Punjab-Haryana High Court
Rajesh vs State Of Haryana on 1 May, 2009
Author: Jora Singh
Bench: Jasbir Singh
Crl. Appeal No. 207-DB of 2008. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No. 207-DB of 2008.
DECIDED ON : 01.05.2009
Rajesh
Appellant.
VERSUS
State of Haryana.
Respondent.
CORAM :HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Sukhwinder Singh Chatrath, Advocate,
for the appellant.
Mr. S.S.Randhawa, Additional Advocate
General, Haryana.
JORA SINGH,J.
Through the instant criminal appeal, Rajesh son of Parkash Chander, has impugned the judgment dated 14.1.2008 and order dated 16.1.2008, rendered by the Ld. Sessions Judge, Fatehabad in Sessions case No. 69 of 2003, Sessions Trial No. 104 of 19.11.2003 bearing First Information Report No. 265 dated 03.12.2002 registered at Police Station City, Tohana, under Crl. Appeal No. 207-DB of 2008. 2 Sections 302/201 of the Indian Penal Code. The appellant-accused was convicted under Section 302 of the Indian Penal Code and was sentenced to life imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine, he was directed to further undergo simple imprisonment for a period of three months. The appellant-accused was further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3000/-. In default of payment of fine, he was directed to undergo simple imprisonment for a period of 15 days. Both the substantive sentences were, however, ordered to run concurrently.
Prosecution story, in brief, is that on 19.11.2002, written complaint was presented by Satbir Sharma before the Station House Officer, Police Station Tohana at 9.10 P.M. on the allegation that he is resident of village Santhali. His younger brother Ved Parkash was the employee of Home Guard and was on duty since 21.9.2002 in the Godowns of ARDC, situated at Simbal Road, Tohana. Ved Parkash had taken a room on rent from Hardayal Singh, a retired Patwari in Indira Colony and in that room, he had kept his luggage.
Krishan son of Kartar Singh was also an Crl. Appeal No. 207-DB of 2008. 3 employee of the Home Guard Department alongwith Ved Parkash. Krishan was having cordial relation with Ved Parkash and used to visit his room frequently. On 14. 11.2002, Kirpal came to his house in village Santhali and told that Ved Parkash and his wife were telling to visit their house on account of Diwali festival and was to join his duty on 5.11.2002 but Ved Parkash failed to join his duty till today. Satbir replied that Ved Parkash failed to visit his house till today. As per information supplied by Krishan, complainant and his family members made an effort to locate Ved Parkash, but he was not available. On inquiry, they came to know that Ved Parkash had friendship with Krishan, Rejesh and Pammi. One iron cot, attaché case, photograph and some other household articles were found missing from this room Ved Parkash is missing from the room on rent situated at Tohana one day earlier to Diwali. In view of the written complaint of Satbir dated 19.11.2002 a DDR was recorded. Copy of the same is Ex.P-30.
On 3.12.2002, Satbir had gone to Police Station, Tohana then lodged report with the police to the effect that his brother Ved Parkash was serving in the Home Guard department. He had taken one room on Crl. Appeal No. 207-DB of 2008. 4 rent from Hardayal Singh. On 4.11.2002, Krishan reported that Ved Parkash is absent from duty. Number of articles were missing from his room and an effort was made to locate him (Ved Parkash) but he is not traceable. Ved Parkash used to visit the house of Rajesh, Krishan and Pammi frequently. DDR dated 19.11.2002 was got recorded. Today i.e. 3.12.2002, he came to Tohana in search of Ved Parkash, Zile Singh resident of Tohana met him and reported that on 2.11.2002, Ved Parkash was seen while quarrelling with Rajesh while present near the bridge of Bhakhra canal towards canal colony. While quarrelling, they had gone towards canal colony Rajesh was heard while saying that he (Ved Parkash) had an evil eye on his sister. Now he is very much certain that Ved Parkash was kidnapped by Rajesh with an intention to eliminate him. Ved Parkash used to wear white kurta and Pyjama and keep same papers and photographs of the entire family. In view of the written complaint of Satbir First Information Report under Section 364 of the Indian Penal Code was recorded.
