Punjab-Haryana High Court
Satish Kumar vs State Of Punjab on 8 July, 2011
Author: Jora Singh
Bench: S.S. Saron, Jora Singh
CRA-D-634-DB of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-D-634-DB of 2008
Date of decision: 08.07.2011
Satish Kumar
........ Appellant
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Sunder Singh, Advocate, Amicus Curiae,
for the appellant.
Mr. S.S. Gill, Additional Advocate General, Punjab.
JORA SINGH, J.
Satish Kumar-appellant, has preferred this appeal to challenge the judgment of conviction and order of sentence dated 14.7.2005, passed by the learned Additional Sessions Judge, Ludhiana, in Sessions Case No. 37 of 20.5.2002, arising out of FIR No. 3 of 2002, registered under Sections 365 of the Indian Penal Code (IPC-for short) at Police Station Basti Jodhewal, Ludhiana.
By the said judgment, he was convicted under Sections 302/201 IPC and sentenced to undergo imprisonment for life and to pay a fine of ` 5000/- and in default of payment of fine to further undergo CRA-D-634-DB of 2008 -2- rigorous imprisonment for a period of six months under Section 302 IPC.
He was further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 2000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months under Sections 201 IPC. Both the sentences were ordered to run concurrently.
Co-accused namely, Ram Lubhaya, was acquitted of the charge levelled against him. Against acquittal no appeal was preferred either by the State or the complainant.
Prosecution story, in brief, is that on 1.1.2002, Hans Raj- complainant lodged a report with the police on the allegation that he is an employee of M/s Modgil Hosiery, Ludhiana. His brother Kuldip Sharma (deceased) was also an employee in the same factory. On 22.12.2001, his brother (Kuldip Sharma) was to visit his village Dehra situated in District Kangra (Himachal Pradesh). A Maruti van taxi bearing registration No. PB-37-0900, from Jodhewal Chowk, Ludhiana, was hired. Satish Kumar @ Tishi-appellant, resident of Phillaur was the driver of Maruti Van and in this van Kuldip Sharma (deceased) had gone to his village Dehra situated in District Kangra (Himachal Pradesh). He was to return back to Ludhiana, on the same day but he failed to return. An effort was made to know the whereabouts of Kuldip Sharma but there was no information from any side. Kuldip Sharma, was kidnapped by Satish Kumar, with an intention to eliminate him. Statement of Hans Raj was recorded by the police party headed by ASI Jagroop Singh, on 1.1.2002 at about 10.25 a.m. CRA-D-634-DB of 2008 -3- On 25.1.2002, Hans Raj-complainant had noticed Satish Kumar-appellant while sitting in a Dhaba on Jalandhar Road. Information in this regard was given to the police. Then the police party headed by SI Balwinder Singh, apprehended Satish Kumar-appellant while sitting in a Dhaba near Jalandhar By-pass. On personal search of the appellant, ` 53/- were recovered and taken into police possession vide memo Ex. PW-7/A, which was attested by the witnesses. The appellant was interrogated and he suffered a disclosure statement that the dead body of Kuldip Sharma had been concealed by him near a 'katcha' path. Then the Sub Divisional Magistrate, Phillaur, was requested to depute some Executive Magistrate, for the recovery of dead body. Amarjit Singh, Naib Tehsildar, Phillaur, was deputed to accompany the police party. In pursuance of the disclosure statement, the appellant got recovered the dead body from the specified place. The dead body was identified to be that of Kuldip Sharma by his brothers namely Hans Raj and Kishori Lal, on the basis of a leather belt. Inquest report was prepared. The dead body was sent to Civil Hospital, Phillaur, for post-mortem examination. On 27.1.2002, again appellant suffered a disclosure statement and in pursuance of the said disclosure statement he got recovered a leather purse with a pocket diary, one photograph, one receipt and one visiting card. Recovered articles were taken into police possession vide memo which was attested by the witnesses.
