Punjab-Haryana High Court
Mukesh Kumar @ Sonu vs State Of Haryana on 27 January, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Naresh Kumar Sanghi
Criminal Appeal No. 387-DB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA,CHANDIGARH
Criminal Appeal No. 387-DB of 2007
Date of Decision: 27th January, 2012
Mukesh Kumar @ Sonu ..Appellant
Versus
State of Haryana ..Respondent
CORAM:HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR JUSTICE NARESH KUMAR SANGHI Present:Mr. B.S.Saroha, Advocate for the appellant.
Mr. S.S.Randhawa, Additional Advocate General, Haryana, for the respondent.
RAJIVE BHALLA, J The appellant has been convicted by the Additional Sessions Judge (I), Faridabad vide judgment dated 26.3.2007 and 28.3.2007 under sections 302, 365 and 201 of the Indian Penal Code and sentence dated 28.3.2007. The appellant has been sentenced as follows: (a) rigorous imprisonment for life and to pay a fine of Rs.5,000/- under section 302 of the Indian Penal Code. In default thereof, the appellant has been ordered to undergo further rigorous imprisonment for six months; (b) under section 365 Indian Penal Code, to rigorous imprisonment for three years along with a fine of Rs.1000/- and in default to Criminal Appeal No. 387-DB of 2007 2 further undergo rigorous imprisonment for six months; and ( c ) under section 201 of the Indian Penal Code, to rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default to further undergo rigorous imprisonment for six months.
All sentences have been ordered to run concurrently. Smt. Mamta lodged a written complaint dated 9.2.2006, Ex. PA, with the Senior Superintendent of Police, Faridabad that her husband, Pappan, is a driver on truck no. HR 38G 8633. After loading the truck, Pappan and Mukesh, a conductor, left to deliver goods, but her husband has not returned. She made enquiries, from the owner of the truck, and was informed that he has received a message on 9.1.2006 that the truck is lying abandoned near Chalis Gaon, (Maharashtra) and both Pappan and Mukesh Kumar @ Sonu are missing. She was also informed that an application was lodged with the concerned police station giving the description of Pappan. She further stated that she and her family members made enquiries from relatives but have not been able to find Pappan. Her brother-in- law told her two days ago that he saw Mukesh Kumar @ Sonu roaming around and when he asked Mukesh Kumar, he refused to divulge any information.
The complaint was received at the Police Post, Sector 16, Faridabad on 19.2.2006 at 6.00 P.M. And vide endorsement Exs. PA/2 and 3. Ram Kishan, ASI, forwarded the complaint to Criminal Appeal No. 387-DB of 2007 3 Police Station Central Faridabad for registration of a case Ex. P3, FIR No. 79 dated 19.2.2006 was registered under section 365 IPC, at Police Station Central Faridabad at 6.20 P.M. ASI Ram Kishan, PW 6, commenced investigation and recorded the statements of PW 3 Sushil Kumar, a Clerk in Transway Cargo Lifters and PW 5 Bhagwan Dass, father of the deceased. The appellant was arrested on 20.2.2006, produced before the Ilaqa Magistrate on 21.2.2006 and remanded to police custody. The appellant was interrogated on 21.2.2006 and suffered a disclosure statement, Ex.PB, that he and his co- accused Raju (since declared a proclaimed offender) strangulated Pappan with a rope and threw his dead body into the ravines as he refused to make their payment. The disclosure statement is witnessed by PW 2 Constable Vijay Kumar and ASI Ram Kishan PW 6. On 24.2.2006 the appellant and the police party left for Chalis Gaon, (Maharashtra). The appellant pointed out the place where they had murdered Pappan and the place where they had thrown his dead body and demarcated these places, vide Ex. PE, witnessed by PW 5 Bhagwan Dass and ASI Ram Kishan PW 6. The dead body of Pappan recovered from a ravine below the highway. An inquest report, Ex. PG, was prepared at the spot. A rough site plan, Ex. PH, depicting the place of recovery of the dead body was prepared by ASI Ram Kishan with marginal notes. A spot panchnama of the place of recovery of the dead body was prepared. A request for post Criminal Appeal No. 387-DB of 2007 4 mortem, Ex. PG/1, was sent to the hospital. After post mortem at the spot, the dead body was handed over to family members of the deceased. Bhagwan Dass and Hukam Singh identified the dead body as Pappan. The doctor handed over a packet containing clothes of the deceased, Exs.P1 to P3, vide memo Ex.PF. The clothes were converted into a sealed parcel and sealed with the seal 'RK'. The case property was deposited with the moharrir head constable. A photostat copy of the invoice of truck no. HR-38G/8633 was taken into possession on 2.1.2006 vide memo Ex. PJ. The salary certificate of Pappan, Ex. PC, was obtained from the office of M/s Transway Cargo Lifters (Regd.).