Police Party headed by Inspector Subhash Chander along with complainant Satbir went to the Crl. Appeal No. 207-DB of 2008. 5 Godowns of ARDC, Tohana. Statement of the witnesses were recorded. Rough site plan with correct marginal note was prepared.
On 6.12.2002, police party headed by Inspector Subhash Chander was present near Kenchi Chowk, Tohana, where Sukhi Ram produced accused before the police. Rajesh was interrogated who suffered disclosure statement Ex P-20 and in pursuance of the same, he got recovered one attachi case, one woolen chaddar, one woolen blanket chakdar, one cotton Dari, one tiffen of steel, one transistor, one small dolli of steel, one glass of steel etc and a purse. Recovered articles were sealed with the seal "SC". Sealed parcels were taken into police possession vide memo attested by the witnesses. After return to the Police Station, the case property was deposited with the MHC.
On 11.2.2002, in pursuance of the disclosure statement Ex.P-16 sufferred by Rajesh, he (Rajesh) got recovered lock and key from the specified place. Lock and key were sealed with the seal "SC" and were taken into police possession vide memo duly attested by witnesses.
On 8.11.2002, police party headed by Assistant Crl. Appeal No. 207-DB of 2008. 6 Sub Inspector Suraj Mal, Police Station Rania in connection with patrol duty and excise checking was present in the area of village Bahiya, where Harnam Singh Sarpanch met the police party and reported that while present near the bridge of canal then sighted two dead bodies. Entry was made in the Roznamcha Ex.P-3. Then police party headed by Assistant Sub Inspector Suraj Mal along with Harnam Slingh and Krishan Chowkidar had gone to the spot where dead bodies were lying. Inquest reports were prepared. Dead bodies were sent to Civil Hospital for post mortem examination. On 9.11.2002, doctor had handed over kurta and Pyjama and the same were taken into police possession. After post mortem examination, dead bodies of un-known persons were got cremated through Municipal Committee, Sirsa.
On 12.12.2002, police party headed by Assistant Sub Inspector Nihal Singh, Tohana along with Satbir had gone to Police Station Rania, MHC had produced before them the clothes worn by the deceased. Satbir had identified the clothes of his deceased brother Ved Parkash. Clothes were sealed with the seal bearing impression "NS".
Crl. Appeal No. 207-DB of 2008. 7
After the completion of investigation, the accused was challaned.
Vide order dated 10.2.2003 by Sub Divisional Judicial Magistrate, Tohana, case was committed to the Court of Session, Fatehabad.
Accused was charged under Sections 302/201 IPC to which he pleaded not guilty and claimed trial.
In order to substantiate its case, the prosecution examined as many as 12 witnesses.
PW-1 Assistant Sub Inspector Suraj Mal stated that on 8.11.2002, he along with other police officials was present in the area of village Rania. Harnam Singh Sarpanch reported that he has noticed two dead bodies lying near the bridge of canal. Chowkidar Krishan was also joined in the party. Police party had gone to the spot where dead bodies were lying. Inquest reports were prepared. Dead bodies were sent to the hospital for post mortem examination. Through Municipal Committee, Sirsa, the bodies of unknown persons were got cremated.
PW-2 Assistant Sub Inspector Guljari Lal stated that on 12.12.2002, he was serving as MHC Rania. Assistant Sub Inspector Nihal Singh along with Crl. Appeal No. 207-DB of 2008. 8 Satbir came to Police Station and produced shirt and Pyjama before Assistant Sub Inspector Guljari Lal and the same were sealed by Assistant Sub Inspector Nihal Singh. Post-mortem report, inquest report and the clothes were taken into police possession vide memo attested by the witnesses.
PW-3 Pala Ram Patwari had prepared scaled site plan Ex.P-13.
