Punjab-Haryana High Court
State Of Haryana vs Amit Kumar on 29 September, 2008
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Misc. No.339-MA of 2008 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Misc. No.339-MA of 2008
Date of decision: 29.9.2008
State of Haryana
......Appellant
Versus
Amit Kumar
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Sh.P.S.Sullar, DAG, Haryana.
****
JUDGMENT
SABINA, J.
State has filed this application for grant of leave to file an appeal against the judgment dated 7.3.2008 passed by Additional Sessions Judge (Adhoc) Fast Track Court, Kurukshetra, whereby accused was acquitted of the charge framed against him under Section 302/ 377 read with Section 511 IPC.
Prosecution story, in brief, as noticed by the trial Court in para 1 of its judgment reads as under:-
"The prosecution case is that complainant Somi resided near Nabh Kamal Mandir, Bahri Mohalla Thanesar along with his wife Smt.Guddi and son Krishan @ Bulli whose age was about 15/16 years. The complainant earned his Criminal Misc. No.339-MA of 2008 2 livelihood by plying a mule cart by selling milk. He was keeping some milch buffaloes and he used to supply milk to different customers. On 6.3.2007 Krishan @ Bulli left his house at about 7.45 p.m. in the evening in order to supply the milk to Ram Chander Kabari resident of Shashtri Market, Thanesar, a customer of the complainant. He was carrying milk in a dollu (cylinder metal can). Krishan had left the house along with his mother Smt.Guddi on foot. They reached near the fodder cutting machine of one Happy. Smt. Guddi was to purchase fodder and krishan went ahead to deliver the milk to Ram Chander but Krishan never returned. Complainant and others searched for Krishan but in vain. On the next morning i.e. At about 7.30 a.m. on 7.3.2007 Basant and Som Nath came to house of the complainant where he was present along with his brother Attar Singh and Sukhdev and his elder son Kamal. They told them that dead body of Krishan was lying near the Ganda Nala near Theme Park. Then Somi along with his brothers and others went there and found that the dead body of his son Krishan was lying there. His dollu and chappals were lying near the dead body. There was no cloth on the dead body and it was lying naked. Underwear of Krishan was lying around his ankle and many persons had collected there. Police was informed and reached there. Criminal Misc. No.339-MA of 2008 3
Complainant Somi observed that Krishan was subjected to sodomy and was then murdered and he made statement Ex.PA to the police. It led to the registration of the case vide FIR Ex.PA/2 recorded by Amar Nath SI."
Investigating Officer lifted underwear, chappal, dollu (container with a lid and handle) and cream colour pant from the spot. Clothes belonging to the deceased were identified and were taken in possession. Dead body was sent for postmortem examination.
After completion of investigation and necessary formalities accused was sent up for trial. Charge against the accused was framed under Section 302/377 read with Section 511 IPC on 14.5.2007.
Prosecution in order to prove its case examined 15 witnesses. After the close of prosecution evidence, accused when examined under Section 313 Cr.P.C. prayed that he was innocent and had been falsely involved in this case. He did not examine any witness in his defence.
Learned trial Judge held that the circumstances brought on record were not sufficient to prove the guilt of the accused. Consequently, accused was acquitted of the charge framed against him by giving him benefit of doubt. Hence, the present application for grant of leave to file an appeal.
After hearing the learned State counsel and going through Criminal Misc. No.339-MA of 2008 4 the record available on file, we are of the opinion that the application deserves to be dismissed.
Dead body of deceased Krishan was found by PW-2 Basant on 7.3.2007 at about 7.30 a.m. near the Theme Park. He informed Veer Bhan, brother of the complainant in this regard. Complainant and his son were also present there.
Complainant, while appearing in the witness box, deposed with regard to missing of his son on 6.3.2007 after 7.45 p.m. and recovery of his dead body in the morning on the next day. Guddi, mother of deceased, has deposed that she had walked up to the fodder cutting machine along with her son and, thereafter, he had gone ahead to deliver milk to Ram Chander Kabari and on the next morning dead body of her son was recovered.
Dr.Rajesh Ghanghas, a member of the board of Doctors, proved the report of postmortem examination conducted by him along with others on the dead body of deceased Krishan on 7.3.2007. Eight injuries were found on the person of the deceased. Larynx and trachea contained blood mixed frothy discharge. In his opinion deceased was subjected to sodomy and the death in this case was due to administration of organic phosphorus pesticides.
Veer Bhan (PW-10), brother of the complainant, deposed that he had seen deceased Krishan along with accused Amit on 6.3.2007 at about 8.30 p.m. while he was plying his mule cart from the side of Kurukshetra University towards his house near Birla Mandir and the railway crossing. He knew the accused. At about Criminal Misc. No.339-MA of 2008 5 10.30 p.m. complainant came to his house and told him that Krishan had not returned home and was missing. He searched for Krishan along with his brother. On coming to know about an accident they went to the hospital but did not find Krishan there. Then they went to PGI, Chandigarh but could not find Krishan over there. In the morning they received an information that Krishan had been murdered and they should return back from Chandigarh. Dead body of Krishan was recovered from Theme Park. They suspected that accused had committed murder of Krishan after subjecting him to sexual intercourse against the order of nature.
Present case is based on circumstantial evidence. It has been held in Vasa Chandrasekhar Rao v. Ponna Satyanarayana, 2000(3) Recent Criminal Reports 96 (SC) that in a case of circumstantial evidence, in order to establish the guilt of the accused, it was necessary to prove the circumstances fully and it was further held as under:-
(i) "Circumstances should be conclusive in nature.
(ii) All facts so established, should be consistent only with hypothesis of the guilt and inconsistent with innocence.
(iii) Circumstances should exclude the possibility of guilt of any person other than the accused.
(iv) In order to justify an inference of guilt, circumstances must be incompatible with innocence of accused.
(v) Cumulative effect of the circumstances must be such Criminal Misc. No.339-MA of 2008 6 as to negate the innocence of the accused and bring home the offence beyond reasonable doubt.
(vi) Where accused on being asked, offers no explanation or explanation is found to be false, then that itself forms an additional link in chain of circumstances."
In the present case prosecution has mainly relied upon the circumstance that deceased was last seen in the company of the accused. However, the fact that Veer Bhan (PW-10) had seen the deceased in the company of the accused was not disclosed by him to his brother at 10.30 p.m. on 6.3.2007 when he came to his house to inform him that his son Krishan was missing. The said witness went along with the complainant to the hospital at Kurukshetra and PGI, Chandigarh in search of Krishan but did not bother to inform the complainant that he had seen the deceased with the accused in the evening at about 8.30 p.m. When the statement of the complainant was recorded at about 11.00 a.m. on 7.3.2007, the fact that deceased had been last seen in the company of the accused is not mentioned as in normal circumstances Veer Bhan would have disclosed the circumstance of last seen to his brother. This conduct of PW Veer Bhan is most unnatural and renders his statement untrustworthy.
The doctor, who had conducted the postmortem examination on the dead body of the deceased, opined that probable duration between death and postmortem examination was 36 hours. The postmortem examination was conducted on 7.3.2007 at 6.20 Criminal Misc. No.339-MA of 2008 7 p.m. Thus, the medical evidence does not corroborate the testimony of PW Veer Bhan regarding the circumstance of last seen.
In these circumstances the learned trial Judge has rightly held that the complete chain of circumstances had not been proved by the prosecution with regard to the guilt of the accused and hence, acquitted the accused.
Accordingly, this application is dismissed.
(SABINA) JUDGE (JASBIR SINGH) JUDGE September 29, 2008 anita