On completion of the investigation, a report was filed under section 173 of the Code of Criminal Procedure before the Area Magistrate and as facts disclosed the commission of offences triable by a court of Session, the learned Magistrate committed the case to the court of Session.
The Additional Sessions Judge (I), Faridabad, framed charges under sections 365/302 read with section 34 and section 201 of the Indian Penal Code, but as the appellant pleaded not guilty, directed the prosecution to lead evidence.
In order to prove its case, the prosecution has examined the following nine witnesses:
PW 1 Surinder Singh, ASI, proved the formal FIR, Ex. PA/1.Criminal Appeal No. 387-DB of 2007 5
PW 2 Constable Vijay Kumar, has deposed that the disclosure statement, Ex. PB, was suffered by Mukesh Kumar, appellant in his presence and proved his signatures on Ex. PB.
PW 3 Sushil Kumar, a clerk from the Transport Company, where the deceased and the appellant were allegedly employed, has deposed that Pappan was appointed as a driver on truck no. HR-38G/8633, while Mukesh Kumar was appointed as a co-driver. On 2.1.2006 Mukesh Kumar loaded refrigerators, in the truck, from Samsung Noida and on 3.1.2006 got the truck repaired from Tohid, mechanic. He has also deposed that Mukesh Kumar and Pappan left for Pune after taking their expenses from the company. On 9.1.2006 he received a telephone message, from their branch in Aurangabad (Maharashtra), that the truck is lying abandoned in the area of village Chalis Gaon (Maharashtra). A missing person's report relating to Pappan was lodged with the police of village Chalis Gaon (Maharashtra), but neither Pappan nor Mukesh Kumar could be traced. Mukesh Kumar was eventually spotted in Faridabad. He has also proved the salary certificate of Pappan, Ex.PC. This witness, however, did not produce any documentary evidence relating to the employment of Mukesh, with the Transport Company.
PW 4 Smt. Mamta, widow of Pappan, has deposed that her husband was appointed as a driver on truck no. HR- 38G/8633. Her husband and the appellant who was the second Criminal Appeal No. 387-DB of 2007 6 driver on the truck left for Pune on 4.1.2006. She has also deposed that her brother-in-law (Devar) told her that he had seen Mukesh Kumar driving a truck and though he made a signal asking Mukesh Kumar to stop,he did not stop the vehicle. He, thereafter met Mukesh Kumar, who told him that he did not know about the whereabouts of Pappan. He had gone to answer the call of nature and after he returned, he could not find Pappan PW 5 Bhagwan Dass, father of the deceased, is a witness to the recovery of the dead body and identified the dead body. In his cross-examination, he admitted that he identified the dead body from the pants, lying by the side of the body.
PW 6 Ram Kishan, ASI, the Investigating Officer, has deposed with respect to the arrest of the appellant, the disclosure statement, the recovery of the dead body, its identification by Bhagwan Dass and Hukam Singh, the inquest report, the post mortem and the other evidence collected during investigation. During his cross-examination, he admitted that the appellant had made an earlier disclosure statement on 20.2.2006 that after murdering Pappan, he had put his dead body in the truck. He also admitted that he has not collected the salary certificate of the deceased and that the place of the murder is not mentioned in the site plan Ex. PA.
PW 7 Bhupender Sharma photographed the dead Criminal Appeal No. 387-DB of 2007 7 body, at the place of recovery and proved photographs Exs. P4 to P11.
