Punjab-Haryana High Court
Ompal And Others vs State Of Haryana on 18 January, 2012
Author: S.S. Saron
Bench: S.S. Saron
CRA No. 612-DB of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No. 612-DB of 2010
Date of decision : 18.1.2012
Ompal and others
.... Appellants
Versus
State of Haryana
.... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE M. JEYAPAUL.
Present: Mr. Sukhdeep Parmar, Advocate for the
appellants.
Mr. G.S. Sandhu, AAG, Haryana.
S.S. SARON, J.
The appeal has been filed by the appellants against the judgment of their conviction dated 26.4.2010 and the order of sentence dated 27.4.2010 passed by the learned Additional Sessions Judge, Jhajjar whereby the appellants have been convicted for the offences punishable under Sections 148, 302/149 and 404 Indian Penal Code ('IPC' - for short). They were, however, acquitted for the offence punishable under Section 201 IPC. Accordingly, the appellants were sentenced to undergo rigorous imprisonment for two years each for the offence under Section 148 IPC; rigorous imprisonment for life, besides, pay a fine of Rs.20,000/- each and in default of payment of fine to undergo further rigorous imprisonment for two years each for the offence under Section 302 IPC and rigorous imprisonment for two years, besides, pay a fine of Rs.5000/- Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -2- each and in default of payment of fine, to undergo further rigorous imprisonment for six months each for the offence under Section 404 IPC. The sentences of imprisonment were, however, to run concurrently.
The FIR (Ex.P35) in the case has been registered on the basis of statement (Ex.P1) of Ravinder Singh (PW1) son of Sarup Singh made before SI/SHO Hari Singh, Police Station Linepaar, Bahadurgarh (PW11) on 12.7.2008. According to the complainant Ravinder Singh (PW1), he was a resident of Street No.7, Shankar Garden, Linepaar, Bahadurgarh and was a pensioner from the military service. He had two buffalos and was grazing his buffalos in the vacant field near Kamal Colony, Bahadurgarh. There he came to know that a dead body of an unknown person was lying in the dirty/muddy water on the 'dol' (ridge) of the field. He went there and saw an undressed dead body of a person lying there. There were injuries seen on his mouth, head and testicles. It seemed that some unknown person had been murdered and his dead body was thrown there. Ravinder Singh (PW1) was going to lodge a report in this matter that SI/SHO Hari Singh, Police Station Linepaar, Bahadurgarh (PW11) met him on the unmetalled Barahi road and he got his statement (Ex.P1) recorded, which was heard and accepted as correct. The said statement was signed by Ravinder Singh (PW1) in Hindi and was attested by SI/SHO Hari Singh (PW11). Police proceedings (Ex.P13) were recorded by SI/SHO Hari Singh (PW11) to the effect Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -3- that on 12.7.2008 he along with ASI Kartar Singh, EHC Mohan, and Constable Bhupinder in a government Gypsy vehicle No. HR 63- 7803 which was driven by EHC Siri Krishan during patroling were present at the unmetalled Barahi Road, Vikas Nagar, Bahadurgarh. At that time Ravinder Singh (PW1) son of Sarup Singh met SI/SHO Hari Singh (PW11) there and he got his aforesaid statement (Ex.P1) recorded. It was reduced into writing without any addition or omission and read over word by word to Ravinder Singh (PW1). He admitted the same to be correct and put his signatures in Hindi language which were attested by SI/SHO Hari Singh (PW11). From the perusal of the statement (Ex.P1), it was observed that offences punishable under Sections 302 and 201 IPC were made out. A 'ruqa' (memo.) (Ex.P13) through Bhupinder Singh Constable was accordingly sent to the Police Station for registration of a case (FIR). After registration of case (FIR) its number was asked to be intimated; besides, special reports were asked to be sent to the higher officers. SI/SHO Hari Singh (PW11) along with the police officials and the complainant (PW1) proceeded to the spot on the government vehicle. ASI Surinder Pal, Police Station Linepaar, Bahadurgarh on receipt of the writing registered FIR No.101 dated 12.7.2008 (Ex.P35) under Sections 302 and 201 IPC. Carbon copies of the FIR were prepared and were sent to the learned Ilaqa Magistrate, Deputy Superintendent of Police, Bahadurgarh and Superintendent of Police, Jhajjar as special reports through a special Constable. Copy of the police Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -4- file/FIR along with original writing was sent back to SI/SHO Hari Singh (PW11) at the spot through the Constable who had brought it, for investigation of the case.
