal Crl. Appeal No.D-226-DB of 2004 -33- (PW-7) it may be noticed that the appellants are stated to have come together and made a joint statement. Roshan Lal is a resident of Benikhurd Distt. Karnal and according to him the appellants had tied the hands of Suresh Kumar in the area of Dheermajra and put him on a heap of 'parali' (paddy straw) and set him on fire. He does not say that the appellants had told him that Suresh Kumar was set on fire in the area of village Jastna Kalan where the dead body was found. Dheermajra is adjoining village of Jastna Kalan. In fact it is not shown as to how the appellants who are residents of village Ramba and village Niwarsi in Police Station Sadar Karnal and Police Station Ladwa respectively would know that they had reached village Dheermajra in the State of Punjab. Roshan Lal (PW-7) in his cross-examination states that he does not know the distance between his village and village Kheri Dabdlan and he had never visited village Kheri Dabdlan and also never visited village Niwarsi. He could not tell the distance between his village and village Niwarsi. It is also stated that prior to 18.03.2001, Shamsher Singh (appellant No.2) was not known to him. Joginder Singh (appellant No.1) is a resident of village Ramba, which was close to his village. He knew his father, however, Joginder Singh (appellant No.1) was not known to him. He did not know how many brothers, the father of Joginder Singh (appellant No.1) was having. He did not know any family member of Joginder Singh (appellant No.1). He did not know the location of the house of Joginder Singh (appellant No.1). He was not on visiting terms with Joginder Singh Crl. Appeal No.D-226-DB of 2004 -34- (appellant No.1) or with Shamsher Singh (appellant No.2). Sher Singh (DW-1) has stated that Roshan Lal (PW-7) was his maternal grand uncle and maternal uncle of Suresh Kumar (deceased). Therefore, Roshan Lal (PW-7) as per Sher Singh (DW-1) is related with Suresh Kumar (deceased). It is in fact not shown as to why the appellants would go to Roshan Lal (PW-7) and make a joint extra-judicial confession before him. Extra-judicial confession as is well-known is a very weak type of evidence and is to be appreciated and considered with great caution and circumspection. Such a confession must be established to be true and made voluntarily. It is required to be clear and unambiguous; besides, it must convey that the accused were the perpetrators of the crime. Conviction by itself is not to be based on a mere extra judicial confession. Besides, in case of a joint extra judicial confession it would require even greater caution as it is unlikely that two persons would jointly go together and state that they had committed the crime. Therefore, it may be noticed that the extra judicial confession said to have been made by the appellants before Roshan Lal (PW-7) does not inspire any confidence as he is said to be the maternal uncle of Suresh Kumar (deceased) by Sher Singh (DW-1).
Regarding recovery of motorcycle, it may be noticed that the motorcycle was recovered by ASI Chunni Lal (PW-14) on 20.03.2001. It was recovered from under the 'parali' (paddy straw) in the cattle room by the side of the house of Joginder Singh (appellant No.1). Disclosure Crl. Appeal No.D-226-DB of 2004 -35- statement (Ex.PN) was recorded. However, on 19.03.2001, Roshan Lal (PW-7) states that the appellants had come to him on 18.03.2001 on a Hero Honda 'Splendour' motorcycle. Therefore, according to the prosecution case, the appellants were using the motorcycle till 18.03.2001. The appellants were arrested on 19.03.2001. On 20.03.2001, the motorcycle was recovered from under the 'parali' (paddy straw) in the cattle room of Joginder Singh (appellant No.1). In case, the appellants had taken away Suresh Kumar (deceased) on 19.02.2001 as is the prosecution case, they would not be roaming around on the same motorcycle till 18.03.2001 and go to the house of Roshan Lal (PW-7) and then get the motorcycle recovered on 20.03.2001. This indeed creates a doubt as to the veracity of the prosecution case.
From the above facts, it is quite evident that:-
The identity of the dead body of Suresh Kumar is not clearly established and in the absence of identity of the dead body, in the facts and circumstances of the case, it would be unsafe to record a finding of guilt and conviction. It may be noticed that Roshan Lal (PW-7) states that the hands of Suresh Kumar were tied behind his back. However, there is no evidence to show that his hands were tied behind his back as the dead body was unrecognizable even from the photographs Ex.P9 to Ex.P14. It is identified from the pair of black colour shoes Ex.P1 and Ex.P2 and a sock Ex.P3 by Tara Chand (PW-3). However, no shoes or sock are shown to have been recovered or even mentioned in the inquest Crl. Appeal No.D-226-DB of 2004 -36- proceedings (Ex.PE). In all probability the recovery has been planted. A perusal of recovery memo (Ex.PF) regarding recovery of shoes shows that that the date of recovery is recorded as 20.03.2001. However, the figure '3' has been overwritten with '2'. In another words, the date 20.03.2001 has been changed to 20.02.2001, which also creates a doubt particularly when Sadhu Singh ASI (PW-10) states that the police of Police Station Ladwa met him in March, 2001. The pair of black colour shoes Ex.P1 and Ex.P2 and the sock Ex.P3 are not shown to be sealed with any seal. The recovery memo Ex.PF is signed by Karam Singh Sapranch Gram Panchayat Jastna Kalan and Head Constable Sajjan Singh. However, Karam Singh Sarpanch has not been examined in this case. The recovery of empty bottle of liquor vide recovery memo (Ex.PG) is inconsequential. No finger prints from the liquor bottle were taken to establish that these were those of the appellants or for that matter even those of Suresh Kumar (deceased).