PW 8 Hukam Singh son of Shri Gajraj Singh, an autorikshaw driver, has deposed that the appellant was interrogated by the police and in his presence suffered a disclosure statement, admitting that he had murdered Pappan and disposed of his dead body. He was present during the recovery of the dead body and identified the dead body as Pappan had, in cross-examination, admitted that the dead body was identified from the pant.
PW 9 Dr. Bapu Pandit Baviskar, conducted the postmortem on the dead body and deposed that there were ligature marks all around the neck. He opined that the cause of death is strangulation; duration between death and postmortem is more than seven days; proved the post mortem report, Ex.PK; the inquest report Ex. PK/1 and police request for conducting post mortem Ex.PK/2. During his cross-examination, he admitted that the dead body was in a decomposed state and was not easily identifiable.
After conclusion of prosecution evidence, the incriminating circumstances, were put to the appellant. He denied the allegations and pleaded his innocence. The appellant, however, did not lead any evidence in defence.
The learned Additional Sessions Judge (I), Faridabad, considered the evidence on record and convicted and Criminal Appeal No. 387-DB of 2007 8 sentenced the appellant under sections 365/302 and 201 of the Indian Penal Code.
Counsel for the appellant submits that though Pappan is alleged to have left Faridabad on 3.1.2006, and was reported missing a day or two days later, the FIR was lodged only on 19.2.2006. The prosecution has not come forward with any explanation for this delay of one and half months. The appellant has been convicted primarily on the evidence that he was last seen with the deceased, his alleged confession, his disclosure statement, his pointing out the place where Pappan was murdered, his pointing out the place where his body was disposed of, recovery of the dead body and its identification. The evidence of last seen is based on the deposition of PW 3 Sushil Kumar, a clerk in the Transport Company. Sushil Kumar has deposed that Pappan was the driver and the appellant was his co-driver. The appellant loaded the truck with refrigerators from Samsung Company in Noida, got the truck repaired, and left with Pappan after taking advance from the company. Sushil Kumar has proved, Ex.PC, salary certificate of Pappan, but has not produced any appointment letter, salary certificate or any other record to prove that the appellant was working with the Transport Company. The prosecution has miserably failed to produce any evidence, apart from the oral statements of PW 3, to prove that the appellant was employed by the company as a co-driver on truck no. HR-38G/8633. PW 3 Sushil Kumar has Criminal Appeal No. 387-DB of 2007 9 also deposed that the appellant got the truck repaired, from Tohid, a mechanic, at Faridabad. The prosecution has not examined Tohid to prove this fact. Even if, it is presumed that the appellant was travelling in the truck with Pappan, this alone does not raise an inference of murder, much less against the appellant. The prosecution story that the appellant was Pappan's co-driver is falsified by the fact that the missing person's report, Ex.PD, recorded with the police at Chalis Gaon (Maharashtra) does not refer to the appellant's name. The prosecution has not explained this material flaw but the trial court has, of its own, furnished an explanation. It is further submitted that the post mortem report, the photographs of the dead body, the deposition of the doctor and other witnesses, including the father of the deceased and the evidence on record proves that it was not possible to identify the dead body. The dead body was identified by Pappan's father, Bhagwan Dass, PW6, and Hukam Singh, PW 8, from a pair of pants lying by the side of the dead body. A perusal of the photographs clearly reveals that the police recovered skeletal remains of a dead body. In the absence of any firm evidence that the skeletal remains, so recovered from the gorge, were of Pappan, the appellant should have been acquitted. The prosecution, in order to effect a positive identification, should have sent the skeletal remains for a DNA Test. The absence of a DNA test, and any other positive evidence about the identity of dead Criminal Appeal No. 387-DB of 2007 10 body, does not establish the prosecution case. It is also argued that identification of the dead body by a pant, has not been put to the appellant in his statement recorded under section 313 of the Code of Criminal Procedure, thereby leading to serious prejudice and rendering his conviction and sentence, null and void. It is also pointed out that the police has not produced the first disclosure statement, admittedly, suffered on 20.2.2006. The site plan does not demarcate the place where the murder was committed.
