Punjab-Haryana High Court
Komal And Ors vs State Of Haryana on 16 December, 2014
Crl. Appeal No.D-956-DB of 2003 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No.D-956-DB of 2003
Date of decision : 16.12.2014
Komal & Ors. .....Appellant(s)
Versus
State of Haryana ....Respondent(s)
CORAM : HON'BLE MR. JUSTICE M.JEYAPAUL
HON'BLE MR. JUSTICE DARSHAN SINGH
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. H.S. Bhullar, Advocate, Advocate for the appellants.
Mr. Dhruv Dayal, Deputy Advocate General,
Haryana for the respondent.
****
DARSHAN SINGH, J.
1. The present appeal has been preferred by the appellants, namely, Komal, Hari Shankar, Vimal and Vinod Kumar against the judgment of conviction dated 17.10.2003 vide which the appellants have been held guilty and convicted for the offences punishable under Sections 120-B, and 302 read with Section 120-B of the Indian Penal Code (in short 'the IPC') and appellant Komal has been further held guilty and convicted for the offence punishable under Sections 25 of the Arms Act 1959 and the order of sentence dated 21.10.2003 vide which all the four appellants have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5000/- each for the offence punishable under Section 302 IPC. In default of payment of PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 2 fine, they were further sentenced to undergo rigourous imprisonment for a period of three months. They were further sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- each for the offence punishable under Section 120-B IPC. In default of payment of fine, they were further ordered to undergo rigourous imprisonment for a period of one month. Appellant-Komal was further sentenced to undergo rigourous imprisonment for a period of three years and to pay a fine of Rs.1000/- for the offence punishable under Sections 25 of the Arms Act. In default of payment of fine, he was further sentenced to undergo rigourous imprisonment for a period of one month. All the sentences were ordered to run concurrently.
2. The sequence of the events giving rise to this prosecution can be summed up as under:
That on 8.8.2001, PW-14 ASI Ram Kumar was present on G.T Road, Tehsil Camp, Panipat in connection with patrolling. PW-8 complainant-Subhash met him and got recorded his statement Ex. PJ wherein he stated that his tenants are residing in the rooms of his house; that in the room towards the street, two real brother's namely accused Vimal Pandey and Komal Pandey were residing for the last four years; that a person named Gudai @ Virender Kumar Pandey of their village came and also started residing with them in the same room. The said room was not opened since 5 PM yesterday and when he came out of his house, foul smell was emitting from the said room. Some blood and liquid was also flowing out in the street PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 3 underneath the door of the room. Flies were sitting on the said material. He suspected that some dead body was stinking in the said room and gave the information to ASI Ram Kumar. ASI Ram Kumar accompanied him to the spot and got opened the said room after breaking open the lock. It was found that dead body of a person tied with ropes was lying there. The dead body was identified to be of Gudai son of Bal Kishan by one Ganga Ram son of Bhular resident of village Baijalpur. The complainant further stated that he has full confidence that a murder has been committed by his tenants, namely, Vimal and Komal who had ran away after committing the crime. On the statement of PW-8 Subhash Chander Ex.PJ, FIR PJ/1 was registered and investigation was started.
3. PW-14 ASI Ram Singh, carried out the inquest proceedings and prepared the inquest report Ex.PT. He sent the dead body to Civil Hospital Panipat for postmortem examination but the doctors of Civil Hospital, Panipat, referred the dead body to PGIMS, Rohtak. By then, the relatives of the deceased had also arrived and identified the dead body. The autopsy on the dead body was carried out. The doctor handed over the sealed parcel containing the belongings of the deceased which was taken into possession vide memo Ex.PX. The Investigating Officer had also lifted the blood stained earth from the place of occurrence on 8.8.2001 and kept the same in a sealed parcel which were taken into possession vide memo Ex. PX/1. He also prepared the rough site plan of the place of occurrence vide memo Ex.PY. He also carried out the search for the PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 4 accused and went to their native village. He arrested accused appellant Hari Shankar, who suffered the disclosure statement Ex.PA on interrogation disclosing about the conspiracy to eliminate Gudai with co-accused Komal and Vimal.