Anil Kumar photographer (PW7) was called at the spot by the Investigating Officer. He took photographs Ex.P1 to Ex.P4. FSL team was also called at the spot, which inspected the site. Blood stained earth and hair of the deceased were lifted from the spot and were put in a small tin box and converted into a parcel and taken in possession vide recovery memo Ex.P2. At some distance from the spot, an abandoned rickshaw (Ex.P3) was seen standing, which was locked. A key (Ex.P19) was recovered from the spot and with it the lock of the rickshaw was openend. Inquest proceedings (Ex.P7) were conducted in the case. Site plan on the inquest proceedings was prepared and mark A in the site plan is indicated as the place where the undressed dead body of a person was lying on the 'dol' (ridge); besides, one almond colour pant (Ex.P15), a checked shirt (Ex.P16) and an underwear (Ex.P17), a pair of plastic chappals (Ex.P18) were lying near the dead body at mark-B. The place where the blood spots, hair and one iron key (Ex.P19) were lying is depicted as mark- C. Besides, in para 4 of the inquest report (Ex.P7) against the column relating to the persons identifying the dead body, it is recorded that Chandan (PW10) son of Matharu, resident of village Khajra, District Jhansi (Madhya Pradesh), now tenant at Barahi Road, Bahadurgarh and Siri Lal son of Dila resident of village Karhera, District Sipri Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -5- (Madhya Pradesh), now tenant at Barahi Road Bahadurgarh. In column 5 of the inquest report (Ex.P7)the identity of the dead body is mentioned to be that of Gulab son of Matharu i.e. brother of Chandan (PW10). After narrating brief facts of the case, they were interrogated. Besides, further investigations were carried out and whatever was stated by Chandan (PW10) and Siri Lal son of Dila Ram regarding the inquest was recorded in terms of Section 175 of the Code of Criminal Procedure ("CrPC" - for short). It was observed in the inquest proceedings that the death of Gulab (deceased) had occurred due to sustaining/causing injuries as had been stated. However, even then it was necessary to know the real cause of death. Therefore, the dead body was being sent to the concerned quarters for getting its post-mortem examination conducted. The dead body was sent under an escort of EHC Mohan and Constable Bhupinder Singh. The result of the post-mortem examination was asked to be intimated.
The statement of Chandan (PW10) recorded under Section 175 CrPC is to the effect that he was residing at Barahi Road, Bahadurgarh and he plied a rickshaw. He and his younger brother Gulab (deceased) had come to Bahadurgarh about three months earlier and were living in a rented house at Barahi Road near Triveni School owned by Sanjay. The younger brother of Chandan (PW10) i.e. Gulab (deceased) also plied a rickshaw. It is stated by Chandan (PW10) that on 10.7.2008 at about 2.00 p.m. his younger brother Gulab (deceased) had come to the room to take his meals. After Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -6- taking his meals, he took out his rickshaw and went out. Till 12.7.2008 the brother of Chandan (PW10) had not returned back to his room. Chandan (PW10) accompanied by his brother-in-law (sister's husband) namely Siri Lal who was living at Bahadurgarh roamed about in Bahadurgarh itself searching for his brother Gulab (deceased). They came to know that a dead body of a young man was lying in a field near Linepaar, Bahadurgarh in Kamal Vihar Colony, Bahadurgarh. On receipt of this information, Chandan (PW10) and his brother-in-law Siri Lal reached at the spot and saw that the dead body was that of his younger brother Gulab. He identified the dead body of his brother Gulab; besides, he got his statement recorded, which he heard and accepted it as correct. It is stated that some unknown person had caused injuries to his brother on account of which he died. Statement under Section 175 CrPC of Siri Lal was also recorded on 12.7.2008 itself.
SI/SHO Hira Singh (PW11) conducted the investigation in the case. An application was written by SI/SHO Hari Singh (PW11) for conducting the post-mortem examination on the dead body which was handed over to EHC Manmohan who took the dead body to General Hospital, Bahadurgarh for post-mortem examination. The post-mortem examination, however, was not conducted on that day by the doctor as the dead body was in a decomposed condition. SI/SHO Hari Singh (PW11) recorded the statements of witnesses under Section 161 CrPC and also prepared the site plan (Ex.P14) at Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -7- the spot.
