Punjab-Haryana High Court
Dhillu @ Devi Dayal And Another vs State Of Haryana on 25 January, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D 711-DB of 2008
Date of decision: 25.01.2012
Dhillu @ Devi Dayal and another
.....Appellants
Versus
State of Haryana
......Respondent
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.Akshay Bhan, Advocate for the appellants
Mr.G.S.Chahal, Addl.A.G. Haryana
Jasbir Singh, J.
In FIR No.100 dated 8.2.2007, police station City Bhiwani, appellant Dhillu @ Devi Dayal (A1), Prem @ Lat (A2) along with seven more persons were arrayed as accused. It was allegation against them that they on 7.2.2007 at 10.30 p.m. had abducted Mukesh (deceased) from his house in the presence of his wife and thereafter, he was murdered.
Vide the impugned judgment dated 23.9.2008, seven accused namely, Raj Kumar @ Raju, Jagdish @ Jaggi, Krishan, Vijender @ Kalia, Vinod @ Kalu, Ashok and Umed were acquitted by giving them benefit of doubt, however, A1 and A2 were held guilty and convicted for commission of offences punishable under Sections 201, 302, 364 and 452 of IPC. CRA-D 711-DB of 2008 2
Vide order dated 25.9.2008, following sentence was imposed upon them:-
"Keeping in view all facts and circumstances, accused are hereby sentenced to undergo rigorous imprisonment (R.I.) for three years each and to pay Rs.10,000/- each as of fine for the offence punishable under Section 201 of IPC. In default of payment of fine, they have to further undergo R.I. for six months. They are also sentenced to undergo life imprisonment each and to pay Rs.25,000/- each as of fine for the offence punishable under Section 302 of IPC. In default of payment of fine, they have to further undergo R.I. for two years. They are also sentenced to undergo R.I. for ten years each and to pay Rs.10,000/- each as of fine for the offence punishable under section 364 of IPC. In default of payment of fine, they have to further undergo R.I. for one year. They are also sentenced to undergo R.I. for three years each and to pay Rs.10,000/- each as of fine for the offence punishable under Section 452 of IPC. In default of payment of fine, they have to further undergo R.I. for six months."
All the substantive sentences were ordered to run concurrently. The period already spent in custody during investigation and trial was ordered to be set off against the substantive sentences.
Process of law was set in motion on a statement made by PW1 Birmati (wife of the deceased) in police station City Bhiwani, on the basis of which, an FIR (Ex.P1) was recorded on 8.2.2007 at 5.40 p.m. Her statement was recorded by SI Maha Singh - PW17 (the investigating officer). An FIR was registered for commission of offences under Sections CRA-D 711-DB of 2008 3 364, 452, 148, 149, 323, 506 IPC. A1 and A2 were arrested on 8.2.2007. Allegedly on a disclosure statement made by them, dead body of Mukesh was recovered, whereupon an offence under Section 302 IPC was added in the FIR (Ex.P1).
The trial Judge has noted the following facts regarding case of the prosecution:-
"On 8.2.2007 complainant Birmat came to P.S. City, Bhiwani alongwith her 'Jeth' (brother-in-law) Sunder and gave statement to the effect that she was married to Mukesh son of Pat Ram (since deceased) about five years ago. They were having two children who were residing with her mother in a house situated at Arya Nagar, Sansi Mohalla, Gohana. She was residing alongwith her husband in a house situated in street no.14, Shanti Nagar, Kaunt Road, Bhiwani. Her husband was having a maruti car, which was being used for sale of milk.
3. On 7.2.2007, at about 10.30 pm, they were present at house. In the meantme, accused Devi Dayal @ Dhillu son of Dula Ram r/o Sui, Prem @ Lat s/o Inder r/o Sui and Vinor S/o Ram Chander r/o Bhiwani came in a maruti car bearing registration no.DL-2-C-7958 which was being driven by accused Devi Dayal. They were having 'Paltas' in their hands and entered their house by force. From other side, Raju son of Bhura r/o Sui, Krishan Rajput r/o Haluwas, Umed alias Gila r/o Haluwas, Ashok r/o Devsar, Bijju r/o Kushumbhi and Kalia, servant of Dhillu, residing at Bhiwani and Jaggi son of Rambir r/o Bhiwani entered their house. They came on motor CRA-D 711-DB of 2008 4 cycles. Raju and Krishan were armed with iron rods and other persons were armed with 'lathis' (sticks). They were also dealing in the business of milk. They came to their house on the basis of conspiracy among them. They started giving beatings to her husband and stated that let he be finished. When she tried to rescue him, accused Dhillu gave 'palta' blow on her left shoulder. Due to fear, she did not intervene. Thereafter, all accused put her husband in maruti car and went away. Other accused followed car on their motor cycles. While going, they were saying that her husband would be finished. As she was alone, she was closed in her house. In the morning, she gave call to passers-by and got the door opened.