On 30.1.2002, Dr. Guriqbal Singh, serving as Medical Officer, Department of Forensic Medicine Government Medical College, Amritsar, conducted post-mortem examination on the dead body of CRA-D-634-DB of 2008 -4- Kuldip Sharma. After post-mortem examination the dead body was handed over to the relatives of the deceased for cremation.
On 19.3.2002, co-accused namely Ram Lubhaya was arrested. On 21.3.2002, he (Ram Lubhaya) was interrogated and he suffered a disclosure statement. In pursuance of the said disclosure statement he got recovered a parna from the specified place. Recovered parna was made into a sealed parcel and the same was taken into possession vide memo attested by the witnesses. After completion of investigation, challan was presented in Court.
Accused were charge-sheeted for the offences punishable under Sections 364/302/201 of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, the prosecution examined 15 witnesses.
PW-1 Hans Raj Sharma-complainant, has reiterated his stand before the police.
PW-2 Bishambar Dass, stated that he is the Secretary of the Co-operative Society, village Beh, Tehsil Dehra, District Kangra, Himachal Pradesh. Kuldip Sharma, had an account in the Society. On 22.12.2001, Kuldip Sharma, came to the Society and had taken a loan of ` 10,000/-.
PW-3 Amarjit Singh, Naib Tehsildar, stated that on 25.1.2002, as per order of the Sub Divisional Magistrate, Phillaur, he had joined the police party. In his presence the appellant got recovered a dead body from the specified place. Body was in the form of bones broken into pieces. Dead body was taken into police possession vide CRA-D-634-DB of 2008 -5- memo which was attested by him and other witnesses.
PW-4 Dr. Guriqbal Singh, stated that on 30.1.2002 at 4.30 p.m. he had conducted post-mortem examination on the dead body of Kuldip Sharma, brought by the police officials and observed as under:
"When the box was opened the skeleton remains were found wrapped in a white cloth. On removing the cloth some of the bones were found separated from the body whereas some were found attached to the body with partially putrefied ligaments and muscles. Tufts of scalp hairs were found present by the side of the body. Blackish soft semi-fluid mass was seen adherent to the body which were various tissues which during the process of putrefaction had become soft and loose. Bones were exposed and orbits were empty. The cartilages and ligaments were similarly softened. The various bones which could be identified were:
1. Right tibia -- NAD -- piece taken and sent for chemical examination.
2. Left femur -- NAD
3. Left tibia -- NAD
4. Skull with scalp hairs -- Sutures not fuses (Saggital coronal and lamdoid)
5. Calcaneum (left) - NAD
6. Right foot -- NAD Nothing AB normal was detected in right femur, CRA-D-634-DB of 2008 -6- left ulna and radius, lumbar vertebra and trasals.
Mandible was found missing. Mouth, stomach, small intestine, large intestine, liver, spleen, kidneys, bladder were converted into semi-fluid, blackish mass at places."
Dead body was identified by Hans Raj Sharma-complainant and Kishori Lal. Probable time lapsed between the injury and death was to be given lateron and between death and post-mortem examination about 1 to 3 months. Ex. PA is the copy of post-mortem report. He cannot say about the cause of death as the dead body was in putrefied stage, possibility of death due to strangulation cannot be ruled out.
PW-5 Kishori Lal, stated that on 25.1.2002, he had received a telephonic message from his brother Hans Raj, regarding the recovery of dead body of their brother Kuldip Sharma. As per telephonic message, he alongwith his relatives/friends came to Ludhiana. The appellant got recovered a dead body in the presence of Naib Tehsildar. They had identified the dead body on the basis of a leather belt as the dead body was in the form of bones broken into pieces. Dead body along with the belt was taken into police possession vide memo which was attested by him and other witnesses.
PW-6 Constable Piare Lal, tendered his affidavit Ex. PW- 6/A. PW-7 SI Balwinder Singh, had partly investigated the case, from 25.1.2002, onwards.
PW-8 ASI Gopal Singh, stated that on 26.1.2002, he was with the police party headed by SI Balwinder Singh and after raiding the CRA-D-634-DB of 2008 -7- house of the appellant a Maruti Van bearing registration No. PB-37- 0900, was taken into police possession vide memo Ex. PW-7/B, attested by the witnesses.