After completing the investigation, police report (challan) was filed in the Court of learned Sub-Divisional Judicial Magistrate, Bahadurgarh who from the perusal of the case file found a prima facie case punishable under Section 302/201 IPC to be made out. It was observed that since the offence under Section 302/201 IPC was exclusively triable by the Court of Session, the case was committed to the said Court for trial on 19.11.2008. The accused was remanded to judicial custody during and until the conclusion of the present case; besides, he was asked to be produced before the Court concerned at 10.00 a.m. on 3.12.2008.
The learned Additional Sessions Judge, Jhajjar to whom the case was assigned vide order dated 12.2.2009 found a prima facie case for the commission of offences punishable under Sections 148, 302 read with Section 149 and Section 404 IPC. The appellants were chargesheeted accordingly to which they pleaded not guilty and claimed trial. It was alleged in the charges that the appellants on the intervening night of 10/11.7.2008 in the area of Bahadurgarh falling within the jurisdiction of Police Station Linepaar, Bahadurgarh along with their co-accused Ram Avtar (who was declared a proclaimed offender) formed an unlawful assembly and in prosecution of the common object of such assembly to commit the murder of Gulab son of Muthra committed the offence of rioting with deadly weapons i.e. broken liquor bottles and thereby they committed an offence Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -8- punishable under Section 148 IPC. Secondly, on the same date, time and place the appellants along with their co-accused Ram Avtar (who was declared proclaimed offender) being members of an unlawful assembly and in prosecution of the common object of such assembly did commit murder by intentionally and knowingly causing the death of Gulab son of Muthra and thereby committed an offence punishable under Section 302 read with Section 149 IPC. Thirdly, after committing the murder of Gulab with the intention to cause the evidence of murder to disappear and screening themselves from legal punishment had hidden the dead body of Gulab under the bushes and thereby they committed an offence punishable under Section 201 IPC and fourthly on 26.8.2008 in the area of Vikas Nagar, Bahadurgarh, Ompal (appellant No.1) dishonestly misappropriated one handkerchief possessed by Gulab (deceased) at the time of his death and converted the said property to his own use and thereby committed an offence punishable under Section 404 IPC. Fifthly, in the area of Vikas Nagar, Bahadurgarh, Suba Lal (appellant No.2) dishonestly misappropriated one wrist watch possessed by Gulab (deceased) at the time of his death and converted the said property for his own use and thereby committed an offence punishable under Section 404 IPC. Sixthly, on 26.8.2008 in the area of Vikas Nagar, Bahadurgarh, Prem Pal (appellant No.5) dishonestly misappropriated one diary possessed by Gulab (deceased) at the time of his death and converted the same for his own use and thereby committed an offence Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -9- punishable under Section 404 IPC. Seventhly, Shyam Bihari (appellant No.4) on 26.08.2008 in the area of Vikas Nagar, Bahadurgarh dishonestly misappropriated one ring possessed by Gulab (deceased) at the time of his death and converted the said property for his own use and thereby he committed an offence punishable under Section 404 IPC. Eightly, Naresh (appellant No.3) on 26.8.2008 in the area of Vikas Nagar, Bahadurgarh dishonestly misappropriated one purse possessed by Gulab (deceased) at the time of his death and converted the same for his use and thereby committed an offence punishable under Section 404 IPC.
The prosecution in order to establish its case examined as many as 15 witnesses; besides, tendered documents in evidence. The statements of the appellants in terms of Section 313 CrPC were recorded in which the substance of evidence appearing against them was put to them. All the appellants in their defence took the stand that they were innocent and had been falsely implicated in the case. The learned trial Court after considering the evidence and material on record convicted the appellants for the offences punishable under Sections 148, 302 read with Sections 149 and Section 404 IPC. However, they were acquitted of the offence under Section 201 IPC. All the appellants have been sentenced to imprisonment for life; besides, pay a fine of Rs.20,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for two years each for the offence under Section 302 IPC; besides, they have been sentenced Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -10- to undergo rigorous imprisonment for two years each for the offence under Section 148 IPC and imprisonment for two years and fine of Rs.5000/- each and in default of payment of fine, to undergo further rigorous imprisonment for six months each for the offence under Section 404 IPC. All the sentences were ordered to run concurrently. Aggrieved against the same, the appellants have filed the present appeal.