4. On 8.2.2007, she went to her matrimonial house at Sui in search of her husband. She narrated entire incident to her 'Jeth' Sunder. They tried to find out her husband but in vain. She was sure that accused abducted him to murder because there was a dispute of account in between them about sale of milk."
On the basis of above statement, investigation was taken up by the Investigating Officer (PW17). He sent Birmati (PW1) for medico-legal examination, which was conducted by Dr.Anil Chaudhary (PW12). This witness found the following injuries on the person of Birmati (PW1):-
"1. Complaining of pain over left shoulder with one contusion of the size of 6 x 2 cms. over upper part of left shoulder. Movements of left shoulder joint were painful and restricted. This injury was advised x-ray.CRA-D 711-DB of 2008 5
2. Complaining of pain over lower back and no external injury was present."
Both the injuries were kept under observation. This witness was advised X-ray, however, report was not shown to the witness.
In the meantime, the investigating officer went to house of the deceased, prepared a rough site plan (Ex.P93) with correct marginal notes. A1 and A2 were arrested at about 9.00 p.m. on 8.2.2007 from Amit Dairy Krishan Colony, Bhiwani. On disclosure statements made by A1 and A2 (Ex.P27 and Ex.P26 respectively), dead body of Mukesh was recovered from a well. It is necessary to mention here that the disclosure statements were also witnessed by Ram Phal (PW4). A1 and A2 also got demarcated the place, where injuries were given to the deceased i.e. Baba Balak Nath Stadium at Haluwas. The investigating officer took into his possession blood stained earth against recovery memo. The dead body was got photographed. The investigating officer conducted inquest proceedings at the dead body and sent it for post-mortem examination, which was conducted on 10.2.2007 by Dr.Vijay Pal Khanagwal (PW11). This witness found the following injuries on the person of the deceased:-
"1. Reddish contusion of size 7 x 5 cms. over the scalp at the top of head. On dissection, the underlying tissues were ecchymosed with infiltration of blood in the percranium. On further dissection of the cranium, there was a defused subdural haemotoma present over the cerebral hemispheres, size 5 x 4 cms corresponding to the site of contusion of scalp.
2. Reddish contusion of size 5 x 4 cms present over the scalp on left parietal region of scalp, 6 cms away from mid line, along the parietal eminence.CRA-D 711-DB of 2008 6
3. Reddish contusion of size 4 x 3 cms over the scalp on parietal region on right side, 7 cms away from mid line along the parietal eminence.
4. Reddish contusion of size 6 x 4 cms over the scalp on the occipital region, just above the occipital protuberance.
5. Reddish contusion (diffuse) over both the eye lids on the right as well as left side (periorbital tissues). Both eyes were black. The contusion extended over the middle of bridge of nose in midline and over the anterior halves of the zygomatic areas on both sides. The nasal bone was fractured alongwith infiltration of blood in the soft tissues including those of the peri oribital tissues and the subcutaneous of the zygomatic region.
6. Lacerated wound of size 2 x 1 cm over the lateral one- third of size supra-orbital margin with infiltration of blood in the underlying tissues.
7. Lacerated wound of size 3 x 1 cms over the chin along the interior border of mandible on left side 2 cms away from mid line.
8. Diffuse reddish contusion over posterior lateral aspect of right arm and elbow (involving lower half of arm and upper 1/4th of fore-arm). On dissection the underlying tissues were ecchymosed with fracture of humerus at the diaphyseo- epiphyseal line with infiltration of blood.