PW-9 Constable Ram Saran, PW-10 HC Malkit Singh and PW-11 Constable Baljit Singh, tendered their affidavits Ex. PG, PH and PJ, respectively.
PW-12 ASI Jagroop Singh, had also partly investigated the case.
PW-13 Pawan Modgil, stated that he is a partner of M/s Modgil Fabrics, Ludhiana. Kuldip Sharma and Hans Raj were the employees in the factory. On 22.12.2001, Hans Raj, came along with a Maruti car bearing registration No. PB-37-0900, because Kuldip Sharma was to visit his village Dehra situated in District Kangra (Himachal Pradesh). Satish Kumar-appellant, was the driver of Maruti Van but after 22.12.2001, Kuldip Sharma, did not attend the factory.
PW-14 Hans Raj, Clerk in the office of SDM, Phillaur, stated that as per record, Maruti Van bearing registration No. PB-37- 0900 was registered in the name of Mrs. Vishav Priya and the vehicle was transferred in the name of Satya wife of Sham Lal on 8.4.2001. Ex. PW-14/A, is the registration certificate of the Maruti Van.
PW-15 ASI Karam Singh, stated that on 26.1.2002, he was with the police party headed by SI Balwinder Singh and in his presence Maruti Van bearing registration No. PB-37-0900, was recovered from the house of the appellant. On 27.1.2002, appellant got recovered a purse as per his disclosure statement. On 21.3.2002, co-accused Ram Lubhaya @ Laddu (acquitted by the trial Court) got recovered a parna CRA-D-634-DB of 2008 -8- from the specified place.
After close of the prosecution evidence, statement of appellant under Section 313 of the Code of Criminal Procedure (Cr.P.C.-for short) was recorded. Appellant denied all the allegations of the prosecution and pleaded to be innocent.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of the evidence available on the file, appellant was convicted and sentenced as stated aforesaid.
We have heard learned counsel for the appellant, learned State counsel and carefully gone through the evidence available on the file.
Learned counsel for the appellant contended that according to the prosecution story Hans Raj-complainant and his brother Kuldip Sharma (deceased) were the employees of M/s Modgil Hosiery, owned by PW-13 Pawan Modgil. His salary was ` 3500/- per month. Deceased was also paying rent at the rate of ` 650/- per month. Deceased was a resident of village Dehra situated in District Kangra (Himachal Pradesh). However, there is no evidence on the record that the deceased was owning any plot in Ludhiana or that he was residing separately on rent. Therefore, there was no reason from him to hire a taxi to visit his native village Dehra situated in District Kangra (Himachal Pradesh) to get a loan of ` 10,000/- from the Co-operative Society, village Beh for the purchase of buffaloes or to raise construction. If, the deceased wanted to obtain loan from the said Co-operative Society to purchase buffaloes or to raise construction, then he was expected to CRA-D-634-DB of 2008 -9- visit his native village by bus. It is contended that on 22.12.2001, by hiring a Maruti Van bearing registration No. PB-37-0900, owned by the appellant, the deceased had gone to village Dehra situated in District Kangra (Himachal Pradesh). In case, deceased had taken a loan of ` 10,000/- from the Co-operative Society, Village Beh then after making payment of ` 10,000/- to his wife or parents, he was expected to return to Ludhiana. The deceased, it is submitted had no plot at Ludhiana and was residing alone, so, there was no reason for him to hire a taxi to visit his native village in District Kangra and bring ` 10,000/- to Ludhiana to raise construction or to purchase buffaloes. Story regarding hiring of taxi No. PB-37-0900 to get a loan from the Co-operative Society, village Beh seems to be not genuine. No relation of the deceased came forward to state that after getting a loan of ` 10,000/- deceased with the amount came back to Ludhiana on 22.12.2001, in the same taxi. There was no amount of cash with the deceased while returning from village Dehra, District Kangra (Himachal Pradesh), then the appellant had no motive to murder him. On 22.12.2001, deceased had gone to village Dehra, District Kangra (Himachal Pradesh) and was to return on the same day. In case, deceased had failed to return then the complainant should have lodged a report with the police immediately. There was no need to wait. On 23.12.2001 or 24.12.2001, the complainant could easily enquire from his relations residing in village Dehra regarding the return of Kuldip Sharma (deceased). There is no explanation as to why the complainant remained silent up to 1.1.2002. After the report was lodged on 1.1.2002, then no effort was made by the police to apprehend CRA-D-634-DB of 2008 -10- the appellant. On 25.1.2002, the complainant noticed the appellant while he was sitting in a Dhaba on Jalandhar Road, then he informed the police. The appellant was apprehended and in pursuance of his disclosure statement he got recovered a dead body. As per evidence on the file the dead body that was recovered was not identifiable. Skeleton of human body along with a leather belt was recovered and from the belt recovered along with the skeleton complainant-Hans Raj and his brother Kishori Lal, reported to the police that the dead body was that of Kuldip Sharma. The belt that was recovered are easily available in the market. At the time of evidence, the belt was not produced in Court. Prosecution was required to produce the belt in Court at the time of statements of Hans Raj-complainant and Kishori Lal, to state that the belt was the same belt which was recovered at the time of recovery of the dead body and the same was that of his brother Kuldip Sharma. Hans Raj and Kishori Lal admitted that the dead body was a skeleton with broken bones. PW-3 Amarjit Singh, Naib Tehsildar, also admitted that the dead body was in the form of bones broken into pieces and the bones were put into a cloth bag. Hans Raj and Kishori Lal, did not state a word that the dead body was identifiable. Both are categorical that the belt recovered was of their brother Kuldip Sharma, but the belt not produced.
PW-4 Dr. Guriqbal Singh, Medical Officer, had conducted post-mortem examination on the dead body but he did not state a word that the body was identifiable. Post-mortem report is not clear as to whether the dead body was that of a male or a female and what was the age of the deceased. Report is not clear as to what was the cause of CRA-D-634-DB of 2008 -11- death. Doctor simply stated that possibility of death due to strangulation cannot be ruled out but when there was no head or neck then doctor was not in a position to state that death was due to strangulation, as only broken bones were recovered in pursuance of the disclosure statement. First of all evidence is not cogent or convincing that the deceased had taken loan from the Co-operative Society, village Beh and in case, deceased had taken loan from the said Society then evidence is not clear that deceased with the cash came back from his village on 22.12.2001 and if deceased failed to return to Ludhiana on 22.12.2001 then no report till 1.1.2002 was lodged. After the report was lodged on 1.1.2002, no effort was made to apprehend the appellant. According to the prosecution story, the appellant was seen by the complainant while sitting in a Dhaba who then informed the police. If there was recovery of broken bones as per disclosure statement then there is a doubt about the identification of the dead body. As per report of the Forensic Science Laboratory, Ex. PX, no poison was detected. When evidence is not clear that dead body was of a male or female and what was the approximate age of the deceased then it is not safe to opine that the dead body was that of Kuldip Sharma, who had gone with the appellant to his native village Dehra District Kangra (Himachal Pradesh) on 22.12.2001.
Learned State counsel submitted that the taxi of the appellant was hired by the complainant to visit Kangra but it did not return to Ludhiana. It is submitted that photocopy of the pronote Ex. PW-2/A, in favour of the Co-operative Society, shows that a loan of ` 10,000/- was obtained by the deceased. After collecting the loan CRA-D-634-DB of 2008 -12- amount from the Co-operative Society, the deceased with the appellant had left village Dehra. Therefore, the appellant had the motive to murder because the cash amount was with the deceased. It is when the complainant failed to know about the whereabouts of the deceased, then a report was lodged on 1.1.2002. Dead body was recovered in pursuance of the disclosure statement suffered by the appellant on 25.1.2002. Along with the skeleton one leather belt was recovered and from that leather belt the dead body was identified by the complainant and his brother Kishori Lal, as of Kuldip Sharma. The complainant, it is submitted had no enmity with the appellant and without enmity there was no occasion for the complainant to name the appellant as an accused.