Learned counsel appearing for the appellants has contended that the judgment and order passed by the learned trial Court is absolutely erroneous and in fact there is no evidence or material on record to show that the appellants were in any manner liable for the death of Gulab Singh. It is submitted that the learned trial Court has passed the conviction of the appellants only on the basis of disclosure statements made by the accused which are wholly untrustworthy of reliance inasmuch as these were not recorded in the presence of any independent witness. Besides, the recoveries made in pursuance of the said disclosure statements are not such recoveries which would show that the appellants were in any manner responsible for the murder of Gulab. Moreover, the recoveries were made from one room where all five appellants were residing as tenants. It is submitted that there was no motive for the appellants to commit the murder of Gulab. There is no eye-witness account to the occurrence. The evidence of last seen as deposed by Har Dayal (PW5) in his statement (Ex.P9) made on 4.8.2008 was not supported by him while Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -11- appearing as PW5 and he was declared hostile. Umed Singh Ex- Subedar (PW6) who made a statement (Ex.P10) before Nathu Ram SI/SHO Police Station Linepaar, Bahadurgarh (PW15) regarding the appellants making an alleged extra judicial confession did not support the prosecution case.
In response, learned counsel for the State has submitted that the prosecution has established and proved its case against the appellant in all respects. There is no infirmity in the order passed by the learned trial Court. The contentions as raised by the learned counsel for the appellant, it is submitted, are not tenable. Therefore, it is submitted that the appeal of the appellants 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. It may be noticed that there is no eye-witness to the occurrence. Ravinder Singh (PW1) is the complainant and he only stated about the undressed dead body being seen by him on 12.7.2008 while he was grazing his cattle near Kamal Vihar and he reported the matter to Hari Singh SI/SHO (PW11). There were marks of injuries on the dead body. Har Dayal (PW5) who is a witness to the last seen of Gulab Singh (deceased) with the appellants completely resiled from his statement (Ex.P9) made by him before the Police under Section 161 CrPC and he stated that he had no knowledge about the present case. In cross- Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -12- examination it is stated by Har Dayal (PW5) that Gulab Singh (deceased) had illicit relations with the wife of Ram Avtar (who has been declared a proclaimed offender). Umed Singh (PW6) before whom an extra judicial confession is stated to have been made by the appellants also resiled from his statement (Ex.P10) made before the police. The accused (appellants) are said to have made an extra- judicial confession before Umed Singh (PW6). Statement (Ex.P10) was made by Umed Singh, Ex-Subedar (PW6) before Nathu Ram SI/SHO, Police Station Linepaar, Bahadurgarh (PW15) on 25.8.2008 under Section 161 CrPC. It is stated by Umed Singh, Ex.Subedar (PW6) in his statement under Section 161 CrPC that he was a pensioner from the Military and was living at Vikas Nagar, Bahadurgarh after constructing his own house. The appellants lived in his house on rent and they all plied rickshaws. On 25.8.2008 it is stated that the appellants came to his house together and Sube Lal (appellant No.2) asked him that all of them were associated with Ram Avtar (since declared a proclaimed offender) and had murdered Gulab, a rickshaw puller who was resident of Jhansi. They had committed murder on the asking of Ram Avtar on the night of 11.7.2008. Thereafter, they threw his undressed dead body in the fields. Police was searching for them in connection with the murder of Gulab and they asked him to produce them before the police as he knew the police officals so that they do not beat them. The remaining persons, it is alleged, supported the suggestion of Suba Lal (appellant Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -13- No.2). Therefore, all the appellants were associated with Ram Avtar and had murdered Gulab on the intervening night of 10/11.7.2008 while they were in an inebriated condition. The appellants admitted the murder of Gulab in his presence and he produced all the four persons before Nathu Ram SI/SHO (PW15) Police Station Linepaar, Bahadurgarh. However, Umed Singh while appearing in the witness- box completely resiled from his statement and stated that he did not know about this case and no one disclosed regarding any incident to him. He was declared hostile. He heard his statement (Ex.PJ) made before the police, but stated that he never made any statement before the police. He denied the suggestion that he was deposing falsely. The other witnesses in the case are Ramesh Kumar, Patwari (PW-14) who prepared a scaled site plan (Ex.P8) on the demarcation of Ravinder Singh (PW1) along with Nathu Ram SHO, Police Lines, Bahadurgarh (PW15). In cross-examination it is stated that he did not mention the name of the owner of the fields in his scaled site plan. Besides, he could not tell the owner of the fields reflected in site plan (Ex.P8). Constable Vikas Kumar (PW8) tendered in evidence his affidavit (Ex.P11). It is stated that on 19.8.2008 Jai Karan MHC from the store-room of the Police