Punjab-Haryana High Court
Amarjeet Alias Amar vs State Of Haryana on 11 September, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: September 11, 2012
(i) Crl. Appeal No.D-673-DB of 2006
Amarjeet alias Amar
...Appellant
VERSUS
State of Haryana
...Respondent
(ii) Crl. Appeal No.D-681-DB of 2006
Smt.Ramzana
...Appellant
VERSUS
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE INDERJIT SINGH
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Present: Mr.M.B.Jain, Advocate
for appellant Amarjeet alias Amar
(in CRA No.D-673-DB of 2006)
Mr.A.S.Sullar, Advocate
for appellant Smt.Ramzana
(in CRA No.D-681-DB of 2006)
Mr.Paramjeet Batta, Addl. Advocate General, Haryana
for the respondent-State.
INDERJIT SINGH, J.
This judgment shall dispose of two connected criminal appeals; CRA No.D-673-DB of 2006 and CRA No.D-681-DB of 2006 arising out of the judgment/order dated 19.07.2006, passed by Addl. Crl. Appeal No.D-673-DB of 2006 & connected appeal -2- Sessions Judge, Sirsa convicting and sentencing the appellants to undergo rigorous imprisonment for life and to pay a fine of ` 5000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each, on each count under Sections 302 and 120 B IPC. Accused-appellant Amarjeet was also convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of ` 2000/- and in default of payment of fine to further undergo rigorous imprisonment for six months under Section 201 IPC. All the sentences were ordered to run concurrently.
The brief facts of the prosecution story are that Liyakat Ali, husband of Smt.Ramzana was earning livelihood of his family by doing labour and they were residing separately from parents of Liyakat Ali. Smt.Ramzana wife of Liyakat Ali got recorded DDR No.15 dated 02.12.2004 with police station Ellanabad, District Sirsa, in which she stated that about six months prior to that day, her husband and she did labour work with Amarjeet Bajigar resident of Tibbi (Rajasthan). On account of intimacy, Amarjeet came to their house on 10.11.2004 and after some time he accompanied her husband Liyakat Ali and went to village Tibbi (Rajasthan) for doing labour. After 3-4 days earlier, when she made enquiry from Amarjeet regarding her husband on telephone, he told that her husband used to do the job of Palledari and after settling the account regarding his labour, he had left his house at village Tibbi two days earlier. She also stated that she had been waiting for her husband till then but her husband had not arrived from Tibbi. She also stated that they have no enmity with anyone nor there is any suspicion upon anyone till Crl. Appeal No.D-673-DB of 2006 & connected appeal -3- then. Later on FIR was registered on the statement of Roshan Khan brother of Liyakat Ali in which he stated that his brother Liyakat Ali and Kashmir reside separately from them. Liyakat Ali is married to Smt.Ramzana for the last about 12-13 years and reside separately from them in a rented room of the house of Sadhu Madhu Sardars for about last 5-6 years. His brother Liyakat Ali and his wife along with their children had stayed with Amar alias Amarjeet for about one month for doing labour work. Thereafter, his brother left his wife Ramzana at Ellanabad. Amarjeet had developed illicit relations with Ramzana. On account of being humiliated, his family was under
great tension due to their illicit relations. His brother use to tell them that he remain under great tension on account of illicit relations between Ramzana and Amarjeet. On this issue, a conflict took place between his brother Liyakat Ali and Amarjeet and from that day, he and his mother Khatun Begam had threatened Amarjeet and asked him that he would not visit the house of Liyakat Ali in future. On this issue, Amarjeet and Ramzana made a plan and on the night of 08.11.2004, Amarjeet came to the house of his brother from Tibbi and took his brother Liyakat Ali to his house after enticing him and giving him greed of providing labour. Later on, when the complainant made enquiry from Ramzana, she told him that his brother Liyakat Ali had accompanied Amarjeet to Tibbi for doing labour. The complainant also stated that he kept on searching his brother but his brother has not reached the house nor his whereabouts are known.