Counsel for the State of Haryana, submits that as the appellant was travelling with Pappan and identified the places where he and his co-accused murdered Pappan and threw his dead body, the prosecution has been able to prove its case. The appellant was last seen with the deceased at Noida and at Ballabgarh, thereby clearly establishing his presence on the truck with Pappan. The depositions of prosecution witnesses that the appellant accompanied Pappan on the truck, are clear, cogent and have been rightly believed by the trial court. The deposition of the Clerk from the transport company establishes that the appellant left with Pappan as his co-driver/cleaner. The disclosure statement suffered by the appellant, pursuant whereto, he pointed out the place where he had thrown the dead body of Pappan, clearly establishes the truth of the prosecution story. It is argued that as the dead body was identified by Pappan's father, the prosecution has successfully established Criminal Appeal No. 387-DB of 2007 11 the identity of the dead body.
We have heard counsel for the parties, perused the record and considered the judgment and order passed by the trial court.
The prosecution story, in brief, is that the appellant was working as a co-driver with Pappan deceased, on truck no. HR- 38G/8633 On 2.1.2006 he loaded refrigerators in the truck from Samsung, Noida; got the truck repaired from a mechanic named Tohid and left for Pune, along with Pappan. On 9.1.2006 a message was received from the Transport Company's Branch office in Aurangabad (Maharashtra) that the truck is lying abandoned in Chalis Gaon, Maharashtra, the driver is missing and they have lodged a report, Ex. PD, with the police at village Chalis Gaon in Maharashtra. A month and ten days later Mamta wife of Pappan lodged a report with the police that Mukesh has been seen in Faridabad. Mukesh Kumar was arrested by the police. He suffered two disclosure statements, one that has not been produced and the other, Ex.PB, on 21.1.2006, to the effect that he and his co-accused Raju (since declared a proclaimed offender) strangulated Pappan with a rope and threw his body into a gorge. On 24.2.2006 the appellant led the police party, in the presence of Bhagwan Dass and father of Pappan, Hukam Singh, to the place, where they murdered Pappan and the place where they threw the dead body. A dead body was found lying at the spot. The proceedings of recovery of the dead body are Criminal Appeal No. 387-DB of 2007 12 recorded in Ex. PE. A photographer was summoned to the spot. An inquest report, Ex. PG, was prepared. The post mortem was conducted by PW 9 Doctor Bapu Pandit Baviskar, at the spot. Dr. Bapu Pandit Baviskar has deposed that there was a ligature mark all around the neck and opined that the cause of death is strangulation. The duration between death and post mortem is more than 07 days. During his cross-examination, Doctor Bapu Pandit Baviskar, admitted that the dead body was in a decomposed state and was not easily identifiable. The dead body was identified by PW 5 Bhagwan Dass, father of the deceased, and Hukam Singh, PW8.
The prosecution relies upon the disclosure statement, Ex.PB, the post mortem report setting out the cause of death, the photographs, Exs. P4 to P11, the deposition of PW 3 Sushil Kumar, a Clerk from the Transport Company, who, allegedly, last saw the appellant leaving with Pappan on truck no. HR- 38G/8633, the identification of the dead body by Bhagwan Dass, PW 5, father of the deceased, and PW 8 Hukam Singh and the statement of Mamta, PW 4, widow of the deceased. The learned trial court has accepted this evidence as sufficient to prove and hold that appellant murdered Pappan.
The case, as set up by the prosecution, is based upon circumstantial evidence, a task both onerous and difficult in view of the absence of any eye witness, any weapon of offence and the highly decomposed state of the body recovered by the Criminal Appeal No. 387-DB of 2007 13 police. We are conscious of the limitations of the police, in a case based upon circumstantial evidence but cannot, overlook fundamental flaws in prosecution evidence. A court must remind itself that at stake is the future of an accused and though accused of a ghastly crime, must be judged on the principle that it is for the prosecution to prove its case beyond a shadow of doubt.
