Rajasthan High Court - Jodhpur
Hans Raj @ Doctor vs State on 29 May, 2018
Author: Sangeet Lodha
Bench: Sangeet Lodha, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 746 / 2012
1. Sanjay @ Mahendra @ Dholu s/o Subhash, by caste Nath,
aged about 21 years, resident of Kabrel, P.S.Anandpur
Mandi, Haryana.
2. Somveer Singh s/o Bhoop Singh, by caste Dhanak, aged
about 19 years, resident of Kabrel, P.S. Anandpur Mandi,
Haryana.
(Lodged in Central Jail, Sri Ganganagar)
----Appellants
Versus
State of Rajasthan
----Respondent
Connected With
(1) D.B. Criminal Appeal No. 506 / 2012
Hans Raj @ Doctor s/o Shri Champa Lal, by caste Mahajan, R/o-
Village Kabrel, P.S. Adamkhor Mandi, Distt. Hisar (Haryana)
(Lodged in Central Jail, Sri Ganganagar)
----Appellant
Versus
State of Rajasthan
----Respondent
(2) D.B. Criminal Appeal No. 745 / 2012
1. Subhash @ Bholu s/o Rameshwar, by caste Dhanak, resident
of Kabrel, P.S. Anandpur Mandi, Haryana
2. Balraj @ Chhago s/o Dayal Singh, by caste Dhanak, resident
of Kabrel, P.S. Anandpur Mandi, Haryana
(Lodged in Central Jail, Sri Ganganagar)
----Appellants
Versus
State of Rajasthan
----Respondent
(2 of 33)
[ CRLA-746/2012]
_____________________________________________________
For Appellant(s) : Mr. J.D.S.Bhati for accused Sanjay and Balraj
Mr. Kuldeep Sharma for accused Somveer
Mr. Pradeep Shah with Mr. M.S.Borawat for
accused Hansraj
Mr. K.R.Bhati for accused Subhash
For Respondent(s) : Mr. Mr. C.S.Ojha, Public Prosecutor
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR Judgment Per Hon'ble Mr.Sangeet Lodha,J.
29th May, 2018
1. These appeals are directed against judgment dated 25.4.12 passed by the Additional Sessions Judge No.2, Sri Ganganagar, whereby the appellants Sanjay @ Mahendra, Somveer Singh, Hansraj @ Doctor, Subhash @ Bholu and Balraj @ Chhago were convicted for offences under Sections 302/149, 148/149, 449 & 380 IPC and sentenced as under:
Section 302/149 IPC Imprisonment for life and a fine of Rs.5000/- each; in default of payment of fine to further undergo six months simple imprisonment.
Section 148/149 IPC Rigorous Imprisonment for three years and a fine of Rs.200/- each; in default of payment of fine to further undergo (3 of 33) [ CRLA-746/2012] seven days simple imprisonment.
Section 449 IPC Rigorous Imprisonment for ten years and a fine of Rs.1000/-
each; in default of payment of fine to further undergo one month simple imprisonment.
Section 380 IPC Rigorous Imprisonment for seven years and a fine of Rs.500/- each; in default of payment of fine to further undergo 15 days simple imprisonment.
The sentences were directed to run concurrently.
2. The prosecution story in nutshell is that on 23.3.09 at 11.30 A.M., the complainant P.W.1-Jaskaran Singh submitted a written report (Ex.P/1) to SHO, Police Station, Sadulsahar, stating therein that he was residing in Dhani of Hardeep Singh in Chak 11 KRW and cultivating 18 bighas land of Hardeep Singh on contract basis.
On the said agriculture field, Hardeep Singh had two houses, out of which in one house, complainant resided with his family and in another house, which is located nearby the road, Hardeep Singh and his wife Kuldeep Kaur were residing. On 19.3.09, Kuldeep Kaur went to Ludhiana for attending a marriage and therefore, Hardeep Singh being alone at home, the complainant used to serve the meal to him. Hardeep Singh used to drink liquor daily in the evening. On 22.3.09, at 7.30 P.M., Jaskaran Singh served the meal to Hardeep Singh. After half an hour, Hardeep Singh having taken his meal, switched off the light. Around 9 P.M., when (4 of 33) [ CRLA-746/2012] Hardeep Singh again switched on the light, Complainant- Jaskaran Singh went to see him. He saw one man going inside from the main gate, who left the main gate opened. Jaskaran Singh closed the gate and saw that 3-4 persons were present inside and were drinking liquor, serving each other and were insisting Hardeep Singh to consume more liquor. Jaskaran Singh stayed there for 5- 10 seconds but didn't go inside the room, returned back to his home and went to sleep. Next morning, around 7 A.M., when Jaskaran Singh went to serve milk to Hardeep Singh, he saw a rope was tightened around Hardeep Singh's neck and blood was oozing out from the chest. The colour T.V. installed in the room was found missing. According to the complainant- Jaskaran Singh, somebody killed Hardeep Singh and taken away T.V. and other goods in the house were scattered here and there.
3. On the basis of the written report (Ex.P/1), the police registered the FIR (Ex.P/44) and the investigation commenced.
4. During the investigation, after inquest proceedings, the dead body of Hardeep Singh was subjected to autopsy by the Medical Board consisting of Dr. Mahesh Gupta, P.W.5-Dr. Chandra Mohan and Dr. Darshan Singh. From the place of occurrence, blood stained quilt cover & bed sheet, cigarette and matchstick were seized vide Ex.P/4 & Ex/P/5. Chance prints were lifted from 5 glasses and a Bagpiper liquor bottle vide Ex.P/6. The rope tightened on the neck of deceased Hardeep Singh was seized vide Ex.P/7. Blood stained clothes of deceased Hardeep Singh were seized vide Ex.P/8. The recoveries of various articles including (5 of 33) [ CRLA-746/2012] stolen articles were effected at the instance of accused persons. Blood stained articles were sent for examination to the Forensic Science Laboratory (FSL) and the FSL report (Ex.P/68) was obtained. The specimen finger prints of the appellants were obtained, which were compared to the chance prints on the glasses and bottle recovered as aforesaid and the report (Ex.P/69) was obtained from the Finger Prints Bureau, Rajasthan, Jaipur.