Station took out the case property of the case in an intact condition i.e. one packet of blood-stained soil duly sealed with seal of monogram HS, one packet containing hair duly sealed with the seal of monogram HS along with sample of seal and handed over to him (PW-8) for depositing the Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -14- same with FSL, Madhuban for analysis. Vikas Kumar, Constable (PW8) deposited all the packets with FSL, Madhuban Karnal on the same day i.e. 19.08.2008 and receipt was handed over to Jai Karan MHC. So long as the packets of the case property remained in his (PW-8) possession, neither he nor anybody else tampered with them. In cross examination it is stated that he could not tell how many seals were affixed over the parcles. Sita Ram, Constable (PW9) submitted a special report of the case on 12.7.2008 which he handed over to the learned Ilaqa Magistrate without any loss of time. In the cross- examination it is stated that he received the special report at about 2.30 p.m. and he delivered the same to the Ilaqa Magistrate in the Court. Chandan (PW10) stated that Gulab Singh (deceased) was his brother. He had been murdered but he did not know how he was murdered. He identified the dead body of his brother and after post- mortem examination, he took the same vide memo Ex.P12. The memo bears his left thumb impression and he identified in Court the clothes and items i.e. Watch, silver ring, a purse etc. to be that of his brother. He was not cross-examined. Siri Lal was given up being unnecessary. The FSL report (Ex.P42 and Ex.P43) were tendered in evidence. SI Hira Singh (PW11) carried out investigations at the spot. In cross-examination it is stated that he had reached at the spot at about 2.00 p.m. No person from the public was present except Ravinder (PW1). He spent two hours at the spot in completing the investigation. When he reached at the spot, 7-8 persons had gathered Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -15- at the spot. He inquired from them about the dead body, but they were not having any knowledge about the occurrence. The dead body was in an undressed condition. The clothes and chappal etc. were lying near the feet of the dead body. After seeing the dead body, the name of the person could not be recognized from the nearby articles. It is stated that on recovery of rickshaw and after unlocking the lock of rickshaw, he (PW11) inquired about the dead body from the owner of the rickshaw and then on his identification he came to know the name and identity of the accused (sic.deceased). There was no mark/identification proof on the rickshaw regarding its owner. It is voluntarily stated that in Bahadurgarh City there were three famous owners who used to give rickshaws to the rickshaw pullers on payment basis. He did not know the name of the owner of the rickshaw. Kartar Singh SI, Police Station Bahadurgarh (PW12) stated that on 12.7.2008 he was posted as Investigating Officer at Police Station Linepaar, Bahadurgarh. On that day he joined the investigation along with Hari Singh SI/SHO (PW11) and reached at the place of occurrence where a dead body was lying. Blood stained earth, clothes of deceased, key and strained hair were lifted from there. The blood-stained earth and strained hair were put in a small tin box and converted into parcel, which were taken in possession vide recovery memo Ex.P2. On the same day, a rickshaw which was found abandoned in Vikar Nagar, Bahadurgar was also taken in possession vide recovery memo Ex.P3. On 26.8.2008 he (PW-12) Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -16- again joined the investigation in this case along with Nathu Ram SI/SHO (PW15). On that day all the accused person who were in Court were interrogated separately. First of all Om Pal (appellant No.1) was interrogated and he suffered a disclosure statement (Ex.P20) that he along with his co-accused committed the murder of Gulab Singh and the dead body of Gulab Singh was thrown in the wild grass. They also took out the money from the pocket of the deceased and he got Rs.250/- as his share. The handkerchief in which the above amount was wrapped had been concealed by him in Vikas Nagar, Bahadurgarh in a rented house which was in his exclusive knowledge. Thereafter Suba Lal (appellant No.2) made a disclosure statement (Ex.P21) that he could get recovered a wrist watch of Gulab Singh (deceased) which was taken by him as his share. It had been concealed by him in a box in his rented house at Vikas Nagar, Bahadurgarh. Naresh (appellant No.3) in his disclosure statement (Ex.P22) disclosed that a purse came in his share which he had concealed under the heap of bricks near his rented house at Vikas Nagar, Bahadurgarh. Shyam Bihari (appellant No.4) in his disclosure statement (Ex.P23) disclosed that he got a ring as his share, which was concealed by him in a room of his rented house at Vikas Nagar, Bahadurgarh. Lastly, Prempal (appellant No.5) made a disclosure statement (Ex.P24) that he got a diary of the victim as his share, which was kept by him in his rented house in the upper portion of his room. After recording the disclosure statements of aforesaid the Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -17- accused, they were taken to the place of recovery i.e. a rented house at Vikas Nagar, Bahadurgarh one by one. Ompal (appellant No.1) got recovered a handkerchief (Ex.P25/A) on which name of Gulab Singh was written. It was