PW-4 Kewal Singh stated that on 2.11.2002, Ved Parkash was on duty from 4 P.M. to 12 night at the ARDC godown then from 12 mid night to 8 A.M. On 2.12.2002, Ved Parkash was seen with Rajesh. Ved Parkash had gone for taking meals with Rajesh after that he did not turn up.
PW-5 Hardayal Singh stated that on 2.11.2002 at about 8/8.30 P.M. he had seen Ved Parkash with Rajesh. On 14.11.2002, shetter of the room on rent with Ved Parkash was found half opened. No article was lying in the room, then he had gone to enquire about Ved Parkash on 15.11.2002 Satbir came to know about the whereabouts of Ved Parkash.
PW-6 Zile Singh stated that on 2.11.2002 at 9/9.30 P.M. while present near the bridge of canal then Crl. Appeal No. 207-DB of 2008. 9 sighted Ved Parkash and Rajesh while abusing each other. Rajesh was saying to Ved Parkash that he (Ved Parkash) had an evil eye on his sister.
PW-7 Dr. Ashok Gupta stated that on 9.11.2002 at 1 P.M., he had conducted post mortem
examination on the unknown dead bodies and observed as under:-
"The length of the body was 5' x 6". There was no ligature mark on the neck. The dead body was of a adult male in advance stage of putrefaction with eye balls protruding out of sockets tongue coming out of oval cavity abdomen was burst open. Body was soiled with mud and weeds at places body was covered by adulty white kurta and loose loin cloth extrimities like finger tips toes tip of the nose were eaten up and bones protruding. Body was in semi flexed position with no evident injury. Rigor mortis was in passing off stage. Scalp, skull and vertebrate healthy. Membrances brain spinal cord congested and not opended.
Continued: Scalp hair easily come out on pulling and skin get peeled off with little effort. On dissection, lungs were edematous with rib marking on surface and lung taken out easily sinks in water. On Crl. Appeal No. 207-DB of 2008. 10 cut section lung exudes sero sensuous froathy material. Larynx and trachea contained mud, weeds, stomach contained about 150 ml, semi digested food material with no smell of alcohol, small intestines healthy contained chyme. All other organs were healthy. However, the stomach contained muddy water with small weeds. Mouth and esophagus contained small amount of mud and weeds.
As per opinion of the doctor, the cause of death in this case was asphyxia as a consequence of drowning. Probable time that elapsed between injury and death within few minutes and between death and post mortem within 3 to 7 days.
PW-8 Assistant Sub Inspector Nihal Singh stated that on 12.12.2002, he along with Satbir had gone to Police Station Rania. MHC had produced before him Pyjama, shirt and underwear of the deceased Ved Parkash and the same were made into sealed parcel bearing impression "NS".
PW-9 Satbir is the complainant. He has supported the prosecution story.
PW-10 Sukhi Ram stated that on 6.12.2002, Rajesh came to his house and made extra judicial Crl. Appeal No. 207-DB of 2008. 11 confession that Ved Parkash was murdered on 2.11.2002. Dead body was thrown in the Bhakhra canal. Room of Ved Parkash was opened. Articles lying in the room were found stolen. Accused was produced before the police and as per disclosure statement suffered by the accused, different articles were got recovered from the specified place.
PW-11 Inspector Subhash Chander had partly investigated the case in hand.
PW-12 MHC Bahadur Singh brought the record and proved copy of DDR Ex.P-30.
After the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. to explain the allegations levelled against him. Accused denied all the allegations and claimed to be innocent.
Defence version of the accused is that he was detained by the police before the present occurrence merely on suspicion and later on false case was registered against them.
Opportunity was given to lead defence but no defence was led.
We have heard Mr. S.S.Chatrath, learned counsel for the appellant-accused, Mr. S.S.Randhawa, Crl. Appeal No. 207-DB of 2008. 12 Additional Advocate General, Haryana and have gone through the file very carefully and thoroughly with their assistance.