5. After completion of the investigation, the police filed charge sheet against the appellants before the Judicial Magistrate, Sadulsahar for offences under Sections 302, 449, 450, 380, 147, 148 read with Section 149 and 120B IPC. After taking cognizance, the matter was committed to Session Judge, Sri Ganganagar, which was later transferred for trial to the court of Additional Session Judge No.2, Sri Ganganagar. The trial Judge framed the charges against the appellants for offences under Sections 148, 449, 380 & 302/149 IPC. The appellants denied the charges and claimed trial.
6. During the trial, the prosecution in support of its case examined as many as 23 witnesses (PW 1 to PW 23) and produced the documentary evidence Ex.P/1 to Ex. P/104. The accused appellants were examined under Section 313 Cr.P.C. wherein, they denied their involvement in the commission of crime. No oral evidence was led on the behalf of the defence, however, the statements of P.W.1-Jaskaran Singh, P.W.10-Jagdip Singh and P.W.21-Kuldeep Kaur recorded by the police under Section 161 Cr.P.C. were exhibited in evidence as Ex.D/1 to D/3 (6 of 33) [ CRLA-746/2012] respectively.
7. After due consideration of the rival submissions and the evidence on record, the learned trial Judge convicted and sentenced the appellants as indicated hereinabove. Hence, these appeals.
8. We have heard the learned counsel for the appellants and learned Public Prosecutor and carefully scanned the evidence adduced at the trial.
9. Mr. J.D.S.Bhati, learned counsel for the appellants Sanjay and Balraj contended that the there is no direct evidence against the appellants and the prosecution case is based on circumstantial evidence. The incriminating circumstances set out by the prosecution have not been established beyond reasonable doubt and therefore, the conviction of the accused appellants is not sustainable in the eyes of law. The inference of the guilt on the basis of circumstantial evidence can be justified only when all the incriminating facts and circumstances proved are found to be consistent only with the guilt of the accused, whereas, in the instant case on the basis of the evidence which has come on record, the chain of the circumstances is not established; no inference of guilt of the accused can be drawn and therefore, the accused appellants deserve to be acquitted of the charges. The Police Station was only 1 ½ km away from the place of occurrence, however, the FIR was lodged on the next day, the delay in lodging the FIR remains unexplained, which creates suspicion about the prosecution story. There is absolutely no (7 of 33) [ CRLA-746/2012] reason as to why P.W.1-Jaskaran Singh did not enter the room of deceased Hardeep Singh at the time when he had seen five persons consuming liquor with Hardeep Singh and were compelling him to take more liquor. P.W.1-Jaskaran Singh on the next day informed about the incident to his maternal uncle Raju and not to wife of the deceased P.W.21-Smt. Kuldeep Kaur, which also creates suspicion about the prosecution story. Learned counsel would submit that the relations of Hardeep Singh and Kuldeep Kaur were not cordial and on the date of incident, Kuldeep Kaur was not available at home, yet the police has not conducted any investigation in this regard whether P.W.21-Smt. Kuldeep Kaur had at all went to Ludhiana to attend the marriage ceremony. The recovery of six long hairs from the body of the deceased indicates towards the presence of a lady at the place of occurrence but no investigation was made by the police in this regard as well and thus, it appears that the prosecution has concealed the true story. P.W.21-Smt. Kuldeep Kaur had reached the place of occurrence around 11-12 A.M. on 23.3.09, however, her statement was recorded on 24.3.09 and there is no explanation for not recording her statement immediately. As per P.W.21-Smt. Kuldeep Kaur, she was informed about the incident by one Shri Avtar Singh on mobile but there is nothing on record as to who informed Avtar Singh about the incident but the prosecution has chosen not to examine Avtar Singh as witness. P.W.1-Jaskaran Singh had not given any description of the persons present in the room in the night with the deceased. The deceased (8 of 33) [ CRLA-746/2012] was about 68 years of age whereas, the appellants were of the age between 19 to 22 years only. The accused persons were not known to P.W.1-Jaskaran Singh, yet no test identification parade was conducted by the police and thus, the identification of the accused by P.W.1-Jaskaran Singh after long lapse of time also cannot be given any credence. The appellants were having no enmity with the deceased and the motive behind the crime is not established by the prosecution. It has come on record that deceased was consuming liquor with 3-4 persons but in the examination of viscera of the deceased Hardeep Singh, no liquor was found. As per prosecution, the rope was recovered from the place of occurrence whereas post mortem report shows that the rope was found around the neck of the deceased at the time of post mortem. The motbirs of recovery were not independent witnesses and therefore, their testimony cannot be relied upon. The recovery of various articles lying at the place already known to the police cannot be said to be recovered at the instance of the accused appellants and the verification of the place already known is also of no consequence. Lastly, learned counsel submitted that no full finger prints were found on the glasses and bottle and further as per P.W.23-Sita Ram, there was possibility of overlapping of finger prints and therefore, the evidence led by the prosecution regarding the finger prints cannot be considered to be reliable evidence.