converted into a parcel and sealed with seal of KS and taken in possession vide recovery memo Ex.P25. Suba Lal (appellant No.2) got recovered a wrist watch (Ex.P26/A) which was converted into a parcel and sealed with seal KS and taken in possession vide recovery memo Ex. P26. Naresh (appellant No.3) got recovered a purse (Ex.P27/A) which was converted into a parcel and sealed with seal of KS and taken in possession vide recovery memo Ex.P27. Shyam Bihari (appellant No.4) got recovered a silver ring (Ex.P28/A) which was converted into a parcel and sealed with seal of KS and taken in possession vide recovery memo Ex.P28. Lastly Prempal (appellant No.5) got recovered a diary (Ex.P29/A) on which a calendar of the year of 2007 was printed. The diary was converted into a parcel sealed with seal of KS and taken in possession vide recovery memo Ex.P29. All the recovery memos were attested by Kartar Singh (PW12) and HC Baljit Singh. Thereafter, all the appellants led the police party to the place of occurrence separately one by one. Ompal (appellant No.1) got demarcated the place of occurrence. In this regard, demarction memo (Ex.P30) was reduced into writing. Suba Lal (appellant No.2) got demarcated the place of occurrence and demarcation memo (Ex.P31) was reduced into writing. Naresh (appellant No.3) got demarcated Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -18- the place of occurrence and demarcation memo (Ex.P32) was reduced into writing. Shyam Bihari (appellant No.4) got demarcated the place of occurrence and demarcation memo (Ex.P33) was also reduced into writing. Prempal (appellant No.5) got demarcated the place of occurrence and demarcation memo (Ex.P34) was also reduced into writing. All the demarcation memos were attested by Kartar Singh SI (PW12). In cross-examination it is stated that recovery of items were effected on the same day from the accused i.e. Naresh, Shyam Bihari and Om Pal but he could not say as to whether any public witness was joined at the time of recovery by the police party. The recovered purse from Naresh (appellant No.5) was having a diary (Ex.P29/A) which was blank and there were no currency notes and the other items in the purse. It is accepted as correct that no public witness was involved at the time of preparing of demarcation memo by the police. ASI Surender Pal (PW13) on 12.07.2008 was posted as I.O. at Police Station Linepar, Bahadurgarh. On that day he received a writing (Ex.P13) from SI Hari Singh (PW11), on which he registered FIR (Ex.P35), which bears his signatures. Endorsement (Ex.P35/A) was made on the memo. Thereafter, he sent special report of the case to the Ilaqa Magistrate and higher police officials through Constable Sita Ram. Jai Karan HC (PW14) tendered in evidence his affidavit (Ex.P36). It is stated that on 12.7.2008 he was posted as Moharrir Head Constable (Incharge of Store Room) at Police Station Linepaar, Bahadurgarh. On that SI/SHO Hari Singh (PW11) had deposited one Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -19- packet containing blood stained soil/earth duly sealed with seal of monogram of HS and one packet containing hair in the store room. The above packets were sent to Forensic Science Laboratory, Madhuban for analysis through Constable Vikas (PW8) vide RC No.311 dated 19.08.2008. So long as the packets remained in his possession, neither he nor anyone else tampered with them. SI/SHO Nathu Ram (PW15) stated that on 26.8.2008 he was posted as SI/SHO Police Station Linepaar, Bahadurgarh. On that day, investigation of the case was conducted by him. The appellants were interrogated by him separately one by one. Kartar Singh ASI (PW12) and HC Baljit Singh were also joined by him in the investigation. He has made a mention of the disclosure statement made by all the accused and that a handkerchief containing Rs.250/- which was taken from the pocket of the deceased was recovered from Ompal (appellant No.1) which was taken by him as his share. The amount was spent by him and the handkerchief had been concealed by him in a bag in his rented house at Vikas Nagar, Bahadurgarh. It was recovered on the basis of his disclosure statedment (Ex.P20). Suba Lal (appellant No.2) on the basis of his disclosure statement (Ex.P21) got recovered a wrist watch. Naresh (appellant No.3) on the basis of his disclosure statement (Ex.P22) got recovered a purse. Shyam Bihari (appellant No.4) on the basis of his disclousre statement (Ex.P23) got recovered a silver ring and Prempal (appellant No.5) on the basis of his disclosure statement (Ex.P24) got recovered a diary. Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -20- Recovery site plan pertaining to accused Om Pal (Ex.P37), Suba Lal (Ex.P38), Shyam Bihari (Ex.P39), Prem Pal (Ex.P40) and Naresh (Ex.P41) were prepared by him. Besides, the place of occurrence was got demarcated. In cross-examination it is stated that except the above disclosure statements, no other disclosure statement was recorded by him. He joined as SHO Police Station Linepaar, Bahadurgarh on 27.7.2008. He arrested Ompal (appellant No.1), Shyam Bihari (appellant No.4), Naresh (appellant No.3), Sube Lal (appellant No.2) and Prempal (appellant No.5) on 26.7.2008. They did not join public witness at the time of recording the disclosure statement of the accused persons, whereas public witnesses were present and other officers were also present at the Police Station at the time of disclosure statement of the accused.
