Punjab-Haryana High Court
Devender Kumar Sharma And Another vs State Of Haryana on 6 September, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.D-424-DB of 2007
Date of Decision: September 06, 2012
Devender Kumar Sharma and another
...Appellants
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.Gorakh Nath, Advocate
for the appellants.
Mr.R.K.S.Brar, Addl. Advocate General, Haryana
for the respondent-State.
INDERJIT SINGH, J.
The present appeal has been filed by the appellants against the judgment/order dated 10.03.2007/12.03.2007, passed by the Addl. Sessions Judge, Faridabad, whereby they were convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of ` 1000/- each under Section 120 B IPC. The appellants were also convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of ` 2000/- each under Section 302 IPC. The appellants were further convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 1000/- each under Section 364 IPC and in default of payments of aforesaid amounts of fine, to further undergo rigorous imprisonment Crl. Appeal No.D-424-DB of 2007 -2- for a period of six months. All the sentences were ordered to run concurrently.
The brief facts of the prosecution story are that the complainant-Vishesh Sharma was plying taxis. On 10.08.2002, at about 3.15 P.M. one person came on the taxi stand and demanded one Tata Sumo for going to Badaun, U.P. The complainant asked him about his address, then he took the complainant to house No.468, Sector-29 and told his name as Devender Sharma. On reaching the house, he called a young boy named Nishant and told him that he can become late but he will return definitely. Then complainant sent Kamal Singh Driver along with Tata Sumo bearing No.HR-29J-5735 with Devender Sharma after verification of his address. When Driver along with his vehicle did not return back, then he (complainant) went to house No.468 and on enquiry from Nishant, he came to know that Devender Sharma has studied with his father and gave his address of U.P. The complainant reported the matter to the police and DDR Exhibit PA/2 was registered on 14.08.2002. When the complainant could not trace Kamal Singh Driver along with the Tata Sumo, then he gave application to the Incharge, Police Station, Sector-28, Faridabad, on the basis of which FIR was registered on 11.09.2002.
On 10.08.2004, Ramphool SI was posted in CIA Staff, Palwal. On the said date, Devender Sharma-accused was in custody in case FIR No.1274 of 2004 of P.S. City, Palwal. He made disclosure statement, in which he admitted his involvement regarding murder in the present case. On 19.08.2004, accused Girish Chand Crl. Appeal No.D-424-DB of 2007 -3- Gupta and Gian Singh, who were in custody in case FIR No.377 of 2002 in P.S. City Palwal, also joined investigation. The disclosure statement of Gian Singh Ex.PG and Girish Ex.PH were recorded. On 23.08.2004, Gian Singh changed his statement and made another disclosure statement Ex.PJ and got recovered shoes of the deceased in pursuance of his disclosure statement. He also gave demarcation of the place of murder vide identification memo Ex.PC. Shoes were identified by Satish Kumar, brother of the deceased. On 24.08.2004, Girish Chand Gupta also backed out from his disclosure statement and he again suffered disclosure statement on 25.08.2004 and stated that the Tata Sumo which he had taken from Devender Sharma etc. had been given to Sushil Kumar son of Sh.Sat Parkash, for being sold but neither the vehicle was returned nor the sale consideration was paid.
Accused Devender Sharma on interrogation demarcated the place where the dead body was thrown and in pursuance of his disclosure statement, got recovered the pant and shirt of the deceased, which were taken into police possession vide Ex.PD, which was identified by Satish Kumar, brother of the deceased. Rough site plan was prepared.
After necessary investigation, challan was presented against the accused-appellants.