Learned counsel for the appellant-accused argued that it was a case of blind murder. There was no eye witness. Case is based on circumstantial evidence. There was no motive to commit the crime. Ved Parkash was employee of the Home Guard Department. He was on duty on 2.11.2002 as per Kewal Singh. After that, he was seen in the company of the appellant-accused. Appellant-accused made extra judicial confession but story qua last seen extra judicial confession is doubtful. Prosecution failed to establish beyond doubt that dead body alleged to be recovered was of Ved Parkash.
Mr. S.S.Randhawa, Additional Advocate General, Haryana, argued that Ved Parkash was seen last time in the company of the appellant-accused. Dead body was recovered on 8th November,2000. From the clothes worn by the deceased, dead body was identified to be that of the deceased Ved Parkash. Appellant- accused made extra judicial confession and as per disclosure statement he got recovered lock and key of the room of the deceased. Deceased had an evil eye on Crl. Appeal No. 207-DB of 2008. 13 the sister of the appellant-accused, due to this grudge the deceased was murdered by the appellant-accused. After murder by the appellant-accused, dead body was thrown into a canal.
First submission of the learned defence counsel for the appellant-accused was that it was a blind murder. There is no eye witness and no motive to commit the crime. Motive assumes importance when case is based on circumstantial evidence. Submission of learned counsel for the appellant-accused carries weight. Appellant-accused is the resident of Indira Colony, Tohana, whereas the deceased was the resident of village Santhali. According to the prosecution story, the deceased had an evil eye on the sister of the appellant- accused but in support of this allegation, no evidence on the file. Appellant-accused was not employee with the deceased. Appellant-accused was not related to the deceased. Suppose, the appellant-accused used to visit the quarter of the deceased or the deceased used to visit of the house of the appellant-accused and deceased had an evil eye on the sister of the appellant-accused, then story seems to be not reasonable one. Before the present occurrence, no complaint from the side of the appellant- Crl. Appeal No. 207-DB of 2008. 14 accused against the deceased. No complaint from the side of the complainant party that appellant-accused is levelling false allegation against the accused. Motive is double edged weapon and is always in the heart of the accused. Accused is to see how, why and where the crime is to be committed. Motive can be for implication of the accused, at the same time to commit the crime. But the motive assumes importance when case is based on circumstantial evidence. If we presume that there was a motive to commit the crime, then on this short ground , neither the appellant-accused can be convicted, nor the prosecution story can be discarded.
Next submission of the learned defence counsel for the appellant-accused was that evidence qua last seen is not genuine. Witnesses were introduced simply to connect the accused with the crime. Submssion of the defence counsel carries little weight. Deceased was employee of the Home Guard Department and as per Kewal Singh ( PW-4) he was on duty from 12 mid night to 8 A.M. on 2.1.2002 and had seen Ved Parkash with the appellant-accused at 8 P.M. on 2.11.2002. When duty of Kewal Singh was to start at 12 during night time then question is how Kewal Singh had seen Ved Crl. Appeal No. 207-DB of 2008. 15 Parkash in the company of the appellant-accused at 8 P.M. Deceased was the employee of the Home Guard Department. While on duty employee of the Home Guard Department wear uniform but Kewal Singh stated that while on duty, Ved Parkash was not in uniform. Before the present occurrence, Ved Parkash while on duty, used to wear uniform. Very strange that while on duty on 2.11.2002, Ved Parkash was not in uniform. Earlier to the occurrence, Ved Parkash used to wear uniform while on duty then question is why on the date of occurrence, he was not in uniform. Purposely, Kewal Singh stated that Ved Parkash while on duty was not wearing uniform because when dead body was recovered then shirt and dhoti was found on the person of the dead body. Hardayal Singh (PW5) stated that on 2.11.2002 he had seen Ved Parkash in the company of appellant- accused at about 8/8.30 P.M. while present in his room. One room of Hardayal Singh was on rent with Ved Parkash and if Hardayal Singh had seen Ved Parkash with the appellant-accused at about 8/8.30 P.M. in his room then question is how Ved Parkash was on duty from 4 P.M. on 2.11.2002. If at 8/8.30 P.M. Ved Parkash with the appellant-accused was in his room, then Crl. Appeal No. 207-DB of 2008. 16 statement of Kewal Singh (PW4) is not correct one that Ved Parkash was seen in the company of the appellant- accused at 8 P.M. while on duty. On the day of occurrence, Ved Parkash was on duty at the godown of ARDC, Tohana. Either Ved Parkash was not on duty from 4 P.M. to onwards or Ved Parkash was not in his room with the appellant-accused at 8/8.30 P.M. as stated by Hardayal Singh landlord.