First submission of the learned defence counsel for the appellant is that the story regarding hiring of taxi to visit village Dehra, District Kangra, to take a loan of ` 10,000/- from the Co-operative Society, inspires no confidence because the deceased was getting only ` 3500/- per month as salary, out of which he was paying ` 650/- as rent.
After going through the evidence on file, submission of the learned defence counsel for the appellant seems to be reasonable one. Deceased and Hans Raj-complainant were employees of M/s Modgil Hosiery Ludhiana, owned by PW-13 Pawan Modgil. Deceased and the complainant were residing separately on rent. Deceased was getting ` 3500/- per month as salary, out of which he was paying ` 650/- per month as rent. Deceased was the resident of village Dehra situated in District Kangra (Himachal Pradesh). To take a loan of ` 10,000/- to CRA-D-634-DB of 2008 -13- purchase buffalo or to raise construction there was no need to hire a taxi because there was no emergency to borrow an amount of ` 10,000/- from the Co-operative Society. The deceased had no plot at Ludhiana. He was residing alone. So, he was not to raise construction at Ludhiana. There was no necessity to purchase a buffalo. The deceased, if he was to purchase a buffalo for the family or to raise construction in his native village Dehra, then for that purpose to take a loan from the Co-operative Society, he was expected to go to his village Dehra in District Kangra and give the amount to his family. District Kangra is not near Ludhiana. At least 4-5 hours are required to visit district Kangra (Himachal Pradesh) by car from Ludhiana. In case, vehicle No. PB-37-0900 of the appellant was hired by the complainant party, then the question is whether the deceased had actually borrowed ` 10,000/- from the Co-operative Society. PW-2 Bishamber Dass, is the Secretary of the Co-operative Society, Village Beh, Tehsil Dehra, District Kangra, Himachal Pradesh. In examination-in-chief he stated that on 22.12.2001, Kuldip Sharma, came to the Co-operative Society, in a van to take a loan of ` 10,000/- but in cross-examination he stated that loan was sanctioned prior to 22.12.2001. No formal application was moved to get a loan. Record of the Co-operative Society was not brought to show that before 22.12.2001, loan of ` 10,000/- was sanctioned. If a member of the Co-operative Society is to borrow loan then formal application is required to be moved. In view of the application, loan was to be sanctioned by the competent authority but without any formal request there was no occasion to sanction loan. In case without any formal application loan was sanctioned and actually CRA-D-634-DB of 2008 -14- ` 10,000/- was collected by the deceased, then the question is whether deceased came back from his village on 22.12.2001. No family member of the deceased came forward to state that after collecting ` 10,000/- from the Co-operative Society, the deceased with the amount had left village Dehra situated in District Kangra. When deceased had no plot at Ludhiana and was residing alone then what was the need to borrow loan from the Co-operative Society of village Beh by hiring a taxi from Ludhiana. Ex. PW-2/A, is the photocopy of the pronote alleged to be executed in favour of the Co-operative Society but no marginal witness of the pronote appeared to state that on 22.12.2001, the pronote Ex. PW-2/A was executed by the deceased in favour of the Co- operative Society and payment was received by the deceased. Payment was to be spent to purchase buffalo or to raise construction at Ludhiana and not at village Dehra. Original pronote was not brought by the Secretary (PW-2) of the Co-operative Society. Therefore, the story regarding hiring of a taxi bearing registration No. PB-37-0900, by the deceased to visit village Dehra to borrow loan from the Co-operative Society indeed inspires no confidence.
