Punjab-Haryana High Court
Nirmal Singh vs State Of U.T. Chandigarh on 2 April, 2012
Author: Alok Singh
Bench: Alok Singh
Crl. Appeal No.136-DB of 2009
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.136-DB of 2009
Date of Decision: 02.04.2012
Nirmal Singh
....Appellant
Versus
State of U.T. Chandigarh
....Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE ALOK SINGH
Present: - Mr. R.S. Cheema, Sr. Advocate, with
Ms. Tanu Bedi, Advocate, for the appellant.
Mr. Hemant Bassi, Advocate, for U.T., Chandigarh.
1.Whether to be referred to the Reporters or not?
2.Whether the judgment should be reported in the Digest?
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ALOK SINGH, J.
1. The judgment dated 29.1.2009 passed by learned Sessions Judge, Chandigarh, in Sessions Case No.21 of 7.3.2007 (FIR No.454 dated 16.11.2006 under Sections 302, 34 IPC, Police Station, Sector 34, Chandigarh), is the subject matter of challenge in the present appeal. The learned Sessions Judge has found appellant-accused guilty for committing murder of his wife Malkiat Kaur and has sentenced the accused-appellant to undergo imprisonment for life and to pay a fine of Rs.5,000/-. In default of payment of fine to further undergo imprisonment for six months under Section 302 IPC.
2. The prosecution version inter alia is that on 16.11.2009 Inspector Jagir Singh was present in Police Station Industrial Area, Chandigarh; at about 6.30 a.m. Surinder Singh along with accused Nirmal Singh and Ajit Pal Singh came to the police station; Surinder Crl. Appeal No.136-DB of 2009 -2- Singh stated that while he was returning to house at about 6.15 a.m. from morning walk, he saw accused Nirmal Singh, resident of H. No.557, Sector 32-A, Chandigarh, standing along with his son Ajit Pal Singh; both of them were perplexed. Surinder Singh gave them assurance of keeping every information divulged to him as secret and asked them to tell him what had happened. Ajit Pal Singh then confided in him that on 15.11.2006 at about 9.30 p.m. he and his father Nirmal Singh had murdered his mother Smt. Malkiat Kaur as the entire family was upset on account of her behaviour; accused were feeling ashamed from the neighbours and relatives; Nirmal Singh caught hold of Malkiat Kaur, when she was preparing the meal in the kitchen, and Ajit Pal Singh gave darat blow on her head and neck as a result of which she fell on the floor; his father told that she was still alive and on this Ajit Pal Singh gave more darat blows on her hand etc. and thereafter Malkiat Kaur died. Both the accused had requested Surinder Singh to produce them before the police; Nirmal Singh has supported the statement made by his son Ajit Pal Singh. Consequently, FIR was registered. The body of deceased-Malkiat Kaur was recovered from the kitchen.
3. Learned Sessions Judge, vide impugned judgment, did not find Ajit Pal Singh guilty and has acquitted him. No appeal has been preferred against the acquittal of Ajit Pal Singh. However, learned Sessions Judge has found present accused-Nirmal Singh guilty for an offence punishable under Section 302 IPC and has convicted-sentenced him to serve life imprisonment.
4. Feeling aggrieved, Nirmal Singh has approached this Court by way of present statutory appeal.
Crl. Appeal No.136-DB of 2009 -3-
5. We have heard Mr. R.S. Cheema, learned Senior Advocate, assisted by Ms. Tanu Bedi, Advocate, for the accused-appellant and Mr. Hemant Bassi, learned counsel appearing for the Chandigarh Administration, and have perused the record.
6. In the present case, there is no eyewitness of the crime. The prosecution is banking upon the extra-judicial confession made by both the accused to Surinder Singh. It is also banking upon disclosure statement made by accused-Ajit Pal Singh and consequent recovery of the weapon of offence on the pointing out of Ajit Pal Singh. The prosecution is also heavily relying upon alleged recovery of blood soaked pyjama of accused-Nirmal Singh pursuant to his disclosure statement and pointing out. As per inquest report, some hairs were found in the right hand of the deceased at the time of spot inspection and recovery of dead body by the police.
7. As per extra-judicial confession, it is Ajit Pal Singh who has caused injuries on the body of the deceased with darat and darat was said to be recovered on the pointing out of Ajit Pal Singh. Ajit Pal Singh has not been found guilty by the trial Court.
8. Mr. Cheema, learned senior counsel, has vehemently argued that hairs found in the right hand of the deceased were not got matched with the hairs of the accused to connect the accused with the crime and also to conclude that while accused were attacking the deceased, hairs of the accused had fallen in the right hand of the deceased. Mr. Cheema has further argued that as per the extra-judicial confession darat blows were given by Ajit Pal Singh and no injury has been attributed to the present appellant; the role attributed to the appellant-accused is that he Crl. Appeal No.136-DB of 2009 -4- caught hold of the deceased and Ajit Pal Singh had given vital blows. According to Mr. Cheema, since Ajit Pal Singh, the son of the deceased and accused-appellant, is not found guilty of the murder of Smt. Malkiat Kaur, therefore, present appellant-accused cannot be held guilty of murder of Malkiat Kaur with the help of Section 34 IPC. Mr. Cheema has further argued that accused cannot be held guilty merely because his wife was found murdered in his house and his conviction with aid of Section 106 of the Evidence Act by the learned Sessions Judge is absolutely wrong. According to the learned counsel, appellant along with his son Ajit Pal Singh had left his home for the jagrata (overnight worship of the Goddess) in Mohali at the residence of Harbans Lal Kalia and has been falsely implicated in the present case.