10. Mr. Kuldeep Sharma, learned counsel appearing for the appellant Somveer while adopting the arguments advanced by (9 of 33) [ CRLA-746/2012] learned counsel appearing for appellants Sanjay and Balraj further submitted that the appellant Somveer was arrested on 29.3.09 at 2.15 P.M. vide Arrest Memo Ex.P/22, wherein except the clothes he was wearing, nothing was found in his possession. However, after five days on 3.4.09, the information was obtained from him under Section 27 of the Evidence Act regarding the utensils and the clothes which he was wearing at the time of incident and recovery of the same was effected vide Ex.P/53, which is apparently fake inasmuch as even the witness of recovery P.W.19- Tara Chand and P.W.20 -Dalip did not recognize appellant Somveer in the court. No list of stolen articles was given by the wife of the deceased. As per P.W.10-Jagdeep Singh four unknown persons were indulged in conversation near his shop who were having T.V., microwave ovan, pressure cooker, cauldron and one curtain. On inquiry being made, they left the goods and fled away towards the petrol pump. There was no reference of any fifth person. That apart, the persons were not known to P.W.10-Jagdeep Singh yet no test identification parade was conducted. Learned counsel submitted that the recovery of the documents dropped in flowing water of canal could not have been recovered from the place where the same are alleged to be dropped and thus, the recovery of the documents of the deceased cannot be relied upon. The recovery of the articles from the accused Somveer is shown to be made from village Kabrail, P.S. Sadulpur Mandi, District Hisar whereas the witnesses of recovery P.W.19-Tarachand is resident of village Bolawali, Tehsil Sangaria, District Hanumangarh and (10 of 33) [ CRLA-746/2012] P.W.20-Dalip is resident of Ward No.6, Sadulsahar, District Sri Ganganagar. Learned counsel would submit that there is no explanation as to why the recovery is not effected in presence of the witnesses of the same locality and thus, apparently, the recovery made is fake. The finger prints found tallied with the specimen finger prints of the appellant was only the print of thumb, which could not be considered reliable so as to connect the appellant Somveer with the commission of the crime. Learned counsel submitted that as a matter of fact the appellant has been implicated in the case only on the basis of the said finger prints and thus, he deserves to be acquitted.
11. Mr. Pradeep Shah, learned counsel appearing for the appellant Hansraj while adopting the arguments advanced as aforesaid by the counsels for co-convicts, contended that as per P.W.1-Jaskaran Singh he had not seen the accused appellants prior to the incident. He had not entered the room when the appellants were having drink with Hardeep Singh. No test identification parade was conducted and thus P.W.1-Jaskaran Singh identifying them in the court after lapse of about two years, is of no evidentary value. The evidence regarding finger prints is also wholly unreliable inasmuch as only the middle finger print of the appellant is alleged to have tallied with the chance print. Learned counsel would submit that the finger prints cannot be considered to be substantive evidence which can only be used to corroborate the substantive evidence on record and the same by itself cannot be made basis for conviction of the accused. In (11 of 33) [ CRLA-746/2012] support of the contention, learned counsel has relied upon a decision of the Supreme Court in the matter of 'Musheer Khan @ Badshah Khan & Anr. Vs. State of Madhya Pradesh' (Criminal Appeal 1180 of 2005 and other connected appeals decided on 28.1.10). That apart, learned counsel contended that the specimen finger prints of the accused appellant were not taken before the Magistrate and therefore, the same cannot be relied upon. The glasses and the bottle were not exhibited in evidence, which is yet another infirmity from which the prosecution case suffers and thus, the report of the Finger Print Bureau cannot be considered to be an incriminating circumstance against the appellant. In support of the contention, learned counsel has relied upon a Bench decision of this Court in the matter of 'Giriraj Vs. State of Rajasthan' RLW 2005 (4) WLC 763. Learned counsel submitted that a mobile cellphone was recovered at the instance of the appellant but it could not be proved or established that the same belonged to the deceased. The recovery of blood stained knife and the clothes of the deceased is not proved by examining independent motbir and the prosecution has failed to prove that the recovered utensils belonged to the deceased.
12. Mr. K.R.Bhati, learned counsel appearing on behalf of the appellant Subhash has adopted the arguments advanced by the learned counsels for the co-convicts.
13. On the other hand, learned Public Prosecutor submitted that the accused persons were seen in the company of the deceased on the day of incident by P.W.1-Jaskaran Singh. The accused (12 of 33) [ CRLA-746/2012] appellants were identified by the said witness in the court. The recovery of the weapon of offence and other articles at the instance of accused persons stand proved beyond reasonable doubt and further the chance prints on the glasses and bottle stood tallied with the specimen finger prints of the appellants. The list of articles stolen was produced by the wife of deceased P.W.21-Kuldeep Kaur which stands exhibited in evidence as Ex.P/12. The identification of the articles was made vide Ex.P/10. The stolen articles other than recovered under Section 102 Cr.P.C. were recovered at the instance of the accused appellants. As per the FSL report, blood stained knives recovered at the instance of accused Hansraj and accused Balraj were found stained with blood of group 'B' i.e. the blood group of the deceased, besides blood stained clothes recovered at the instance of the accused appellants were also found stained with blood of group 'B'. Accordingly, it is submitted by the learned Public Prosecutor that the chain of circumstances established on the basis of the evidence on record indicates towards the guilt of appellants and unerringly leads to the conclusion that within all human probablity, the offence has been committed by the appellants and none else and thus, the impugned judgment passed by the trial court convicting and sentencing the appellants for the charges proved, does not warrant any interference by this court.
14. We have considered the rival submissions and scanned the evidence on record thoroughly.
(13 of 33) [ CRLA-746/2012]
15. The autopsy of the dead body of Hardeep Singh was conducted by the Medical Board consisting of Dr. Mahesh Gupta, P.W.5-Dr. Chandra Mohan and Dr. Darshan Singh. As per the post mortem report (Ex.P/14), following ante mortem injuries were found on the person of the deceased Hardeep Singh:-
"1.Ligature mark encircling the neck. Two times by 5 layered cotton Rope 1cm broad & passing over the windpipe at the level above thyroid cartilage. Dilated abrasions about the margins of ligature on dissection subcutaneous tissues under the ligature mark. Echymised, haemorrhage dark colour present in strap muscle, in the sides of tissues & around the trachea, and in the wall of larynx.