9. Diffuse reddish contusion of size 7 x 5 cms over the posterolateral aspect of right forearm just proximal to the wrist joint. Underlying tissues were ecchymosed. CRA-D 711-DB of 2008 7
10. Diffuse reddish contusion present over dorsal aspect of right hand, 7 x 5 cms. On dissection, underlying tissues were ecchymosed with fractures of the second to fourth metacarpals in their middle showing infiltration of blood.
11. Diffuse reddish contusion of size 8 x 5 cms over top of left shoulder.
12. Diffuse reddish contusion of size 9 x 6 cms over antero lateral aspect of lower 1/3rd of left arm and elbow joint, distal end of humerus was disarticulated from elbow joint with effusion of blood in the joint space.
13. Diffuse reddish contusion of size 20 x 8 cms over the lower 3/4th of left forearm.
14. Lacerated wound of size 2 x 1 cms over posterior aspect of proximal phalanx of left index finger. The proximal phalanx was fractured with effusion of blood in the trabeculae.
15. Tyre marks with grazed abrasion over the antero lateral aspect of the trunk on right side over an area 22 x 10 cms along the lateral aspect involving lower 1/3rd of chest wall and upper half of abdominal wall. Right lobe of liver was lacerated alongwith diffuse contusion of the gut with effusion of blood in the peritoneum cavity.
16. Diffuse reddish contusion of size 30 x 12 cms over anterior and antero lateral aspect of right leg and knee (involving upper half of leg and whole of the knee joint). Patella was dislocated and the fibula was fractured irregularly in multiple pieces in it's upper half with infiltration of blood. CRA-D 711-DB of 2008 8
17. A diffuse reddish contusion of size 22 x 7 cms over the medial aspect of lower ½ of the right thigh, knee and upper 1/4th of the leg.
18. Diffuse reddish contusion of size 8 x 5 cms over the posterior aspect of left thigh in it's middle.
19. Diffuse reddish contusion of size 12 x 6 cms over left popliteal fossa showing infiltration of blood.
20. Diffuse reddish contusion of size 30 x 11 cms over the lower half of left thigh along the medial and front of knee joint and antero medial aspect of upper 3/4th of left leg. The underlying tissues were ecchymosed with fracture of tibea at the junction of upper 3/4th and lower 1/4th whereas fibula was fractured in multiple pieces in it's lower 1/4th.
All the above injuries were ante mortem in nature as ecchymosed of underlying soft tissues and muscles was seen on their dissection. In addition to the above ante mortem injuries, the following injuries showing minimal infiltration of blood in the subcutaneous tissues and fractured bones were also noticed:
21. Tyre mark with grazed abrasion over an area 22 x 11 cms over the lateral aspect of upper part of right thigh and similar mark over the right iliac region in transverse direction.
The hip bone was fractured irregular which also showed minimal infiltration of blood.
22. A contusion over right ankle of size 6 x 4 cms at the level of malleoli (i.e. on medial as well as lateral). On dissection, CRA-D 711-DB of 2008 9 the lower ends of tibea and fibula, calcaneum and cuboid were found to be fractured with minimal infiltration of blood." As per opinion of this witness, cause of death was injuries described above, which were ante mortem in nature, sufficient to cause death in ordinary course. The probable time that elapsed between death and autopsy was between two to three days. This witness also stated that cloths and the dead body was smudged with mud and waterweeds at many places and it was emitting foul smell. Rigor mortis was present only in lower limbs (passing off phase). Other accused were also arrested in the meantime and on disclosure statements made by them, weapons of offences were recovered.
A1 and A2 were produced before Illaqa Magistrate on 9.2.2007. Their police remand was obtained. They were further interrogated on 10.2.2007 and on the basis of their disclosure statements (Ex.P73 and P74 respectively), A1's pant stained with blood was recovered. Similarly, a pant with blood stained which A2 was wearing at the time of alleged crime, was also recovered. Above disclosure statements and the recoveries were witnessed only by the official witnesses. Some of the accused were arrested by Inspector Suresh Kumar on 12.2.2007. On disclosure statements made by them, weapons of offence were recovered.