Zile Singh (PW6) is the next witness qua last seen and stated that on 2.11.2002 at 9/9.30 P.M., he had seen the appellant-accused while quarrelling with Ved Parkash but statement of Zile Singh is contrary to the prosecution story because he had seen the deceased with the appellant-accused while quarrelling at 9/9.30 P.M. on 2.11.2002, then why he did not report the matter to the police Zile Singh had gone 10/12 days later to the Police Station with Satbir, Sukhi Ram, Rajinder, Krishan, Kewal etc. and their statements were recorded. If appellant-accused was seen while quarrelling with the deceased on 2.11.2002 and Zile Singh had gone to Police Station after 10/12 days and Satbir was also present with him, then statement of Satbir is not correct one that on 3.12.2002, Zile Singh had reported Crl. Appeal No. 207-DB of 2008. 17 that on 2.11.2002 he (Zile Singh) had seen Rajesh while quarrelling with Ved Parkash. In the middle of November,2002 Satbir and Zile Singh had gone to the Police Station, then Zile Singh could easily report to the police that on 2.11.2002, he had seen the appellant- accused while quarrelling with Ved Parkash. Case of Satbir complainant is that on 3.12.2002, Zile Singh met him, then he reported that on 2.11.2002, he (Zile Singh) had seen Ved Parkash while quarrelling with Rajesh. After information was received from Zile Singh on 3.12.2002 then Satbir got recorded First Information Report Ex.P-25. Statement of Zile Singh qua last seen is not correct one. Zile Singh is the resident of Tohana before the present occurrence, he was not known to the complainant. Zile Singh had not seen the complainant or the deceased before 3.12.2002, Satbir to admitted in cross examination that for the first time, he had seen Zile Singh on 3.12.2002 earlier that he was not known to him but on that day he had met Zile Singh at the shop of one property dealer. When before 3.12.2002 Zile Singh was not known to the complainant party then question is how Zile Singh had gone to the Police Station with Satbir after 10/12 days when Zile Singh had seen the Crl. Appeal No. 207-DB of 2008. 18 appellant-accused while quarrelling with the deceased on 2.1.2002. When complainant was not known to Zile Singh, then how Zile Singh can report to Satbir that he had seen Ved Parkash while quarrelling with Rajesh particularly, when Rajesh was also not known to Zile Singh.
Next submission of the learned defence counsel for the appellant-accused was that appellant- accused had made extra judicial confession before Sukhi Ram but statement of Sukhi Ram qua extra judicial confession is not correct one because Sukhi Ram was not holding any position. He had no say in the police department. Sukhi Ram was not expected to protect the appellant-accused. Extra judicial confession is normally made before a person who is in a position to protect the accused from police torture. Submission of the learned defence counsel is correct one. Sukhi Ram (PW10) is the resident of village Samain whereas appellant-accused is the resident of Tohana. Tohana is at a distance of 10 kilometer from Samain. Sukhi Ram was not on visiting terms with the appellant-accused. Deceased was also not known to Sukhi Ram. As per extra judicial confession, firstly, the appellant-accused and the deceased had taken Crl. Appeal No. 207-DB of 2008. 19 liquor, then appellant-accused gave 2-3 brick blows on the head of Ved Parkash. After the death of Ved Parkash, dead body was thrown into the canal. Sukhi Ram admitted that Police Station falls on the way while going to Kenchi Chowk where appellant-accused was produced before the police station.