2.Bruise 2 x 1 cm and 1x1 cm on front of lower part of neck right side near wind pipe. On dissection haemotoma present underneath.
Injuries on abdomen (1) Stab wound wedge shaped on left hypochondrium size 3 cm x 1 cm x deep to abdominal cavity wound is situated 11 cm away from midline 4 cm below costal margin lower margin undermined.
the left chest (2) Stab wound, wedge shaped on front of left chest wall, placed obliquely length 2 ½ x ½ cm 6 cm below nipple & 5 cm away from midline, deep to thoracic cavity. (3) Stab wound wedge shaped on front of Lt chest wall placed obliquely length 2 ½ x ½ cm x deep to thoracic cavity situated 4 cm away from left nipple.
(4) Stab wound transverse were placed on front of Lt chest wall just above nipple size 2 ½ x ½ cm x thoracic cavity deep. (5) Stab wound obliquely placed 3 cm away from midline on front of left chest wall size 2 ½ x ½ cm x cavity deep. (6) Stab wound transversely were placed -size 2 ½ x ½ cm x deep thoracic cavity 2 cm away of midline Lt side. (7) Incised wound 1 x ½ cm x skin deep on lateral wall Lt.
Chest.
Injuries on Right side chest wall:
(8) Stab wound 2 ½ x 1 cm x deep to thoracic cavity on front of Right thoracic wall 3 cm away from midline 4 cm below clavicle.
9. Stab wound 2 ½ x 1 cm x deep to thoracic cavity 4 cm from midline 4 cm below clavicle.
10. Stab wound 2 ½ cm x 1 cm x deep to thoracic cavity 2 (14 of 33) [ CRLA-746/2012] cm below nipple.
11. Stab wound 2 ½ x 1 cm x deep to thoracic cavity just near nipple.
On dissection of chest wall & abdomen following tracks established (1) Injury No.1 passing through peritoneal cavity, all muscle deep upto spleen to depth of 1 cm abdominal cavity blood.
(2) Injury No. two tract established on Lt. Anterior thoracic wall through 5th intercostal space, through middle lobe left lung to depth 4 cm.
(3) Injury no. three-tract through intercostal through upper lobe of lung to depth about 4 cm.
(4) Injury no. four-tract passes through 3 rd intercostal space, through upper lobe of lung to depth of 2 ½ cm. (5) Injury No. five-tract is established on left thoracic wall passes through intercostal space, through upper lobe to middle lobe to depth of 5 cm.
(6) Injury no. sixtract is established on left throcic wall passes through pericardium and wall of left ventricle upto cavity of left ventricle Clots in pericardial cavity present producing haemopericardium.
Injuries on right side chest wall-on dissection Injury no. eight & nine track passes through 2nd intercostal space through upper lobe of right lung upto 2 to 3 cm depth. Injuries No.10, 11 on Right thoracic wall tract passes through 5th intercostal space, through middle limb of right lung to depth 3 to 4 cm."
The cause of death was opined by the Medical Board to be shock and haemorahage due to injuries of spleen, heart, lungs and strangulation. Injuries no.1 to to 6 and 8-11 were sufficient to cause death. Injuries produced on neck due to strangulation were also sufficient to cause death.
16. The injuries found on the person of the deceased and cause of death, further stands confirmed by deposition of PW 5-Dr. (15 of 33) [ CRLA-746/2012] Chandra Mohan, who deposed in unequivocal terms that injury no.1 to 6 & 8 to 11 and the injuries caused on the neck by strangulation were sufficient to cause death in ordinary course of nature. Thus, looking at the nature of injuries and the medical evidence on record the death of Hardeep Singh was concededly homicidal in nature.
17. There was no eye witness of the incident and the prosecution case is founded on circumstantial evidence. The prosecution at the trial placed reliance on following incriminating circumstances so as to establish the guilt of the appellants:
(1) On the intervening night of 22.3.09 and 23.3.09 around 9-9.30 P.M., P.W.1-Jaskaran Singh had seen deceased Hardeep Singh in the company of 3-4 persons in his own residential house offering liquor to each other and the appellants herein present in the court were identified by P.W.1-Jaskaran Singh to be those persons.
(2) On 22.3.09 around 10 P.M., four unknown persons having a television, a microwave ovan, a pressure cooker, a cauldron and a curtain of light orange colour were seen indulged in conversation by P.W.10-Jagdip Singh, who on inquiry being made by P.W.10-
Jagdip Singh, ran towards the Petrol Pump while leaving the aforesaid articles on the spot, which were later seized by the police under Section 102 Cr.P.C.
(3) On 23.3.09 around 7 A.M. Hardeep Singh was found dead in his room by P.W.1-Jaskaran Singh and the various articles were lying scattered in the room and one television was found missing.
(16 of 33) [ CRLA-746/2012] (4) The articles seized by the police under Section 102 Cr.P.C. (Ex.P/23) were identified by P.W.21-Kuldeep Kaur, the wife of deceased Hardeep Singh, as the goods stolen from their house. (5) The articles stolen other than seized by the police vide Ex.P/23 were recovered on the basis of the information furnished by the accused appellants under Section 27 of Evidence Act. (6) The weapon of offence two blood stained knives were recovered; one at the instance of the accused Hansraj and another at the instance of accused Balraj.
(7) The blood stained clothes which the accused appellants were wearing at the time of occurrence of the incident were recovered at their instance.