The evidence adduced by the prosecution falls into the following categories: (a) the evidence of last seen based upon the deposition of PW 3 Sushil Kumar, a Clerk from the Transway Cargo Lifters, Faridabad; and PW 4 Smt. Mamta; (b) the disclosure statement, Ex.PB; ( c ) the recovery of the dead body at the behest of the appellant as recorded in the recovery memo, Ex.PE; (d) the identification of the dead body by Bhagwan Dass, father of the deceased, and Hukam Chand and (e) the medical evidence.
We would, at the outset, like to deal with the evidence of last seen, namely, the statements of PW 3 Sushil Kumar and PW 4 Mamta. Sushil Kumar PW3 is a Clerk working in Transway Cargo Lifters (Regd.), Faridabad. He has deposed that the appellant was employed as a co-driver on truck no. HR- 38G/8633, whereas Pappan was employed as the driver. He has proved Pappan's salary certificate, Ex. PC, thereby establishing that Pappan was employed as a driver, with the company on truck no. HE-38G/8633. He has also deposed that Criminal Appeal No. 387-DB of 2007 14 Mukesh Kumar loaded refrigerators on 2.1.2006 from Samsung, Noida; visited the office of the company on 3.1.2006 and got the truck repaired from Tohid, a mechanic, before he left with Pappan for Pune, PW 3 Sushil Kumar has also deposed that before leaving for Pune, the appellant and Pappan took their expenses from the company. PW 3 Sushil Kumar, while producing the salary certificate of Pappan and deposing that Mukesh Kumar was employed as a co-driver, has, surprisingly, failed to produce any evidence, much less a salary certificate or letter to prove that Mukesh Kumar was employed by the company as a co-driver. If employed as a co-driver, the record of the appellant's employment, would necessarily be available with the company but for reasons that have not been explained this record has not been produced. The duty to prove material facts lies upon the prosecution. Employment of the appellant as a co-driver is a material fact. The failure of PW 3 Sushil Kumar or the prosecution to produce any documentary evidence about the employment of the appellant with the company, in our considered opinion, casts a serious doubt on the prosecution version and upon the deposition of PW 3 Sushil Kumar. Another reason that persuades us to hold as above is that the missing person's report lodged by the company's office at Pune, does not refer to a co-driver, much less to Mukesh Kumar. The report, admittedly, records that Pappan, the driver of the truck, is missing. An explanation that the Pune office may Criminal Appeal No. 387-DB of 2007 15 not have been aware of the identity of the co-driver, is plausible but as Sushil Kumar, PW 3 has not produced any record that Mukesh Kumar was employed as a driver with the company, it raises a doubt as to the correctness of Sushil Kumar's deposition. Another significant fact is that PW 3 Sushil Kumar has deposed that the appellant got the truck repaired from Tohid, a mechanic, in the premises of the company. Tohid, a material witness, has not been produced, much less cited as a witness to corroborate the statement of Sushil Kumar. The other evidence of last seen is available in the cross-examination of PW 4 Mamta, widow of Pappan, who has stated that her husband left with Mukesh Kumar for Pune on 4.1.2006 at about 5.30 A.M. The statement made by Mamta, widow of the deceased, that Mukesh Kumar left with Pappan for Pune on truck no. HR 38G/8633 at about 5.30 A.M., on 4.1.2006 contradicts the deposition of PW 3 Sushil Kumar, who has deposed that Pappan and Mukesh Kumar left for Pune on 3.1.2006. No other witness has come forward to depose that he last saw Pappan with the appellant. We are, therefore, left with no option, but to hold that the evidence of last seen, adduced by the prosecution does not inspire confidence.
Another significant aspect of this case, is the identity of the dead body recovered from a gorge in village Chalis Gaon (Maharashtra). The dead body was, allegedly, pointed out by the Criminal Appeal No. 387-DB of 2007 16 appellant and identified by Bhagwan Dass, PW 5, father of the deceased, and Hukam Chand, PW 8.