On completion of investigation, final report was put in Court. Case was committed to the Court of competent jurisdiction for adjudication. Copies of the documents were supplied to the appellants and other accused as per provisions of Section 207 Cr.P.C. They were charge sheeted on 6.8.2007, to which they pleaded not guilty and claimed trial. The prosecution produced 18 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, CRA-D 711-DB of 2008 10 statements of the accused were recorded under Section 313 Cr.P.C. A1 in answer to question No.15 has deposed as under:-
"I am innocent. We have been falsely implicated in this case. The dead body of deceased was searched/ found by complainant party and then police was informed. False recovery of dead body has been shown by the police. FIR and statements of witnesses were fabricated just to solve the police case. We never made any disclosure statement to the police. False recovery has been planted upon us to strengthen the prosecution case. We never took deceased from his house."
Similar stand was taken by A2 in his statement recorded under Section 313 Cr.P.C. Other accused also claimed false implication.
The trial Judge, on appraisal of evidence, found A1 and A2 guilty of the offences, with which they were charged, they were convicted and sentenced accordingly. However, other seven accused were given benefit of doubt and they were acquitted.
Counsel for the appellants has vehemently contended that it is a case of no evidence. All the material witnesses, including PW1 Birmati
-wife of the deceased, PW2 Sunder -brother of the deceased, Satbir (PW3), Ram Phal (PW4), Ved Parkash (PW5) and Dharambir (PW6) failed to support case of the prosecution. They were declared hostile, put to cross- examination by the State counsel, however, no material incriminating the appellants could be extracted from them. It is stated that there is no independent corroboration to the case of the prosecution. Ram Phal (PW4), before whom alleged disclosure statement, which led to the recovery of dead body, was made, has resiled from his statement. To the alleged recoveries and disclosure statements, there is no independent corroboration. CRA-D 711-DB of 2008 11 It was further stated that the story of the prosecution does not inspire confidence. Delay in getting the FIR recorded has not been explained. As per report of Forensic Science Laboratory (Ex.P103), it is no where stated that earth and other articles recovered were stained with human blood. By stating that the findings of the trial Judge are based upon conjectures and surmises, a prayer has been made to set aside the judgment and order under challenge and to acquit the appellants-accused, who have already suffered more than four years of sentence.
Prayer made has vehemently been opposed by the State counsel, who by making reference to the statements made by the investigating officer SI Maha Singh (PW17) and other official witnesses, argued that the case of the prosecution is fully proved on record. May be the eye witnesses have failed to support case of the prosecution, in view of facts and circumstances brought on record, conviction awarded to the appellants is perfectly justified. Dead body was recovered at their instance. Weapons of offence were also taken in possession on a statement made by them. Cloths stained with blood, which A1 and A2 were wearing, at the time of murder, were also recovered on a statement made by them. By stating that man may, but the circumstances will not tell lie, a prayer has been made to uphold the judgment and order under challenge and dismiss the appeal.
After going through the paper book and hearing counsel for the parties, this Court is of the opinion that it a case of no evidence against the appellants. Story projected by the prosecution is doubtful. As per case of the prosecution, in the presence of Birmati (PW1), Mukesh deceased was abducted by the appellants and other accused on 7.2.2007 at 10.30 p.m., injuries were also caused to PW1. House of the deceased is situated in a CRA-D 711-DB of 2008 12 thickly populated area. When all the accused had left the place, it was expected from PW1 that she would make a noise to attract the neighbours. Nothing was done. She kept mum and woken up only in the morning of 8th February 2007, got the door opened by making a call to some passerby. Surprisingly, instead of going to the police station, which is situated at a distance of two kms, she went to village Sui at a distance of about 20 kms. to intimate her relations. It is then stated that she along with Sunder (PW2) continued to search for the deceased and both went to the police station at 5.40 p.m. on 8.2.2007 when on her statement, FIR (Ex.P1) was recorded by SI Maha Singh (PW17). Huge delay went unexplained. It was known to PW1 that her husband had been abducted by nine persons, who were named in the FIR, then there was no compelling reasons for her to go to village Sui and thereafter continue to search for her husband.