(8) The knives and the clothes of the accused appellants on examination by FSL were found stained with blood of group 'B' i.e. the blood group of the deceased.
(9) Out of the chance prints lifted from five glasses, a Bagpiper bottle, T.V. stand and doors etc., some of the chance prints were found similar and identical with the specimen finger prints of appellants.
18. Before testing the evidence adduced at the trial, we consider it appropriate to refer to the cardinal principles laid down by the Hon'ble Supreme Court in various decisions governing the conviction of the accused on the basis of circumstantial evidence.
(17 of 33) [ CRLA-746/2012]
19. It is settled law that before conviction on proof of circumstantial evidence, the following triad tests must be satisfied:-
(i) that the circumstances from which an inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt;
(ii) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(iii) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him. (vide Mahmood vs. State of U.P., AIR 1976 SC, 69).
20. In "Sharad Birdhichand Sarda Vs. State of Maharashtra", AIR 1984 SC 1622, the Hon'ble Supreme Court laid down following five golden principles named as "panchsheel" of the proof of a case based on circumstantial evidence :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(18 of 33) [ CRLA-746/2012] (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
21. In 'Ramreddy Rajshekhanna Reddy vs. State of Andhra Pradesh', 2006(3) Supreme, 175, the Apex Court held as under:-
"26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence."
22. Thus, in the backdrop of principles settled as noticed above, we have to adjudge as to whether the circumstances on which the prosecution relies are established by clear and cogent evidence beyond the reasonable doubt and whether the cumulative effect of the circumstances said to be proved exclude every other hypothesis save the one that the appellants are guilty of the charges imputed.
23. As per the prosecution, deceased Hardeep Singh in intervening night of 22.3.09 and 23.3.09 around 9-9.30 P.M. was seen in the company of 3-4 persons by P.W.1-Jaskaran Singh. Admittedly, the persons who were seen in the company of (19 of 33) [ CRLA-746/2012] deceased Hardeep Singh were not known to P.W.1-Jaskaran Singh. As per deposition of P.W.1-Jaskaran Singh, on 22.3.09 at 7.30 P.M. he served the meal to Hardeep Singh. Having taken the meal, after half an hour, Hardeep Singh switched off the light. Around 9 P.M. when Hardeep Singh again switched on the light, P.W.1- Jaskaran Singh went to see him and saw one man going inside from the main gate who left open the main gate, which was closed by him and he saw that 3-4 persons were present inside the room, were drinking liquor, serving each other and were insisting Hardeep Singh to consume more liquor which Hardeep Singh declined. In examination-in-chief, he deposed to have heard their conversation for 10 minutes and thereafter went back, however, in cross-examination, he categorically deposed that he had not heard the conversation while standing outside the room for 10 minutes, rather he had heard the conversation only for ten seconds. He did not disclose as to what was the conversation going on between them. Further, in the cross examination, he categorically admitted that he had not seen the accused persons before the incident. Further, a perusal of the deposition of P.W.1- Jaskaran Singh reveals that he was not even definite about the number of the persons he had seen in the company of Hardeep Singh and therefore, he has deposed that he had seen 3-4 persons whereas as per the case set out by the prosecution, the number of persons indulged in commission of crime were five. Thus, apparently the deposition of P.W.1-Jaskaran Singh indicates that he had seen the persons present in the room only at the (20 of 33) [ CRLA-746/2012] fleeting glimpse. Since the accused appellants were previously not known to the witness P.W.1-Jaskaran Singh and he had seen them only at the fleeting glimpse, to test his memory based upon first impression, the police was required to conduct test identification parade after the arrest of the appellants at the earliest. It is to be noticed that even while identifying the appellants present in the court, P.W.1-Jaskaran Singh has deposed that four accused present in the court were the persons who were having liquor with the deceased Hardeep Singh but he did not specifically pointed out as to who were those four persons out of five persons present in the Court, whom he had seen in the company of deceased Hardeep Singh on the date of occurrence. In this view of the matter, in the considered opinion of this court, the identification of the appellants after lapse of about two years, for the first time in the Court by P.W.1-Jaskaran Singh, who were totally stranger to him and he had occasion to see them only at the fleeting glimpse, is of no evidentiary value.
24. Coming to the circumstances regarding articles alleged to have been left by the accused appellants near the shop of P.W.10- Jagdip Singh seized by the police under Section 102 Cr.P.C. vide Ex.P/23, as per deposition of P.W.10-Jagdip Singh, on 22.3.09 around 10 P.M., four unknown persons having one T.V., one microwave ovan, one pressure cooker, one cauldron and one orange colour curtain, were found indulged in conversation and on his making inquiry, they left the articles on the spot and ran away towards the Petrol Pump. It is pertinent to note that the said (21 of 33) [ CRLA-746/2012] witness had neither identified the appellants in the court nor the test identification parade was conducted. In the cross examination, he deposed that SHO had come to the spot, but at the same time, he categorically deposed that the goods seized were shown to him at the Police Station and he was asked to identify the goods. In this regard, yet another witness examined by the prosecution P.W.12-Babulal, who informed the police about the goods alleged to have been left by the appellants lying on the spot, deposed that he was informed by Jagdip Singh about the goods left by the thieves and some of them running away towards the railway line and some towards the Petrol Pump. He deposed that when the police reached the place, he had left for his home. In these circumstances, on the basis of the deposition of P.W.10- Jagdip Singh and P.W.12-Babulal, in no manner, it could be inferred that the persons who left the goods alleged to have been stolen, near the shop of P.W.10-Jagdip Singh, were the accused- appellants.