9. Mr. Hemant Bassi, learned counsel appearing for U.T., Chandigarh, has vehemently argued that Smt. Malkiat Kaur was found murdered in the house owned by accused-appellant, therefore, accused has to show the circumstances under which she has died; learned trial Judge has rightly convicted the appellant with the help of Section 106 of the Evidence Act. He has further argued that defence of the accused that they have gone to Mohali, after leaving Smt. Malkiat Kaur back in the home, to attend jagran does not inspire confidence; usually ladies would go to jagrans.
10. It is important to note that Surinder Singh PW1, before whom extra-judicial confession by the accused-appellant and his son Ajit Pal Singh was made, did not support the prosecution story. There is nothing on record to show that Surinder Singh was very close to the accused or was such an influential personality of the area of Sector 32, Chandigarh, Crl. Appeal No.136-DB of 2009 -5- that the accused would make extra-judicial confession to him and would have requested him to produce them before the police. Rather it is proved on record that Surinder Singh is a taxi driver. The authenticity of extra-judicial confession made by accused to a passerby does not inspire confidence especially when Surinder Singh has not supported it in the witness box.
11. It is true that the house from where the dead body was found belongs to the appellant-accused. The provisions of Section 106 of the Evidence Act apply more readily to civil and less serious offences. In order to attract application of Section 106 of the Evidence Act more reliable, unfailing chain of circumstantial evidence and proving the capital crime in material particulars. It cannot be applied to make up for the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. Ordinarily, the burden of proving every ingredient of the offence charged is invariable on the prosecution and cannot be shifted merely on the ground that this is a fact within his knowledge. It appears to us that Section 106 has never been intended to be used to place upon the accused the burden of proving him innocence. The burden requires to be discharged is to explain the circumstances leading to the commission of crime. Now, we have to see as to whether simply because dead body was found in the house of the appellant, would justify the conviction of the appellant by invoking Section 106 of the Evidence Act? Firstly, we proceed to examine the law on the subject with help of latest judgment of Hon'ble the Supreme Court.
12. Hon'ble Apex Court in the case of Musheer Khan alias Badshah Khan and another Vs. State of Madhya Pradesh, (2010) 2 Crl. Appeal No.136-DB of 2009 -6- Supreme Court Cases 748, in para Nos.39 to 46, has observed as under:
"39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.
40. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical formula" since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.
41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (see Raghav Prapanna Tripathi v. State of U.P., AIR 1963 SC 74 : (1963) 1 Cri LJ 70).
42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person that the accused. (see State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 :
1992 SCC (Cri) 642 : 1992 Cri LJ 3693).
43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor, 21 CWN 1152 : 43 IC 241 that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.
44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other Crl. Appeal No.136-DB of 2009 -7- reasonable hypothesis except his guilt.
45. When a murder charge is to be proved solely on the circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor, 11 CWN 1085, it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.
46. The same principles have been followed by the Constitution Bench of this Court in Govindra v. State of Mysore, AIR 1960 SC 29 : 1960 Cri LJ 137 where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 : 1953 Cri LJ 129. The ratio in Govind quoted in AIR para 5, p. 30 of the Report in Govinda Reddy are: -
"5. ...... '10. ...... in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully establishes, and all the facts so establishes should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that which all human probability the act must have been [committed] by the accused."
13. Having perused the judgment in the case of Musheer Khan (supra), we are of the firm opinion that in a murder case presumption of innocence of accused must have a dominant role unless proved Crl. Appeal No.136-DB of 2009 -8- otherwise by cogent evidence proving complete chain of circumstances. As per the judgment in the case of Nibaran Chandra Roy, as discussed in the case of Musheer Khan (supra) whatever force a presumption under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence. Therefore, in the case of murder, Section 106 of the Evidence Act ordinarily should not be pressed in service to controvert the presence of innocence and there must be a complete chain of circumstances to prove the guilt of the accused beyond reasonable doubt.
14. In the present case, as discussed hereinabove, weapon of offence and fatal injuries are not attributed to the accused-appellant; there is no eyewitness; extra-judicial confession made to Surinder Singh, taxi driver, does not inspire confidence; Ajit Pal Singh, to whom fatal injuries on the person of Malkiat Kaur and weapon of crime are attributed, has already been acquitted by trial Court; no appeal was even preferred against the acquittal, therefore, conviction of the accused by invoking presumption under Section 106 of the Evidence Act seems to be unjustified. In our opinion, prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
15. In the present case, the defence taken is that in the intervening night of 15.11.2006/16.11.2006 appellant was away to Mohali in jagrata at the residence of Harbans Lal Kalia. Bir Chand Kalia DW2, brother of Harbans Lal Kalia, has stated on oath that accused were present in the jagrata on the intervening night of 15.11.2006/16.11.2006 and he has dropped the accused in the morning of 16.11.2006 near the Crl. Appeal No.136-DB of 2009 -9- house of the accused. Theory of defence of the accused that he was present in the jagrata cannot be ruled out completely. Therefore, accused-appellant is entitled for benefit of doubt. Consequently, conviction and sentence of the accused is totally unjustified.
16. As a sequel to the above discussion, the present appeal is allowed. The impugned judgment passed by learned trial Judge is set aside. The accused-appellant stands acquitted of the charges. Let the accused-appellant be released forthwith, if not wanted in any other case.
(M.M. Kumar) Judge (Alok Singh) Judge April 02, 2012 R.S.