The extra judicial confession of Roshan Lal (PW-7) does not inspire any confidence. He is stated by Sher Singh (DW-1) to be maternal uncle of Suresh Kumar (deceased). Roshan Lal (PW-7) has no association with the appellants. He merely states that father of Joginder Singh (appellant No.1) knew him. He, however, states that he was not on visiting terms with his family. He did not now how many brothers, the father of Joginder Singh (appellant No.1) were. There was no occasion for the appellants to go together and make a joint extra judicial Crl. Appeal No.D-226-DB of 2004 -37- confession. The extra judicial confession is a weak type of evidence.
The recovery of motorcycle make Hero Honda 'Splendour' is doubtful. Roshan Lal (PW-7) states that the appellants came to him on the said motorcycle on 18.03.2001. The appellants were arrested by ASI Chunni Lal (PW-14) on 19.03.2001 and the motorcycle is recovered from under the 'parali' (paddy straw) of the cattle room of Joginder Singh (appellant No.1) on 20.03.2001. In case the appellants had committed the murder and abduction of Suresh Kumar on 19.02.2001, they would not be roaming around on the same motorcycle. In fact Sher Singh (DW-
1) had stated that the motorcycle belongs to him. It is stated that the motorcycle bearing registration No.HR-05J-3026 was owned by him and it was with him since the time of purchase. Kela Devi (PW-1) his sister had asked for the motorcycle from him in Police Station Ladwa and same was kept in Police Station Ladwa. He obtained the same on 'superdhari'. It is stated that Kela Devi (PW-1) is his cousin sister. It is also stated that Suresh Kumar was a labourer and was not a mason. In cross- examination he denied the suggestion that on 19.02.2001, the motorcycle was taken by Joginder Singh (appellant No.1). The prosecution has not been able to state that as to in whose name the motorcycle was registered. The learned trial Court observed that the motorcycle undisputedly was owned by Sher Singh (DW-1) son of Birma Ram. ASI Chunni Lal (PW-14) has stated that Birma Ram father of Sher Singh is a relative of accused Joginder Singh (appellant No.1) and that the said Crl. Appeal No.D-226-DB of 2004 -38- accused had borrowed the motorcycle of Birma Ram. It is stated by ASI Chunni Lal (PW-14) that Birma Ram was a relation of Joginder Singh (appellant No.1) and Joginder Singh (appellant No.1) had borrowed the motorcycle from him and this fact was told to him (Chunni Lal ASI PW-14) by Birma Ram. However, neither Birma Ram nor his son Sher Singh (DW-1) was joined in the investigation. Therefore, the deposition of Sher Singh (DW-1) does create a doubt as regards the recovery of the motorcycle coupled with the fact that the appellants were stated to be riding on the motorcycle till 18.03.2001; besides, Sher Singh (DW-1) had taken the motorcycle from the Court on 'superdhari'.
Motive for the incident is very weak. It is not shown as to in what manner Suresh Kumar (deceased) had misbehaved with Nirmala and as to when he had misbehaved with her. According to Kela Devi (PW-1) there was some due from Shamsher Singh (appellant No.2) for the work of plastering that was done by Suresh Kumar in his house.
In order to base a conviction on circumstantial evidence it is to be clearly established by reliable and clinching evidence. The circumstances which are to be proved are to form such a complete chain of events which permit no other reasonable hypothesis other than that of guilt of the accused. The facts established are required not only to be consistent with the guilt of the accused but are to be inconsistent with his innocence. In the present case, the facts and circumstances as brought on record by the prosecution do not in any manner establish the guilt of Crl. Appeal No.D-226-DB of 2004 -39- the accused and are rather compatible with their innocence. The prosecution has not led unflinching evidence to hold the appellants guilty and in fact the evidence on record creates substantial doubt as to the truthfulness of the prosecution case. Therefore, it cannot be said beyond shadow of reasonable doubt that the prosecution has brought home the guilt of the appellants.
For the foregoing reasons the appeal is allowed and the judgment and order of the learned trial Court is set aside. Shamsher Singh (appellant No.2) is on bail and the bail bonds furnished by him shall stand discharged. Joginder Singh (appellant No.1) shall be set at liberty if not wanted in any other case.
(S.S. Saron) Judge (Jora Singh) Judge 05.03.2012.
A.kaundal