25. It is to be noticed that the aforesaid articles were seized by the police on 22.3.09 at 10.30 P.M. As per deposition of P.W.21- Kuldeep Kaur she was at Ludhiana and had reached her home on 23.3.09 in the afternoon around 2-3 P.M., however, no list of stolen articles was furnished by her to the police on the same day. As per Ex.P/10, on the next day i.e. on 24.3.09 at 11 A.M. the articles seized by the police under Section 102 Cr.P.C. were shown to P.W.1-Jaskaran Singh and P.W.21-Kuldeep Kaur at the Police Station, Sadulsahar. On the basis of the identification made by (22 of 33) [ CRLA-746/2012] them as aforesaid, the said articles seized under Section 102 Cr.P.C., were taken possession of the police in the case registered vide FIR No.73 dated 23.3.09. On the same day, P.W.21-Kuldeep Kaur produced a typed list of articles stolen from the house of Hardeep Singh wherein besides the articles seized by the police under Section 102 Cr.P.C., some more articles such as 8-10 steel utensils, certain documents belonging to deceased Hardeep Singh, one Airtel DTC Set up box and a samsung mobile phone containing BSNL sim no.94606 18345 were mentioned.
26. As per P.W.1-Jaskaran Singh, he had seen the accused persons in the company of deceased Hardeep Singh around 9- 9.30 A.M. As per P.W.10-Jagdip Singh he had seen the accused persons with the stolen articles around 10 P.M and thus, as per the prosecution, the total time consumed by the accused persons in having liquor with the deceased Hardeep Singh, causing his death, stealing the articles and reaching to the place near the shop of P.W.10-Jagdip Singh was not in any case more than an hour. Further, it is not the prosecution case that while running away from the place near the shop of P.W.10-Jagdip Singh,leaving the articles there, some of the articles they carried with them, however, the fact remains that apart from the weapons of offence, certain articles were recovered by the police from the possession of the appellants on the basis of the information furnished by them under Section 27 of Evidence Act.
27. As discussed herein above, the accused persons could not be identified, however, all the accused persons except Somveer were (23 of 33) [ CRLA-746/2012] arrested on 27.3.09 with time gap of 10-15 minutes from Kabrel (Haryana), a place distant from Sadulsahar without there being any evidence linking them with the commission of the crime, as deposed by Investigating Officer P.W.22-Rajendra Singh on the basis of information furnished by informer after interrogating them. Somveer was also arrested from Kabrel on 29.3.09. As per the prosecution, on 31.3.09 at 3.00 PM, the appellant Somveer furnished the information under Section 27 of the Evidence Act vide Ex.P-61 regarding a bag of documents alleged to have been lifted by him from the house of the deceased, being dropped in the canal at short distance from the house of the deceased. That apart, after a week since the date of arrest, on 3.4.09 between 4.10 AM to 4.50 AM, the appellants Hansraj, Balraj, Sanjay, Subhash and Somveer furnished the information under Section 27 of the Evidence Act regarding the knives and the stolen articles being kept concealed at their houses at Kabrel. As per deposition of P.W.22, on the information being furnished as aforesaid, on the same day, he along with the accused persons and motbirs Tarachand and Dalip proceeded to village Kabrel. As per recovery memo Ex.P/45, at the instance of appellant Hansraj, a knife wrapped in a polythene bag, and his clothes- a pant & a bushirt and passport & driving license of deceased were recovered from the boxes lying in his house on 3.4.09 at 11.15 A.M. At the instance of appellant Balraj, a knife wrapped in plastic bag, a pant and a shirt from a box lying in his house, were recovered at 12.10 P.M. vide Ex.P/47. At the instance of appellant Sanjay, vide (24 of 33) [ CRLA-746/2012] Ex.P/49, a pant, a shirt, two steel bowls and a steel plate bearing the name of Vikram Singh were recovered at 12.50 PM. At the instance of appellant Subhash, a pant, a shirt, four steel bowls and a small steel plate bearing the name of Vikram Singh were recovered vide Ex.P/51 at 1.40 PM and at the instance of appellant Somveer, a pant, a T-shirt, two steel plates and a steel bowl were recovered vide Ex.P/53 at 2.25 PM.
28. The recoveries are alleged to have been effected from the houses of the appellants situated at village Kabrel which as per deposition of P.W.19-Tarachand, is situated about 350 kilometers away from Sadulshahar and possibly they started from Sadulshahar at 7-8 AM and reached Kabrel at 12.00 Noon. It is pertinent to note that P.W.19-Tarachand on being asked about the description of the houses of the accused appellants, the place of recovery, he had no answer. Though, in the deposition he gave the details of the recoveries effected from the accused persons individually, but was not able to identify as to who amongst the accused persons present in the Court is Somveer, Subhash or Sanjay. As per the prosecution case, P.W.19-Tarachand had travelled along with the investigating officer accompanied by the accused persons for a reasonably long distance but, he was not in a position to recognize any of the accused persons present in the court. Moreover, there is absolutely no justification as to why the motbirs were taken by the police from Sadulsahar to Kabrel and why the local residents of Kabrel, independent witnesses, were not made the witness of recovery. Further, on the suggestion of the (25 of 33) [ CRLA-746/2012] defence, the said witness has accepted that he had been witness in one or two cases earlier which were not his own cases.
29. Similarly, P.W.20-Dalip, yet another witness of recoveries effected as aforesaid, though in his examination-in-chief gave details of the recoveries effected by various accused persons and specifically named them, in cross-examination, he deposed that amongst the accused persons present, he knows the name of only one accused and the names of remaining accused he did not remember. He deposed that at the time of recoveries, the houses of the accused were open and further that he had not entered the house. On being asked, he could not give the description of the houses from where the recoveries were effected. He deposed that last recovery was effected at 1.30-1.45 P.M.