As discussed earlier, dead body was recovered on 18th November,2000 from Canal minor in the area of Rania. Post mortem examination was conducted. Dead body was cremated by Municipal Committee, Sirsa as unidentified Doctor Ashok Gupta (PW-7) admitted that there was no injury on the person of dead body. Dead body was not identifiable and death was due to asphyxia, as a consequence of drowning. No legature mark was noticed. Body was soiled with mud and weeds. No smell of alcohol was noticed. Larynx and trachea found contained mud, seeds. That means story of extra judicial confession is not correct one. After murder, with a brick why no injury was noted on the head of the deceased. After death, how mud and weeds can be found in the larynx and trachea. Sukhi Ram was not known to the appellant-accused. Sukhi Ram was not holding any position. He had no say in the police department. Village Crl. Appeal No. 207-DB of 2008. 20 of Sukhi Ram was at a distance of 10 kilometer from the village of the appellant-accused. Sukhi Ram was not on visiting terms with the appellant-accused. If Sukhi Ram had gone to produce the appellant-accused before the police, then why the appellant-accused was not produced before the police station falling on the way. After crossing the police station, there was no idea that appellant-accused is to be produced before the police present near the Kenchi Chowk. Sukhi Ram (PW-10) was with Zile Singh, when they had gone to the Police Station in the middle November,2002 when Sukhi Ram was not known either to the complainant party or to the accused then question is why Sukhi Ram had accompanied Zile Singh to the Police Station in the middle of November,2002 and why the appellant-accused preferred to make extra judicial confession before this witness. Sukhi Ram was introduced simply to strengthen the prosecution story.
Defence counsel for the appellant-accused argued that occurrence is dated 2.11.2002. First Information Report was got registered on 3.12.2002. If Ved Parkash was found missing with effect from 2.11.2002, then why no missing report. Secondly, dead Crl. Appeal No. 207-DB of 2008. 21 body was recovered on 8th November, 2002 then the prosecution failed to establish that the dead body if recovered was of Ved Parkash. Submission of the learned defence counsel is correct one. According to the evidence, Ved Parkash while on duty after 2.11.2002 was found missing. On 14.11.2002, Krishan had reported to Satbir complainant that Ved Parkash was not on duty after 2.11.2002. As per information supplied by Krishan on 14.11.2002, missing report was lodged on 19.11.2002. Ex.P-30 is the missing report at 9.10 P.M. Ved Parkash while on duty failed to visit his house. Intimation was with the complainant party that Ved Parkash is not on duty then after receipt of information on 14.11.2002, why no report was lodged. Report was ultimately lodged on 19.11.2002. On 3.12.2002, Zile Singh reported to the complainant that on 2.11.2002 he (Zile Singh) had seen Rajesh and the appellant-accused while quarrelling with Ved Parkash. On receipt of intimation from Zile Singh on 3.12.2002, then Satbir got recorded the First Information Report Ex.P-25.