He and his family have suspicion that Ramzana and Amarjeet after hatching a conspiracy and with pre-planning, have confined his Crl. Appeal No.D-673-DB of 2006 & connected appeal -4- brother Liyakat Ali at some unknown place with the intention to commit his murder or have committed his murder. The statement was recorded by Umed Singh, ASI on 16.01.2005. After making endorsement, ruqa was sent, on the basis of which FIR was registered on the same day. As per prosecution version, both the accused made extra judicial confession before Mushtakh Khan, another brother of Liyakat ali and he produced both these accused before the police on 16.01.2005. On 17.01.2005, I.O. Umed Singh, ASI interrogated both the accused. Both the accused made statements that they had thrown Liyakat Ali in Rajasthan canal after committing murder. Statement of witnesses are recorded.
After necessary investigation, challan was presented against the accused-appellants. On presentation of challan, the appellants were charge-sheeted under Sections 120B, 302 IPC and accused Amarjeet was also charge-sheeted under Section 201 IPC, to which the appellants pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Constable Lilu Ram, who mainly deposed regarding delivery of special report. PW-2 Constable Ram Niwas, who proved DDR No.15 dated 02.12.2004. PW-3 Bhagirath, ASI, who got recorded the statement of Ramzana which was recorded in the Daily Diary Register at Sr.No.15 dated 02.04.2012. PW-4 Inspector Dharam Singh, who mainly deposed that PW Mushtakh Khan produced before him accused Amarjeet Singh and Ramzana and he recorded the statement of Mushtakh Khan and he prepared the report under Section 173 Cr.P.C. PW-5 Roshan is complainant and brother of the Crl. Appeal No.D-673-DB of 2006 & connected appeal -5- deceased Liyakat Ali. He deposed as per prosecution version. PW-6 Satpal Singh is the owner of the Tractor, who stated that in the month of November, 2004, accused Amarjeet was employed as driver on his tractor. In the month of November 2004, he received a telephonic message that his tractor trolley was standing in the trolley stand and driver has left the same there. The call was made by Amarjeet stating that he was suffering from fever. On this information, he brought his tractor trolley to his house from trolley stand, Tibbi and then he produced his tractor before the police. PW-7 Anand Singh, Sub-Inspector (Retd.), mainly deposed that on 18.01.2005, he was posted as Sub-Inspector at Police Station Ellanabad. On that day he took accused Amarjeet from police lock-up to Raj Canal, which is at a distance of 7-8 kms. from village Talwandi Khurd and accused demarcated the place where they had thrown the dead body of Liyakat Ali and he has prepared demarcation memo Ex.PD. PW-8 Constable Mohan Lal mainly deposed regarding preparing of scaled site plan. PW-9 Manoj Kumar, SI also deposed regarding interrogation of accused Amarjeet. He also deposed regarding taking of one photograph into police possession. PW-10 Askeel Khan is brother of Liyakat Ali (deceased). He also deposed as per prosecution version. He further deposed regarding missing of Liyakat Ali from the house and suspected that Ramzana and Amarjeet have murdered Liyakat Ali or they have concealed him somewhere. PW-11 Mushtakh Khan, is the brother of Liyakat Ali (deceased), who mainly deposed that the whereabouts of his brother are not known. Since the period of 12-13 months have elapsed, he Crl. Appeal No.D-673-DB of 2006 & connected appeal -6- must have been murdered. He also deposed regarding the fact that on 16.11.2004 accused Amarjeet and Ramzana both had met him at Talwara Jheel and they have told him that they had murdered Liyakat Ali and thrown his dead body in the canal. In the meantime, ASI Umed Singh also reached at Talwari Jheel and arrested both the accused then and there. PW-12 Umed Singh ASI, mainly deposed regarding the investigation of the case.