The medical evidence has been brought on record by way of deposition of Dr. Mohinder (PW3) who tendered in his evidence his duly sworn affidavit (Ex.P5). It is stated that he conducted post-mortem examination of Gulab aged 26/27 years on 13.7.2008 while he was posted at FM (Forensic Medicine) Department, PGIMS Rohtak as Demonstrator. The body was brought by Manmohan Singh and referred by SMO, Bahadurgarh. He received an undressed dead body of a male individual (wrapped in plastic pally) of length 178 cms. The body and pally was smudged with soil particles. The body was emitting four smell. The eggs of flies were present at places on the body. The maggots of size 0.4 cm Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -21- to 0.6 cm were crawling all over the body, scalp hair were black 5 cm to 7 cm. Long easily pulled with mild traction. Facial features were bloated and deformed and partially identifiable. Eyeball softened and putrefied and protruded out. Tongue 1cm. Protruded out of lips. Epidermis pealed off all over the body. Hands and feet degloved. Chest tense, abdomen distended. Axillary and body hair peeled off. Pubic hair 2 cm to 3 cm long black. Penis and scrotum distended. Rectum protruded out. Moustaches and beard 1 cm and black. There were three spindle shaped incised wound of dimension (A) 2.5 x 1.5 x 2 cm (B) 2.5 x 2 x 2 cm cm (C) 3 x 1.5 x 2 cm. Over upper left side of neck medial to right body of mandible. (2) An incised wound horizontally placed over ant. Aspect of neck 6 cm from sternal angle and 11 cm from centre of chin, more so on right side of neck and tail towards left side of neck. All the tissues underlying the injuries were echymosed and main vessels were cut. (3) Small superficial skin-deep incised wound present over middle of neck. No other injury found on deep dissection and PME. Skull healthy, brain partially liquefied, ribs and cartilages healthy, pleura, larynx and trachea, right and left lung were decomposed; pericardium heart softened large vessels were empty; peritoneum, mouth, pharynx and Oesophagus were decomposed, Liver, spleen, kidneys were softened. Bladder empty. Organs of generation decomposed. Stomach contains mucoid material and shows P.M. Bullaes. Small intestine contain digested food and gas. Large intestine contain gas and faecal Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -22- matter. In the opinion of the doctor, cause of death was the injuries described and their complications. All the injuries were ante-mortem in nature and were sufficient to cause death in the due course of nature. In terms of the post-mortem report (Ex.P6), the time that elapsed between death and post-mortem examination is mentioned as three days. In cross-examination it is stated by Dr. Mohinder (PW1) that probable duration between injury and death was 10 to 15 minutes and the probable duration between death and postmortem was about three days. The Investigating Officer did not produce any kind of weapon to seek opinion regarding the injuries described on the dead body of Gulab. In terms of the FSL report (Ex.P42), blood was detected on Ex.1 (blood-stained earth) and Ex.2 (hair). The result of the serological analysis of blood was attached. The origin of blood- stained earth was mentioned as human whereas the material hair had disintegrated. In FSL report (Ex.P43), the hair in Ex.2 (hair recovered from the spot) was identified to be human in origin.