On 8.11.2002 the police party headed by Assistant Sub Inspector Suraj Mal Police Station Rania was present in the area of Bahiya then Harnam Singh Crl. Appeal No. 207-DB of 2008. 22 reported that two dead bodies were noticed in the canal minor. As per information, Assistant Sub Inspector Suraj Mal had gone to the spot. Two dead bodies were recovered from the canal. Entry was made in the Roznamcha. Inquest reports were prepared. Post mortem examination was got conducted, then dead bodies were cremated through Municipal Committee, Sirsa. Dead body was not identifiable. Firstly, Harnam Singh was not examined, who had informed Assistant Sub Inspector Suraj Mal that two dead bodies are lying in the canal. If intimation was correct, then the question is why photographs of the dead bodies were not got clicked from the photographer. As per Dr. Ashok Gupta, body was not identifiable. Kurta and Dhoti were found on the person of the deceased. Question is whether Kurta and Dhoti were found on the person of dead body "A" or on the person of dead body "B". Whether dead body "A" was of Ved Parkash or dead body 'B" of Ved Parkash but one thing is clear that only Kurta and Dhoti were found present on the person of deceased, whereas Assistant Sub Inspector Suraj Mal stated that Pyjama and shirt were produced before the police and the same were taken into police possession on 9.11.2002. When Crl. Appeal No. 207-DB of 2008. 23 Pyjama was not recovered from the person of the deceased, then no question of production of Pyjama before Assistant Sub Inspector Suraj Mal. After post- mortem examination, dead body was got cremated through Municipal Committee, Sirsa as unidentified. No explanation why photographs of the dead bodies were not got clicked from the photographer. Assistant Sub Inspector Nihal Singh stated that on 12.12.2002, he along with Satbir had gone to Police Station Rania shirt, Pyjama and underwear were produced by the MHC before the police party and the same were made into sealed parcel and the sealed parcel was taken into police possession. When underwear and Pyjama were not recovered, then the question is how MHC had produced Pyjama and underwear along with shirt before Assistant Sub Inspector Nihal Singh. After post mortem examination, clothes worn by the deceased were not sealed by Assistant Sub Inspector Suraj Mal or MHC. Doctor has not recovered Pyjama from the person of the deceased, but Assistant Sub Inspector Suraj Mal had taken into police possession Pyjama and shirt. Again as per the statement of Assistant Sub Inspector Suraj Mal, MHC had produced Pyjama, shirt and underwear before Crl. Appeal No. 207-DB of 2008. 24 Assistant Sub Inspector Nihal Singh. Suppose underwear, shirt and Pyjama were taken into police possession by Assistant Sub Inspector Nihal Singh, then next point is whether clothes taken into police possession were of the deceased. Deceased was on duty on 2.11.2002 as employee of Home Guard Department. Deceased used to wear uniform. If on the above said date, deceased was not in uniform and was wearing Kurta, Pyjama and underwear then clothes recovered from the person of the deceased should be shown to the complainant to report as to whether clothes are of the deceased or somebody else. Satbir brother of the deceased appeared as PW-9 but he has not stated a word that on such and such dhoti, shirt, Pyjama and underwear were produced before him and the same were identified to be of the deceased (Ved Parkash). Investigating Officer did not state a word that he had produced the clothes before the complainant and the clothes were identified to be of the deceased. When there is a recovery of some articles of the deceased then recovered articles are to be mixed with the articles of the similar nature. Then from the mixed articles the complainant is to identify as to which articles are of the Crl. Appeal No. 207-DB of 2008. 25 deceased and on identification of the articles memo is to be prepared but in the present case, Pyjama, shirt and underwear were not mixed with the articles of similar nature. Shirt, Pyjama and underwear are easily available in the market. Recovered articles were not produced before the complainant at any stage to identify them as to whether the clothes are of the deceased or not. When two dead bodies were recovered, then the prosecution was to explain whether the shirt, Pyjama and underwear were recovered from the person of dead body "A" or dead body "B". According to the doctor, there was no injury. Dead body was not identifiable. Death was due to asphyxia as a consequence of drowning vso identification of dead body from clothes is without any evidentiary value. Daily dead bodies are recovered from the canal minor and are disposed of as unidentified. To solve blind murder it is very easy to show few articles alleged to be of the deceased and recovered to implicate any one. Similarly in the present case, story qua last seen extra judicial confession is doubtful. Only shirt and Pyjama were introduced to show that dead body was of the deceased. When dead body alleged to be disposed of was not of Ved Parkash then entire story is to be Crl. Appeal No. 207-DB of 2008. 26 ignored.
No other contention was put forward.
In the light of above discussion, appeal is accepted. Appellant-accused is acquitted of the charge levelled against him. Release warrant be issued.
( JORA SINGH )
JUDGE
01.05.2009. ( JASBIR SINGH )
Anoop JUDGE