Punjab-Haryana High Court
State Of Haryana vs Bhupender on 31 October, 2008
Author: Jitendra Chauhan
Bench: K.S.Garewal, Jitendra Chauhan
Crl.M.No.397-MA of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.M.No.397-MA of 2008 (O&M)
Date of Decision: October 31, 2008
State of Haryana .......Appellant.
Versus
Bhupender .......Respondent
CORAM:- HON'BLE MR.JUSTICE K.S.GAREWAL
HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.PS Sullar, Senior Deputy Advocate General, Haryana.
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JITENDRA CHAUHAN, J.
1. State of Haryana has filed the present application under Section 378(4) of the Code of Criminal Procedure assailing the judgment of acquittal dated 17.4.2008, passed by the Additional Sessions Judge, Jhajjar.
2. Complainant Smt.Pushpa Jain, PW12, lodged a report with Police Station Parshant Vihar, New Delhi, stating that her husband Vinod Jain left home on 26.5.2006 by Santro Car at 12.30 P.M. and did not return thereafter. At the time of leaving the house, her husband was wearing light green coloured pants, sky blue coloured shirt and leather shoes. In pursuance of the statement, FIR Exhibit P26, was registered on 18.6.2006 when the whereabouts of Vinod Jain could not be known.
3. During the investigation, the accused suffered disclosure statement that he knew the deceased, Vinod Jain. They were together in Crl.M.No.397-MA of 2008 -2- Tihar Jail. After being released from Jail, they became friends. The accused lent Rs.50,000/- to the deceased. The deceased was unable to repay the loan. The relations became strained on account of non-payment of loan. Moreover, the accused suspected that while they had consumed drinks on 26.4.2006, the deceased had mixed some intoxicant in his drinks.
4. On 25.5.2006, deceased Vinod Jain contacted the accused and fixed up a meeting for 26.5.2006 at Bahadurgarh. After having liquor at around 6.30/7.00 P.M., when they were in the area of Bajidpur, the accused strangulated the deceased and threw the dead body into a deep abandoned ditch. The accused strangulated the deceased with a motive that he would sell the car of the deceased and realize the loan amount.
5. It is in this background, we have been called upon to examine whether the deceased was strangulated by the accused? The entire case of the prosecution rests on the disclosure statement of the accused. In pursuance of the disclosure statement made by the accused, one watch, finger ring, purse, health card and burnt pieces of Registration Certificate of Santro Car were recovered. Dead body was not recovered in pursuance of the disclosure statement.
6. The body believed to be of the deceased, was spotted by PW9 Bhule Ram and PW10 Kanwal Singh. Both these PWs have categorically stated that ring finger and wrist watch were taken into possession by the police from the dead body. The recovery, as narrated by PW9 and PW10, belies the earlier recovery allegedly effected from the accused on the basis of the disclosure statement. Moreover, Smt.Pushpa Jain, wife of the deceased, in her statement under Section 161 of the Code of Criminal Procedure stated that her husband was wearing a Titan watch, whereas the Crl.M.No.397-MA of 2008 -3- watch recovered at the instance of the accused was a Casio wrist watch.
7. Another point that emerges for consideration is that the disclosure statement was suffered by the accused in the presence of the police officials, the deceased's wife and her brother. The police had enough opportunity to join an independent witness from the locality for attesting the recovery memos. However, for the reasons best known to the Investigating Officer, no independent witness was joined from the locality.
8. The description of the dead body recovered in the presence of PW9 Bhule Ram and PW10 Kanwal Singh was having underwear and vest. The colour of the underwear was stated to be white and the socks and shoes were black. The deceased was having long hair and beard and looked like a 'Sikh'. The identification of the dead body was done after seeing the photographs and pants, shirt, shoes, underwear and Baniyan those were found on the body of the deceased.
9. In the complaint, PW12 Pushpa Jain had recorded that when her husband left home on 26.5.2006, he was wearing grey coloured shirt, light green pants, black shoes, sky blue coloured white Baniyan and white socks. As per the inquest report, Exhibit P55, the dead body recovered by Bhule Ram, PW9 and Kanwal Singh, PW10 was wearing white shirt, coca- cola colour Baniyan, black underwear, white socks and black shoes.
10. Dr.Dharmender Ranga, PW23, who conducted the post mortem, stated that the deceased was wearing greyish white shirt, creamish white Baniyan, dark brown underwear, pair of shoes without laces and pair of creamish white socks. As per post mortem report, the ears, eyes, mouth, nose and neck were deformed, and the facial features were distorted. The face was not in recognizable condition.
Crl.M.No.397-MA of 2008 -4-
11. Admittedly, this is a case of circumstantial evidence. The Hon'ble Supreme Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii)those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
12. The Hon'ble Supreme Court in Tamilselvan v. State represented by Inspector of Police, Tamilnadu (2008) 7 SCC 755 observed as under:-
10. As regards the material contradictions, we have already stated above that nobody has been named as an accused in the FIR. It is only later that Accused 1 to 6 have been implicated by name. It has already been noted above that the FIR was lodged 8 hours after the incident. Thus there was opportunity of subsequent improvement in the prosecution case. PW 1 Elangovan, who was also the first informant, has stated in his deposition before the trial court that he had not mentioned the names of the accused in the FIR because he was shocked due to the assault and because of the death of Swaminathan, and hence Crl.M.No.397-MA of 2008 -5- the names of the accused did not strike his mind. We find it difficult to accept this version because the FIR was not lodged immediately after the incident, but 8 hours thereafter. Hence the shock in the mind of Elangovan would have subsided after these 8 hours, and there was no good reason why he did not name the accused in the FIR, if he had actually seen and identified them.
13. As per the statements of PW-12, Smt. Pushpa Jain, complainant and PW-23, Dr. Dharmender Ranga, who conducted the post-mortem, there are material discrepancies regarding the articles worn by the said Vinod Kumar Jain, husband of the complainant-PW-12, the complainant.
14. In our view, these are material inconsistencies. On the facts of the case, we are of the view that the prosecution has not been able to prove its case beyond reasonable doubts by leading a cogent and satisfactory evidence.
15. Thus, we feel that the judgment dated 17.4.2008 passed by the learned trial court is based on facts and sound reasoning. Therefore, we feel that the present case is not a fit case for grant of leave to appeal and accordingly the same is declined.
( JITENDRA CHAUHAN ) JUDGE ( K .S. GAREWAL ) JUDGE October 31, 2008 SRM Note: Whether referred to reporter? Yes/No