Finding prima facie case, the appellants were charge- sheeted under Sections 120B, 364, 302 and 411 IPC, to which the appellants pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Crl. Appeal No.D-424-DB of 2007 -4- Vijay Singh, ASI (Retd.), who mainly deposed regarding recording of formal FIR after receipt of ruqa. PW-2 Narender Kumar, SI/SHO, who mainly deposed that complainant Vishesh Sharma produced before him a written complaint on 11.09.2002 on which he made endorsement and sent the same to the police station for registration of the case. He also recorded the statement of Sher Singh. PW-3 Ram Niwas, Inspector simply prepared the report under Section 173 Cr.P.C. PW-4 Inder Sain, Assistant Ahlmad, mainly brought the record of State Vs. Devender arising out of FIR No.740 dated 11.09.2002 under Section 364 IPC, which was decided on 17.10.2004 after declaring the accused Devender Sharma as a proclaimed offender. PW-5 Satish Kumar is the brother of the accused and deposed that his brother was employed on Tata Sumo belonging to Vishesh Sharma-complainant. He stated that on 10.08.2002 Dharmender Sharma had taken the said car as a taxi with his brother as Driver. On 23.08.2004, he had accompanied with HC Ram Babu and complainant Vishesh Sharma and had gone to Badaun. Accused Devender was with them and he got recovered clothes of his brother, which were identified and taken into police possession vide memo Ex.PC, which bears his signatures. He also deposed that the dead body of his brother was not recovered nor the place where his brother had been murdered was identified. Nothing else from anywhere else was recovered in his presence. This witness has been declared as hostile and has not supported the prosecution version. PW-6 Vishesh Sharma-complainant deposed as per prosecution version. He also deposed that the accused Crl. Appeal No.D-424-DB of 2007 -5- Devender Sharma, present in the Court, had come on the taxi stand and demanded taxi for going to Badaun, U.P. PW-7 Sher Singh, mainly deposed that in the year 2002, one Devender Sharma had come in rickshaw on the taxi stand. He finalized the deal of a taxi with Vishesh Sharma. He was to go somewhere in U.P. He then took the said taxi with him. Thereafter, the said taxi and driver did not return. In cross-examination, he stated that he had seen Devender Sharma from back side and therefore, he cannot identify him at this stage. PW-8 Ram Babu, Head Constable mainly deposed that accused Girish Kumar and Gian Singh who were in custody in another case under Section 364 IPC were interrogated and he deposed regarding the disclosure statements and recovery of pair of shoes of the deceased by Gian Singh. PW-9 Udham Singh, EHC, mainly deposed regarding the disclosure statement by Devender Kumar and recovery of pant, shirt and wrist watch of the deceased in pursuance of the disclosure statement. PW-10 Subhash Chand mainly deposed regarding DD No.12 dated 14.08.2002. PW-11 Ramphool SI, deposed regarding investigation of the case. PW-12 Gajender Singh, Reader mainly deposed that on 30.08.2004 an application was made for conducting test identification of Devender Singh, who refused to participate in the said identification parade and his statement was recorded and a separate order was passed.
At the close of the evidence, the accused-appellants were examined under Section 313 Cr.P.C. and the accused denied the correctness of the evidence and pleaded themselves as innocent.
On the basis of the evidence produced by the Crl. Appeal No.D-424-DB of 2007 -6- prosecution, accused-appellants Devender Kumar Sharma and Gian Singh were convicted and sentenced as stated above.
We have heard the learned counsel for the parties and have gone through the evidence on record carefully.
At the time of argument, learned counsel for the appellants contended that in the present case the prosecution has failed to prove guilt of the accused-appellants. No dead body was recovered nor the car was recovered in the present case. There is no eye witness to the occurrence nor there is any evidence on record to show the death of Kamal Singh. Therefore, he argued that prosecution has failed to prove the murder of the deceased Kamal Singh, much less by the accused-appellants. He next contended that only evidence against the appellant-Gian Singh is recovery of shoes as per prosecution story, which are stated to be identified by brother of the deceased PW-5 Satish Kumar but in chief examination, this witness has nowhere stated regarding the disclosure made by Gian Singh and identification of the shoes of the deceased. In cross- examination, he stated that Gian Singh was never taken by the police with them anywhere. Gian Singh was also not interrogated by the police. Learned counsel for the appellants next contended that as regarding clothes also, in cross-examination PW-5 Satish Kumar stated that clothes were recovered some 15 days after the disappearance of his brother and Devender Sharma was not present at that time. Therefore, he argued that only evidence on which prosecution is relying is not supported by the brother of the deceased. In cross-examination he stated that all these articles were Crl. Appeal No.D-424-DB of 2007 -7- got recovered from the bushes in the area of Badaun after 15-20 days of the disappearance of his brother. Learned counsel for the appellants further contended that no adverse inference can be drawn against accused-Devender Sharma regarding refusal of identification test parade by him in the Court as he was justified for making the statement. He was arrested in this case on 10.08.2004 and he was taken to various places during the period and the application was made on 30.08.2004 before the Court for conducting identification test and there is nothing on the record that during this period he was not shown to the witnesses or he kept in muffled face. Therefore, learned counsel for the appellants contended that in the present case the chain of circumstances is not complete and there are missing links and there is no evidence on record to connect the accused- appellants with the crime and therefore, the appellants should be acquitted.