As discussed earlier on 22.12.2001, the deceased along with the appellant had gone to village Dehra and he was to return on the same day, after obtaining the loan amount from the Co-operative Society but he failed to return. If on 22.12.2001, deceased had obtained a loan from the Co-operative Society but he failed to return back to Ludhiana then on the next day i.e. 23.12.20012 or soon thereafter a report should have been lodged with the police. When deceased failed to return to Ludhiana, then the complainant was CRA-D-634-DB of 2008 -15- expected to enquire from his village as to why Kuldip Sharma, had not returned. There is no explanation by the complainant as to why a report was not lodged immediately when the deceased had failed to return on 22.12.2001. If we presume that complainant had made an effort to know about the whereabouts of Kuldip Sharma and when he failed to trace Kuldip Sharma then a report was lodged on 1.1.2002, then question is whether after lodging the FIR an effort was made by the police to arrest the appellant. Evidence on the file is that the appellant was a taxi driver. Appellant was owning a taxi and operating the taxi through the Taxi Union, Phillaur. No effort is shown to have been made by the police to contact the President of the Taxi Union, Phillaur or Ludhiana, to know about the whereabouts of the appellant. One fine morning on 25.1.2002, the complainant is said to have noticed the appellant sitting in a Dhaba situated on Jalandhar road. Information in this regard was given to the police and then the police after a raid apprehended the appellant from the Dhaba on Jalandhar Road. The appellant was interrogated and he suffered a disclosure statement. In pursuance of the said disclosure statement the appellant got recovered a dead body from the specified place. Complainant and his brother Kishori Lal were present at the time of recovery of the dead body along with Amarjit Singh, Naib Tehsildar. The dead body was a skeleton and was not identifiable. Complainant-Hans Raj and his brother Kishori Lal while appearing in Court stated that a skeleton of a human body was recovered with a belt and from the belt they had identified the dead body of their brother Kuldip Sharma. Hans Raj, in the last lines of his examination-in-chief stated that he along with this brother Kishori Lal CRA-D-634-DB of 2008 -16- was present with Amarjit Singh, Naib Tehsildar and the police party got recovered a skeleton of a human body with a belt which was purchased by him and the said belt was taken from him (Hans Raj) by his brother (Kuldip Sharma). He identified the dead body of his brother from that belt. In cross-examination Hans Raj stated that the recovered body was a skeleton with partially broken bones. He could not tell the number of bones. Belt was of a black colour and the belts of that type are available in the market.
PW-3 Amarjit Singh, Naib Tehsildar, as per prosecution story was present at the time of recovery of dead body and stated that the body was in the form of bones broken into pieces. Bones were put into a cloth bag which was sealed. He has not stated a word that along with the dead body, a leather belt was also recovered and the body was identifiable.
PW-5 Kishori Lal, is the next witness of recovery. He is the real brother of the deceased. Kishori Lal stated that he received a telephonic message from his brother Hans Raj regarding the recovery of dead body. As per message he came to the place of recovery then the appellant got recovered the dead body of his brother Kuldip Sharma. They had identified the dead body especially on the basis of the belt. Dead body was in the form of broken bones. Kuldip sharma, was missing since 22.12.2001 and a report in this regard was lodged on 1.1.2002. The appellant was arrested on 25.1.2002. Kishori Lal, received a telephonic message from his brother Hans Raj-complainant regarding the recovery of dead body but Hans Raj did not state a word that after the recovery of dead body, he had a telephonic talk with his CRA-D-634-DB of 2008 -17- brother regarding the recovery of dead body of Kuldip Sharma. After the recovery of dead body, there was no idea to telephone Kishori Lal, to come from Kangra to the place of recovery. Number of witnesses were available. Naib Tehsildar was with the police party. In the presence of Naib Tehsildar and the complainant it was very easy to recover the dead body as per the disclosure statement of the appellant. In case the complainant had telephoned Kishori Lal to visit the place of recovery and there was a recovery of dead body then the question is whether the dead body that was recovered was of Kuldip Sharma or somebody else. Along with the dead body one leather belt was recovered and only from the leather belt both the brothers namely Hans Raj and Kishori Lal, reported to the police and identified that the dead body was that of their brother Kuldip Sharma. Leather belt was not produced in Court when Hans Raj and Kishori Lal, appeared as witnesses to state that the belt shown to them was the same belt which was recovered at the time of recovery of the skeleton. Leather belt as is said to have been recovered are easily available in the market. As discussed earlier, broken bones were recovered. Post-mortem report is silent as to whether the dead body recovered is that of a male or a female or as to what was the approximate age of the deceased. After post-mortem examination, the doctor ought to have specifically stated that the bones are that of a male or a female and what was the approximate age of the deceased.