30. Suffice it to say that there was absolutely no justification as to why the Investigating Officer had chosen to take P.W.19- Tarachand and P.W.20-Dalip with them and effected the recoveries in their presence as witnesses instead of independent witnesses of the locality concerned. Moreover, as discussed hereinabove, their deposition before the court as witnesses creates doubt about their actual presence at the time of recovery.
31. Coming to the articles recovered, as per the prosecution case the accused persons on 22.3.09, just after the incident around 10 P.M. left the stolen articles near the shop of P.W.10-Jagdip Singh and fled away. It is not the case of the prosecution that while running away from the place, any of the accused had taken with him some of the articles stolen. As already noticed above, the (26 of 33) [ CRLA-746/2012] articles seized by the police as aforesaid vide Ex.P/23 were shown to P.W.21-Kuldeep Kaur on 24.3.09 at 11 A.M. and on the same day she had furnished the list of the articles stolen, which includes a few more articles besides the articles already shown to her by the police. It is difficult to believe that the accused persons while leaving all the articles stolen on the spot as aforesaid, each accused had picked up a few articles such as utensils and/or the documents belonging to the deceased while fleeing away from the place. Moreover, the articles seized as aforesaid were straight away shown to the P.W.1-Jaskaran Singh and P.W.21-Kuldeep Kaur and no test identification parade was conducted.
32. A perusal of the memos of recovery Ex.P/45 and Ex.P/47, the weapon of offence knives were kept by each of the accused namely, Balraj and Hansraj wrapped in a polythene bag in boxes lying in their houses. Similarly, the apparels of the accused which they were wearing at the time of commission of the crime, after washing, were kept by each of them in a box or suitcase lying in their houses and were got recovered vide Ex.P/45, P/47, P/49, P/51 & P/53. The passport and driving license of the deceased were also got recovered by Hansraj from a box lying in his house vide Ex.P/45. In this regard, stereo typed memos of recovery prepared by the police are self explanatory.
33. Coming to the recovery of soil smeared documents of the deceased Hardeep Singh vide Ex.P/15, pursuant to the information furnished by accused Somveer under Section 27 of the Evidence Act vide Ex.P/61 on 31.3.09. It is really strange that (27 of 33) [ CRLA-746/2012] the documents alleged to have been thrown in flowing canal were recovered intact after 7 days from the place where the same were thrown.
34. Coming to the recovery of mobile phone from the possession of Hansraj at the time of his arrest vide Ex.P/18 on 27.3.09, it needs to be noticed that on 24.3.09, P.W.21-Kuldeep Kaur in her statement under Section 161 Cr.P.C. disclosed that her mobile phone was also stolen and that apart, in the list of stolen articles furnished vide Ex.P/12, there is mention of a mobile phone of Samsung company alongwith the BSNL SIM 94606-18345. As per deposition of P.W.21-Kuldeep Kaur, she had produced purchase bill of Samsung mobile set which is in the name of her grand son Mahiya. The bill produced is exhibited in evidence as Ex.P/55 wherein the model of the mobile is disclosed as Samsung L-170 and the IMEI No. 357507015554267. In the memo of arrest and search of appellant Hansraj (Ex.P/18),the IMEI number of the mobile phone recovered are the same as mentioned in Ex.P/55, however, the model number is mentioned as SGH 170 SSN- G170GSMH.
35. As per deposition of P.W.22-Rajendra Singh, the Investigating Officer, when the mobile was recovered, it was without SIM. However, the call details of the said mobile phone for the period from 1.3.09 to 28.3.09 were obtained twice, which were exhibited in evidence as Ex.P/59 and P/60. The mobile details contained in Ex.P/59 & P/60 is of SIM No.9728827619 issued by the Idea Cellular Company Ltd., Haryana. The name of (28 of 33) [ CRLA-746/2012] the SIM holder is not disclosed in the details furnished. However, the prosecution has examined the witness P.W.13-Ramphal, who has deposed that he had obtained an Idea mobile SIM freely distributed by the company, however, he did not remember that the SIM allotted to him bears No. 9728827619. He further deposed that he used to keep his mobile at home and his nephew Subhash had taken away the SIM from the mobile. According to the prosecution, the Samsung phone recovered was given by accused Hansraj to the accused Subhash, who used the mobile by inserting the SIM alleged to have been allotted to P.W.13- Ramphal. A perusal of Ex.P/59 & Ex.P/60 reveals that the call details were sought for the period from 1.3.09 to 28.3.09, however the detail furnished relates only to the period form 22.3.09 to 27.3.09 and the last entry relates to the call made on 27.3.09 at 1.26 P.M. Further, Ex.P/59 does not mention the IMEI number of the mobile phone used but the details subsequently obtained vide Ex.P/60, the IMEI number of the mobile phone is mentioned as 357507015554260 whereas, as per the prosecution, the IMEI number of the Samsung phone recovered was 357507015554267. That apart, in the call details (Ex.P/59), the IMSI number is mentioned as 40420085842505 whereas the details provided therein relate to IMSI number 4041200858425. There is no explanation as to why there is discrepancy in the call details furnished of the same mobile number for the same period vide Ex.P/59 & P/60. It is also pertinent to note that in both the call details provided vide Ex.P/59 & P/60, the IMEI number of the (29 of 33) [ CRLA-746/2012] Samsung mobile phone covered by purchase invoice (Ex.P/55) does not find mention. Further, the mobile details exhibited in evidence does not bear certification of the competent authority of the concerned Cellular company and the competent officer of the company has also not been examined before the court and thus, even otherwise, keeping in view, the provisions of Section 65B of the Evidence Act, the call details are not open to be relied upon. The matter does not end at this. There is no evidence as to how the mobile phone which was being used by Subhash till 27.3.09 at 1.26 P.M. came in possession of accused Hansraj and recovered from him on the same day at 2.15 P.M. In this view of the matter, the recovery of the Samsung mobile phone from Hansraj also becomes doubtful.