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 PWs and also from the recovery of shoes and clothes, which were got recovered by the accused-appellants as per their disclosure statements. He also argued that adverse inference is to be drawn against Devender Kumar Sharma as he refused to take part in the identification parade.
We have gone through the evidence on record minutely and carefully and we find merits in the contentions of the learned counsel for the appellants.
Crl. Appeal No.D-424-DB of 2007 -8-
The perusal of the evidence on record shows that it is a case of circumstantial evidence and in the case of circumstantial evidence, the chain of circumstances should be complete and if all the circumstances are put together, it should form a complete chain pointing towards guilt of the accused only and none else. In the present case, the dead body of Kamal Singh Driver has not been recovered. The car alleged to be taken by Devender Kumar Sharma- appellant has also not been recovered. There is no other evidence on record to prove even the death of Kamal Singh. The only evidence is regarding recovery of shoes in pursuance of the disclosure statement made by Gian Singh and the pant/shirt i.e. clothes of the deceased by Devender Sharma. In the present case, the appellants have been arrested after two years of the occurrence. Otherwise also, they were in the custody in another criminal case. The disclosure statement of the accused regarding the fact that they have murdered Kamal Singh etc. cannot be taken into consideration being inadmissible evidence. At the most, these statements can be held as a confession before the police, which hit by Section 25 of the Evidence Act and cannot be read into evidence. The only evidence regarding the recoveries also cannot be believed in view of the statement of PW-5 Satish Kumar, who is brother of the deceased, who firstly did not depose anything regarding recovery of shoes as per the disclosure statement of Gian Singh-appellant. Secondly, in cross-examination he stated that Gian Singh was never taken by the police with them anywhere. Gian Singh was not interrogated by the police. When the clothes were recovered some 15 days after the Crl. Appeal No.D-424-DB of 2007 -9- disappearance of his brother, the appellant-Devender Sharma was not present at that time. The shoes and watch were got recovered by the accused-Devender Sharma along with pant and shirt. All these articles were got recovered from the bushes in the area of Badaun after 15-20 days of disappearance of his brother. This statement in cross-examination is contradictory to the prosecution version and from this statement, PW-5 Satish Kumar cannot be relied upon. Otherwise also, he has also not supported the prosecution version and he was got declared hostile by the prosecution. He also made material improvement regarding his presence when Devender Sharma took the taxi as this fact has not been mentioned in the statement under Section 161 Cr.P.C. No independent witness was joined during the recovery of shoes and clothes. Otherwise also, it looks improbable that the accused will keep shoes and clothes of the deceased with them even after more than two years of the occurrence. A reasonable doubt exists regarding the fact that the shoes and pant etc. were firstly recovered from the accused and secondly these articles are of the deceased person.
From the facts of the case and evidence on record, it is clear that Vishesh Sharma-complainant was not knowing to Devender Sharma-appellant earlier to the hiring of taxi. Secondly, he has identified the accused first time in the court. Admittedly, Devender Sharma was arrested on 10.08.2004 when he was in custody in another case and the application for his identification test was filed on 30.08.2004. There is no evidence that during this period the accused-appellant was ever asked to keep muffled face or has Crl. Appeal No.D-424-DB of 2007 -10- not shown to the witnesses. Next we find that in the present case, even Nishant was not examined who told regarding the identity of Devender Sharma and also address of Devender Sharma, which is also a missing link in the present case. Otherwise also, as discussed above, there is no evidence to prove the death of Kamal Singh, much less of murder and there is also no evidence of any type that the appellants committed the murder of Kamal Singh. Recoveries of shoes and clothes cannot be believed. Therefore, chain of circumstances in the present case is incomplete. 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, the appeal is allowed. The impugned judgment of conviction and order of sentence is set aside. The appellants namely Devender Kumar Sharma and Gian Singh, who are in custody, be set at liberty forthwith, if not required in any other case.
(SATISH KUMAR MITTAL) (INDERJIT SINGH)
JUDGE JUDGE
September 06, 2012
Vgulati