Dr. Modi in Chapter No. III, of Medical Jurisprudence and Toxicology ,while dealing with the subject of personal identity of a dead body observed that in India due to rapid decomposition in the hot CRA-D-634-DB of 2008 -18- seasons, or through damage caused by wild animals when exposed on the outskirts of a village, then identification of a dead body sometimes becomes very difficult. However, it is essential for a dead body to be thoroughly identified and the proof of corpus delicti to be established before a sentence is passed in murder trials, as unclaimed, decomposed bodies, or portions of a dead body, or even bones are sometimes brought to support false charges. In a country like India, it is not difficult to obtain such bodies, since villagers are in the habit of cremating bodies partially, or throwing them into shallow streams, rivulets or canals, or burying them in shallow graves from where carrion feeders may dig them out. Sometimes, in order to mislead, someone else's clothes or handkerchief may be deliberately put on the dead body.
In the present case, dead body was identified from a leather belt only which was also not produced in Court. One purse of the deceased was recovered in pursuance of the disclosure statement suffered by the accused-Ram Lubhaya, who has been acquitted by the learned trial Court. Story regarding recovery of purse in pursuance of the disclosure statement suffered by Ram Lubhaya, who has been acquitted by the trial Court was found to be not genuine. Therefore, the possibility of implicating the present appellant on the basis of a leather belt only particularly when the doctor is not clear as to whether the dead body was that of a male or female and what was the approximate age of the deceased it would be unsafe to opine that the dead body was that of Kuldip Sharma. In view of the statements of the complainant, his brother Kishori Lal and the doctor, we are of the view that the CRA-D-634-DB of 2008 -19- prosecution has not been able to establish or prove that the dead body recovered as per disclosure statement of the appellant, was that of Kuldip Sharma.
Ram Lubhaya brother of the present appellant was also apprehended in this case. In view of the disclosure statement suffered by him one 'parna' was got recovered but story regarding recovery of 'parna' in pursuance of his disclosure statement was disbelieved by the learned trial Court and ultimately, he was acquitted of the charge levelled against him.
According to the complainant-Hans Raj on 22.12.2001 the deceased Kuldip Sharma was last seen in the company of the appellant but Kishori Lal, the other brother of the deceased or any other relation of the deceased from village Dehra did not state that on 22.12.2001, Kuldip Sharma-deceased along with the appellant came to village Dehra in a Maruti Van bearing registration No. PB-37-0900 and after collecting payment of ` 10,000/- from the Co-operative Society, the deceased left with the appellant in the same car and came back from village Dehra to Ludhiana. In the circumstances, the mere recovery of broken bones of a human body on 25.1.2002, as per disclosure statement of the appellant particularly when the doctor is unsure about the cause of death, we are of the view that the prosecution case, inspires no confidence.
In a case based on circumstantial evidence, motive assumes importance but in this case there was no motive for the appellant to murder Kuldip Sharma-deceased as no cash amount is clearly established to be with him. The chain of circumstantial CRA-D-634-DB of 2008 -20- evidence is not complete which can be said to prove the guilt of the appellant beyond the shadow of reasonable doubt.
In view of all that has been discussed above, we are of the view that evidence on the file was not rightly scrutinized by the learned trial Court. The impugned judgment suffers from infirmity and illegality and the same is set aside. Accordingly, the appellant is acquitted of the charge levelled against him.
The appellant is in custody. Release warrants be issued and he be released forthwith, if, not wanted in any other case.
Appeal accepted.
( JORA SINGH )
JUDGE
July 08, 2011 ( S.S. SARON )
rishu JUDGE