At the close of the evidence, the accused-appellants were examined under Section 313 Cr.P.C. and the accused-appellants denied the correctness of the evidence and pleaded themselves as innocent. Accused Ramzana also taken the plea that complainant Roshan Khan, real brother of her husband, wanted to develop illicit relations with her for which she refused and on that account Roshan Khan got her falsely implicated in this case. Accused Amarjeet taken the plea that the complainant Roshan Khan use to demand money from him but he refused to pay him any amount and that is why he has been falsely implicated in this case.
On the basis of the evidence produced by the prosecution, accused-appellants Amarjeet and Ramzana were convicted and sentenced as stated above.
At the time of argument, learned counsel for the appellants contended that it is a case of circumstantial evidence but chain of circumstances is not complete and there are missing links. The dead body has not been recovered. No clothes of the deceased were recovered. No weapon of offence has been recovered. There is no evidence on record to prove the death of Liyakat Ali. He next Crl. Appeal No.D-673-DB of 2006 & connected appeal -7- argued that the only evidence produced against the accused- appellants is extra judicial confession, stated to be made before PW- 11 Mushtakh Khan but this evidence is also not reliable. Firstly, Mushtakh Khan is the real brother of Liyakat Ali (deceased). Secondly, he himself in cross-examination has stated that he has strained relations with Ramzana. If it is the case, then why she will make extra judicial confession before him. Further, while appearing as PW-11, Mushtakh Khan has not given the detailed facts regarding the extra judicial confession and he deposed regarding joint confession made by both the accused, which cannot be relied upon. In Chief-examination, in his statement also, he has only suspicion regarding murder of Liyakat Ali by the accused-appellants. Learned counsel for the appellants also argued that even strong suspicion cannot take place of proof. He further contended that the dates given by PW-11 Mushtakh Khan regarding extra judicial confession and production of the accused-appellants by him are incorrect. Learned counsel next contended that the mother of Liyakat Ali and other brother Kashmir have not been examined to prove illicit relations. There is no cogent evidence on record to prove illicit relations between Ramzana and Amarjeet. Therefore, he argued that a reasonable doubt exists in the present case and the appeals should be accepted.
On the other hand, learned Additional Advocate General, Haryana for the respondent-State has argued that the case of the prosecution has been duly proved from the statements of PW-5 Roshan Khan-complainant, PW-10 Askeel Khan and PW-11 Crl. Appeal No.D-673-DB of 2006 & connected appeal -8- Mushtakh Khan, to whom the extra judicial confession was made by both the accused. He also argued that DDR report made by Ramzana was false. He argued that both the appeals should be dismissed having no merits.
We have heard the learned counsel for the parties and have gone through the evidence on record minutely and carefully. From the evidence on record we find merits in the arguments of the learned counsel for the appellants.
First of all, in the present case dead body was not found. No clothes of the deceased were found. No weapon of offence was found. There is not even any cogent evidence on record to prove the death of Liyakat Ali, much less murder by the accused-appellants. As regarding three brothers of Liyakat Ali i.e. PW-5 Roshan Khan- complainant, PW-10 Askeel Khan and PW-11 Mushtakh Khan have appeared to support the prosecution version, PW-5 Roshan Khan in cross-examination has stated that he and other family members simply had a doubt that accused-Amarjeet developed illicit relations with Smt.Ramzana but they did not see them in such a situation, which means that even regarding illicit relations PW-5 has suspicion only. In chief examination, he also stated that he do not know whether his brother is alive or dead. He stated that both the accused seems to have murdered his brother Liyakat Ali. This fact also shows that he was suspecting that his brother has been killed. In chief examination he also stated that his brother has been missing from their house from the last about 12 months and they had a doubt that he was taken by accused Amarjeet somewhere and was missing. Crl. Appeal No.D-673-DB of 2006 & connected appeal -9- From this statement, neither it can be held that accused Amarjeet and Ramzana had illicit relations nor it is proved that Liyakat Ali has been murdered or in other words not alive.