36. Yet another incriminating circumstance against the accused set out by the prosecution is that as per FSL report (Ex.P/68), the knives and clothes of the accused appellants were found stained with blood of group 'B'. As discussed hereinabove, the recovery at the instance of the appellants is found doubtful and therefore, the FSL report of the blood stains on the recovered articles is not of much relevance. But there is yet another aspect of the matter. As per Ex.P/45 & P/47, the knives were recovered at the instance of accused Hansraj and accused Balraj respectively, the blades of the knives recovered were cleared and there was no blood visible thereon. However, it is mentioned in the recovery memos that there was visibility of some blood on the iron nail fixed therein. But the fact remains that the clothes of the appellants recovered (30 of 33) [ CRLA-746/2012] as aforesaid had already been washed and thus, in absence of the blood thereon, the determination of the blood group in FSL examination becomes doubtful and cannot be relied upon. As a matter of fact, in view of this discrepancy crept in, to dispel the doubt, the prosecution should have got examined the expert of the FSL before the court.
37. Lastly coming to the incriminating circumstances regarding some of the chance prints lifted from five glasses, a Bagpiper bottle, TV stand etc. being found similar and identical with the specimen finger prints of appellants, admittedly, the specimen finger prints of the appellants were not taken by the police in presence of the Magistrate but then, as per provisions of Section 4 of the Identification of Prisoners Act, 1920 (for short "the Act of 1920"), the police officer is not precluded from taking measurements without obtaining the order from the Magistrate as contemplated under Section 5 of the Act of 1920 and therefore, in the considered opinion of this court, merely because, the order was not obtained by the police from Magistrate for taking specimen finger prints of the appellants and the same were taken by the police in absence of the Magistrate, the same cannot be discarded as unreliable. The reliance in this regard may be placed on a Bench decision of this court in 'Shambhoo Lal vs. State of Rajasthan" (D.B.Criminal Appeal No.491/11 & a connected appeal, decided on 23.5.18) wherein after due consideration of the provisions of Section 4 & 5 of the Act of 1920 and the various (31 of 33) [ CRLA-746/2012] decisions of the Hon'ble Supreme Court, this court observed as under:-
"55. Apparently, the provisions of Section 4 & 5 of the Act of 1920, operates in different fields. Section 4 of the Act of 1920 deals with taking of measurements etc. of non convicted person which mandates that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year and upwards shall if so required by the police allow his measurements to be taken in prescribed manner. The said provision does not envisage to obtain an order from a Magistrate or for measurements being taken in presence of the Magistrate. Whereas, Section 5 of the Act of 1920 deals with the power of the Magistrate to order a person to allow his measurements or photographs to be taken where he is satisfied that for the purposes of an investigation or the proceedings under the Code of Criminal Procedure, it is necessary to permit such measurement being taken.
56.Suffice it to say that Section 4 of the Act of 1920 mandates the person arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards to allow his measurements be taken in prescribed manner by a police officer if so required, and such power of the police has been recognized by the Hon'ble Supreme Court as well as noticed herein above. Moreover, in the instant case, where the police officer was allowed to take required finger prints inter-alia by the appellants herein, the provisions of Section 5 of the Act of 1920 or Section 311A of the Cr.P.C. inserted w.e.f. 23.6.06 are not attracted. To put it in other words, the provisions of Section 5 which empowers the Magistrate to direct any person arrested in connection with investigation or proceedings under Cr.P.C. to allow his measurements or photographs to be taken, in no manner precludes the police officer from taking the measurements exercising power under Section 4 of the Act of 1920 without obtaining the order from the Magistrate as contemplated under Section 5 of the Act of 1920. The words "prescribed manner" used in Section 4 of the Act of 1920 cannot be construed to mean that for taking measurements, the procedure as contemplated under Section 4 of the Act of 1920 has to be followed. But certainly, it is desirable to invoke the provisions of Section 5 of the Act of 1920 to exclude the possibility of any kind of suspicion regarding genuineness of the measurements taken."
(32 of 33) [ CRLA-746/2012]
38. However, as observed by the Hon'ble Supreme Court in Mohd. Aman & Anr. vs. State of Rajasthan, 1997(10) SCC 44, to dispel suspicion as to bona fides or the eliminate the possibility or fabrication of evidence it is eminently desirable that they are taken before or under the order of Magsitrate. In the instant case, no other incriminating circumstances having established against the appellants beyond reasonable doubt, the evidence of finger prints expert which is not considered as substantive evidence and could be used only to corroborate some substantive evidence, the same cannot be made basis for conviction of the accused appellants. (vide Musheer Khan @ Badshah Khan & Anr. vs. State of Madhya Pradesh, AIR 2010 SC 762)
39. In view of the discussion above, we are of the considered opinion that the prosecution has failed to establish the chain of incriminating circumstances beyond reasonable doubt consistent with the hypothesis of guilt of the appellants and thus, the appellants deserve to be acquitted of the charges giving benefits of doubt.
40. In the result, the appeals succeed, the same are hereby allowed. The conviction of accused appellants by the learned trial Judge for the offences under Sections 302/149, 148/149, 449 & 380 IPC is set aside. The appellants are acquitted of the aforesaid charges giving them benefit of doubt. The accused appellants who are behind the bars shall be released forthwith if not wanted in any other case. However, each of the appellant shall furnish a (33 of 33) [ CRLA-746/2012] personal bond in sum of Rs. 50,000/- and a surety of like amount to the satisfaction of the trial court in conformity with the provisions of Section 437A Cr.P.C.
(VIRENDRA KUMAR MATHUR)J. (SANGEET LODHA)J. Aditya/