The evidence and material on record that has been produced by the prosecution and a reference to which has been made indeed does not show that the prosecution has established its case against the appellants. The following circumstances are discernible:-
1. The case is based primarily on the disclosure statements of the appellants and recoveries in respect of the articles of the deceased Gulab Singh made in pursuance of the disclosure statements. In Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -23- respect of the disclosure statements that were recorded and the recoveries that were effected, no independent witness was associated. Besides, the recovered articles are not such on the basis of which the appellants would commit the murder of Gulab Singh. The recovered articles comprised of a handkerchief (ExP25/A) from Ompal (appellant No.1), a wrist watch (Ex.P26/A) from Suba Lal (appellant No.2), a purse (Ex.P27/A) from Naresh (appellant No.3), a silver ring (Ex.P28/A) from Shyam Bihari (appellant No.4) and a diary (Ex.P29/A) from Prempal (appellant No.5). In fact it may be noticed in the disclosure statement (Ex.P23) of Shyam Bihari (appellant No.4) it is stated that he had taken out a gold ring from the finger of Gulab Singh and kept that ring concealed in the corners of the Southern and Eastern walls of his rented house at Vikas Nagar, Bahadurgarh and he could get the same recovered on pointing out the room. However, Shyam Bihari (appellant No.4) got recovered a silver ring (Ex.P28/A) and not a gold ring in respect of which the disclosure statement (Ex.P23) was recorded. Besides, all the recoveries have been made from the house of the appellants which was taken on rent from Umed Singh Ex-Subedar (PW6). However, Umed Singh, Ex-Subedar was not associated in the recoveries.
2. There is no motive for the appellants to commit the murder of Gulab Singh. The motive of stealing the articles of a co-rickshaw puller is very weak one. Besides, Har Dayal (PW5) in his cross- Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -24-
examination has stated that Gulab Singh (deceased) had illicit relations with the wife of Ram Avtar. Ram Avtar as already noticed is a proclaimed offender. Therefore, in the absence of motive on the part of the appellants, it would be unsafe to record a finding of their conviction and sentence.
3. There is no eye-witness to the incident and only the dead body of Gulab Singh deceased was found by Ravinder complainant (PW1) who reported the matter to Hari Singh SI/SHO (PW11), Har Dayal (PW5) who is stated to have last seen the appellants with the deceased did not support the prosecution case and turned hostile.
4. Umed Singh Ex-Subedar (PW6) who is the owner of the house at Vikas Nagar, Bahadurgarh where the appellants were staying on rent in his statement under Section 161 CrPC stated that Suba Lal (appellant No.2) had made an extra-judicial confession before him which was endorsed by the others. However, in his deposition in Court, he turned hostile and did not support the prosecution case.
5. There is no incriminating circumstances established to link the accused with the commission of murder of Gulab Singh. In the inquest proceedings (Ex.P7) it is recorded by Hari Singh SI/SHO (PW12) that during recording of inquest proceedings Chandan (PW10) brother of Gulab Singh came present at the spot and he identified the dead body of the unknown person being that of Gulab Singh his brother. However, Hari Singh (PW11) while appearing in the Court stated in his cross-examination that on Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -25- recovery of rickshaw and after unlocking the lock of rickshaw, he inquired about the dead body from the owner of the rickshaw and then on his identification, he came to know the name and identity of the accused (sic) of the dead body.
6. Dr. Mohinder (PW3) in his cross-examination has stated that the time between the death and post-mortem was about three days. This in fact is also recorded in the post-mortem report (Ex.P6). Therefore, the dead body was lying in the fields for about two days before the matter was reported to the Police on 12.07.2008 as the postmortem was conducted on 13.07.2008. It is not shown as to at what point of time the murder of Gulab Singh was committed and there is nothing to link the appellants with the murder of Gulab Singh two days earlier to the recovery of the dead body on 12.7.2008.
7. The injuries on the dead body have been mentioned by Dr. Mohinder (PW3) in his affidavit (Ex.P5) to be incised wounds. This would mean that these were caused with a sharp edged weapon. However, no weapon of any kind has been recovered from any of the appellants. Non recovery of the weapon of offence in the facts and circumstances goes to show the hollowness of the prosecution case.
In the facts and circumstances, we are satisfied that the learned trial Court has passed the conviction and sentence of the appellants primarily on the basis of their disclosure statements Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh CRA No. 612-DB of 2010 -26- and the recoveries that were effected. In the circumstances, we feel it would be wholly unsafe to sustain the conviction and sentence of the appellants only on the basis of disclosure statements and it would be unsafe to convict and sentence them on the said basis. Rather the appellant would be entitled to benefit of doubt.
Accordingly, the appeal is allowed. The judgment of conviction dated 26.4.2010 and order of sentence dated 27.4.2020 passed by the learned Additional Sessions Judge, Jhajjar are set aside and the appellants are acquitted of the offences for which they were charged. They be set at liberty forthwith, if not wanted in any other case.
(S.S. SARON) JUDGE (M. JEYAPAUL) JUDGE January 18, 2012 amit Amit Kaundal 2014.01.20 17:30 I attest to the accuracy and integrity of this document Chandigarh