PW-10 Askeel Khan also in chief examination has stated that his brother Liyakat Ali was missing from his house since 08.11.2004. In chief examination, he also stated that when his brother did not return for 2/2½ months, he suspected that both Ramzana and Amarjeet have murdered Liyakat Ali or they have concealed him somewhere. The statement of PW-10 again shows that he has only suspicion that Liyakat Ali has been murdered or has been concealed somewhere. In cross-examination he stated that he did not know Amarjeet prior to this occurrence. Later on, he stated that he had got registered this case against the accused on suspicion.
Similar is the statement of PW-11 Mushtakh Khan, who stated that the whereabouts of his brother Liyakat Ali are not known even till date. Since a period of 12-13 months have elapsed, he must have been murdered. This statement also shows that witness was not sure whether Liyakat Ali is alive or has been murdered. There is no evidence as already discussed regarding the death of Liyakat Ali. There is no direct or circumstantial evidence to prove his death.
As regarding extra judicial confession, we find that it is not reliable. Firstly the dates given by PW-11 Mushtakh Khan in his statement are incorrect. He has deposed that on 16.11.2004 accused Amarjeet and Ramzana made extra judicial confession and they were arrested then and there, whereas, as per prosecution version, they Crl. Appeal No.D-673-DB of 2006 & connected appeal -10- were arrested on 16.01.2005. Secondly, no particulars of any type has been given by this witness in the court regarding extra judicial confession. He has simply stated that both the accused told him that they had murdered Liyakat Ali and had thrown dead body in the canal. This extra judicial confession is joint extra judicial confession. Thirdly it looks improbable that Ramzana will make extra judicial confession to PW-11 Mushtakh Khan, real brother of Liyakat Ali and further when PW-11 himself has admitted that he was having strained relations with Ramzana. If it is so, why Ramzana will make extra judicial confession to him. Otherwise also, extra judicial confession is a weak type of evidence. In chief examination, he has stated that Amarjeet took his brother Liyakat Ali with him but this fact when confronted, are not found recorded in his statement given to the police. In cross-examination he also stated that he was not present at the house of his brother Liyakat Ali when accused Amarjeet taken his brother with him. He also deposed that the entire story was told to him later on by his bhabhi Ramzana. There is no evidence on record to prove any criminal conspiracy between accused Amarjeet and Ramzana to commit murder. Mother of Liyakat Ali has not been produced to prove the illicit relations between Ramzana and Amarjeet nor other brother Kashmir, who was residing separately, has been examined.
PW-5 Roshan Khan-complainant, PW-10 Askeel Khan and PW-11 Mushtakh Khan are admittedly residing separately from Liyakat Ali. Therefore, it looks doubtful that they were knowing regarding facts that Amarjeet used to visit the house of Ramzana or Crl. Appeal No.D-673-DB of 2006 & connected appeal -11- having any illicit relationship etc. with her. As per statements, they have only suspicion. As already discussed, suspicion cannot take place of proof.
From the above discussion, we find that chain of circumstances is incomplete in the present case. There are missing links. The evidence produced on record don't point towards guilt of the accused-appellants. Further, even the death of Liyakat Ali is not proved in the present case. Therefore, we find merits in the arguments of the learned counsel for the appellants. A reasonable doubt exists in the prosecution version and benefit is to go to both the appellants. Hence giving benefit of doubt, both the appellants are held not guilty.
In view of the above, both the appeals are allowed. The judgment of conviction and order of sentence, passed by the trial Court, is set aside and the appellants are acquitted of the charges, framed against them. Accordingly, appellant Amarjeet alias Amar, who is in custody, be set at liberty forthwith, if not required in any other case.
(SATISH KUMAR MITTAL) (INDERJIT SINGH)
JUDGE JUDGE
September 11, 2012
Vgulati