As per the post mortem report and the inquest report, the dead body was in a highly decomposed state, as it had been lying in the gorge many days; the hair and eyes were missing; the mouth was open; identification marks were not visible, but strangulation marks, by a rope, were visible on the neck. The body revealed scratch marks on flesh and dried flesh. The post mortem was conducted at the spot, as the dead body could not be removed to a hospital. From the photographs of the dead body, Exs. P4 to P11, and as admitted by prosecution witnesses, it was difficult to identify the dead body by an ocular examination. Apart from a thin layer of skin, the body is a mere skeleton. The dead body, recovered from a gorge in village Chalis Gaon (Maharashtra) was in such a state of decomposition, that witnesses were unable to identify it from an ocular examination but identified it from a pair of pants lying by the side of the dead body, as admitted by the deceased's father and the other witnesses. Dr. Bapu Pandit Baviskar, PW9, who conducted the post mortem, has admitted that the dead body was in a decomposed state and was not easily identifiable. The identification of the dead body on the basis of a pant lying by its side, in our considered opinion, is insufficient to effect a positive identification of body. The apparel of a deceased may, in a given situation, be sufficient to Criminal Appeal No. 387-DB of 2007 17 identify a deceased but in this case, we are not satisfied about the mode of identification . The police should have forwarded the skeltal remains for a DNA Test, but as usual have failed to do so, relying instead on suspicion disclosure statements and shaky recoveries.
We are of the opinion that the evidence produced by the prosecution does not conclusively establish that the skeletal remains recovered from a gorge, are proved to be the remains of Pappan.
As a last resort, counsel for the State has submitted that as in his disclosure statement, the appellant had admitted the murder of Pappan, disposal of his body and as he pointed out the place of murder and got the dead body recovered, this is sufficient evidence to raise an inference about the identity of the dead body. A confession recorded in police custody is illegal and, therefore, inadmissible in evidence. The pointing out of the place where the dead body was disposed may have been sufficient to convict but for the failure of the prosecution, to effect a positive and complete identification of the skeltal remains. The absence of any DNA test, that was, available in the year 2006, points to the slip shod manner in which investigation has been conducted.
We would also like to make a reference to certain other important facts that have persuaded us to doubt the correctness of the prosecution version and hold that the case has not been Criminal Appeal No. 387-DB of 2007 18 established beyond a shadow of doubt. The prosecution has not been able to prove or establish any motive, though, it is alleged that in the disclosure statement, the appellant has stated that Raju, another co-driver, wanted to return, but Pappan refused to pay him and threatened him with severe consequences. The motive, if at all, to commit such a heinous crime, was with Raju ( since declared a proclaimed offender). The trial court has, however, made a reference to a motive, namely, the sale of the refrigerators. We have scanned the entire evidence with a great degree of care and do not find reference to any evidence that the appellant committed the murder of Pappan so as to steal and sell the refrigerators. Another fact that casts a doubt is the introduction of the third driver, Raju, who has been declared a proclaimed offender. It is the positive case of the prosecution that Pappan and the appellant left for Pune. PW 3 Sushil Kumar and PW 4 Smt. Mamta, witnesses of last seen, have not deposed about a third person or a third driver. The prosecution was, therefore, required to establish as to how this third driver Raju came to be employed on the truck, and assigned an equal role as the appellant. In addition, the Investigating Officer has admitted that the appellant suffered two disclosure statements, however, only one disclosure statement is forthcoming and the other has been produced. The Investigating Officer has tried to explain the non production by deposing that the appellant stated that after Criminal Appeal No. 387-DB of 2007 19 murdering Pappan, they had kept his body in the truck. The site plan, Ex. PA, does not record the place, where appellant and Raju, allegedly, strangulated the deceased. The identification of the dead body by a pant lying by its side, may have been accepted, but the fact that PW 8 Hukam Singh, who is not a relative, but is a mere acquaintance, has also identified the dead body from the pants lying by the side of dead body. The above referred facts, in our considered opinion, if read along with conclusions recorded in the preceding paragraphs, raise a doubt on the prosecution story sufficient to disbelieve the prosecution version.
We are, therefore, inclined to hold that the prosecution has not been able to prove its case beyond a shadow of doubt. As a consequence, the appeal is allowed; the judgment and the order passed by the Additional Sessions Judge (I), Faridabad, is set aside; the appellant is acquitted of the charges and he be set at liberty forthwith, if not required in any other case.
( RAJIVE BHALLA )
JUDGE
27th January, 2012 ( NARESH KUMAR SANGHI )
JUDGE
VK