It is positive case of the prosecution that death was caused at around 11.00 O'clock on 7.2.2007. Dead body was recovered on 8.2.2007 between 9.00 and 10.00 p.m. and thereafter, it was sent to the hospital. Post-mortem on the dead body was conducted by Dr.Vijay Pal Khanagwal (PW11) on 10.2.2007 at 10.50 a.m. This witness found 22 injuries on the person of the deceased and it was stated that the time elapsed between autopsy and death was between two to three days. The witness has further stated that rigor mortis on the dead body was present only on the lower limbs and it was in passing off phase. In this part of the country, ordinarily, rigor mortis take 12 hours to fully develop, it will stay on the body for next 12 hours and then pass off within next 12 hours. In view of facts of this case, if we rotate the clock back, it will not synchronize with the case of the prosecution i.e. time of conduct of post-mortem examination and alleged CRA-D 711-DB of 2008 13 commission of murder. This also castes doubt in the mind of the Court regarding time of the crime.
PW1 Birmati wife of the deceased, who allegedly had witnessed the abduction of Mukesh on 7.2.2007 at 10.30 p.m. has turned hostile. So is in the case of the Sunder (PW2) - brother of the deceased. The conviction primarily rests upon disclosure statements made by A1 and A2, who allegedly were arrested on 8.2.2007 within two/three hours of recording of the FIR, from a dairy situated in a thickly populated area. It appears, as if, that they were sitting and waiting for their arrest. At the time of their arrest, no independent person was joined in the investigation. Dead body allegedly was recovered on disclosure statements made by A1 and A2 on 8.2.2007 in the presence of Ram Phal and other police officials. Body was recovered from a well in village Haluwas. Jai Kumar (DW1), who is Panch of village Sui (village of the deceased) has categorically stated that Birmati (PW1) and Sunder (PW2) came to him and told him that Mukesh had gone with his friends and has not returned back. He went with them in search of Mukesh and then came to know that dead body was lying in well at village Haluwas. They went there along with Panchayat. Dead body was taken out from the well and then an intimation was given to the police. This witness has further stated that at the time of his death Mukesh deceased and his wife Birmati were residing in village Sui. When we analyze the statement made by PW1 to the police (Ex.P1) and statement made by DW1, it appears that this witness was telling the truth. The entire case seems to have been solved within two hours. A1 and A2 were arrested immediately after recording statement of DW1. Ram Phal (PW4) an independent witness has failed to support case of the prosecution regarding disclosure statements made and recovery of dead body at the instance of the appellants. To the CRA-D 711-DB of 2008 14 same effect is the statement of PW3 Satbir (cousin brother of the deceased). He has supported the DW1 in its entirety.
So far as recovery of the cloths worn by the accused at the time of alleged crime is concerned, it was witnessed only by the official witnesses. The recoveries were shown to have been made from houses of the accused, situated in populated area. No attempt was made to join any independent witness. Regarding recording of statements and above recovery, only official witnesses have supported case of the prosecution. There are discrepancies in the statements, so far as these witnesses are also concerned. PW16 Head Constable Om Parkash was witnessed to the above disclosure statements made by A1 and A2. In cross-examination, this witness has failed to give satisfactory answers put by the Court. The witness does not remember name of the chowkidar who was summoned to join investigation when Car was recovered. He has further stated that the police party remained at the place of recovery of cloths for about one hour but no independent witness was joined. PW17 SI Maha Singh has also admitted that at the time of recovery of cloths of A1 and A2, no independent witness was joined.
In view of above facts, recovery of cloths of the accused with blood stains becomes doubtful.
Not only as above, as per case of the prosecution, above cloths, the weapons of offence were sent to the Forensic Science Laboratory for examination. As per report (Ex.P103) on examination of cloths, traces of blood were detected. However, it is nowhere stated whether it was human blood or not. The matter was referred to the Serological analysis and as per report (Ex.P103/A), material was found disintegrated. No blood was detected on weapons of offence i.e. Paltas and sticks etc. During CRA-D 711-DB of 2008 15 investigation and trial, both the appellants have undergone about four years of imprisonment. All the material witnesses have resiled. There is no independent corroboration to the case of the prosecution. The official witnesses are discrepant on material aspects. On the basis of this type of evidence, it is very difficult to convict an accused.
In view of above, the appeal is allowed, judgment and order under challenge, are set aside and the appellants are acquitted of the charges framed against them. Appellants A1 and A2 who are in custody be released in this case, if they are not required in any other case.
(Jasbir Singh)
Judge
25.01.2012 (Sabina)
gk Judge