4. On 28.8.2001, PW-7 ASI Bhagwan Chand on receiving the telephonic information from the Naib Court to CJM, Panipat, about the surrender of accused appellant-Vimal and Komal, reached the Court complex and joined them in the investigation of the case in the presence of ASI Ram Kumar after taking permission from the Court. He interrogated accused Vimal who suffered the disclosure statement Ex.PC. Accused Komal also suffered disclosure statement Ex.PD. In pursuance of their disclosure statements, accused Vimal @ Hitender got recovered a shirt and pant of deceased Gudai which were kept in the sealed parcel and were taken into possession vide memo Ex.PO. Accused Komal also got recovered a knife type weapon stained with blood. The sketch of the weapon Ex.PQ was prepared and the same were taken into possession vide memo Ex.PQ/1 after preparing the sealed parcel thereof. On 29.8.2001, PW-13 Inspector Badan Singh, the then SHO Police Station City, Panipat, arrested appellants Vinod, Budh Ram and Raju (since acquitted), who have allegedly made the extrajudicial confession before PW-11 Harish Sharma, who produced them before the police. On completion of the investigation, the report under Section 173 Cr.P.C was presented in the Court.
5. The offences being exclusively triable by the Court of PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 5 Sessions, the case was committed to it by the Chief Judicial Magistrate, Panipat vide order dated 06.12.2001.
6. The present appellants and their co-accused Budh Ram and Raju (since acquitted) were chargesheeted for the offences punishable under Sections 120-B, 302/120-B IPC. Appellant Hari Shankar Pandey was also chargesheeted for the offence punishable under Section 216 IPC and appellant Komal was also chargesheeted for the offence punishable under Section 25 of the Arms Act by the then learned Sessions Judge vide order dated 11.1.2002 to which they pleaded not guilty and claimed trial.
7. In order to substantiate its case, prosecution examined as many as 14 witnesses.
8. When examined under Section 313 Cr.P.C, the appellants pleaded false implication.
9. Appellant Vimal tendered into evidence copy of report Ex.DA, copy of the order passed by the District Magistrate, Gonda Ex.DB, copy of the judgment Ex.DC and copy of FIR Ex.DD, in the defence evidence.
10. On appreciating the evidence on record and contentions raised by the learned counsel for the parties, the learned trial Court held guilty and convicted all the four appellants for the offences punishable under Sections 120-B and 302/120-B IPC. Appellant Komal was also held guilty and convicted under Section 25 of the Arms Act. Accused Raju Mishra and Budh Ram were acquitted of all the charges. Appellant-Hari Shankar was also acquitted of the PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 6 charges under Section 216 IPC. The appellants were awarded the sentence as mentioned in the upper part of the judgment.
11. Aggrieved with the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred.
12. We have heard Sh. H.S. Bhullar, Advocate, learned counsel for the appellants, Sh. Dhruv Dayal, learned Deputy Advocate General for the State of Haryana and have meticulously examined the record of the case.
13. Initiating the arguments, learned counsel for the appellants contended that there is inordinate delay in lodging the FIR. PW-8 Subhash spotted the dead body lying in the room in the morning of 8.8.2001 but the FIR has been registered on 8.8.2001 at 6.40 p.m. There is no explanation for this delay. The same has been utilised to meet up the false story to implicate the appellants.
14. He further contended that there is no legal evidence to connect the appellants with the commission of the crime. It is not established that accused appellant Komal and Vimal were residing as tenants in the room in question. PW-8 Subhash Chander complainant, landlord, has categorically stated that accused Vimal and Komal are not the persons who had taken his room on rent. So, appellant Vimal and Komal are not connected with the room in question i.e the scene of crime.
15. He further contended that the documents produced in the defence evidence show that deceased Gudai was having the criminal background so, it is not expected that such a person will succumb to PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 7 the temptation of the accused appellants to come and live with them in order to seek employment particularly, when it is alleged that the parents of the deceased were murdered by the family members of appellants Komal and Vimal. Thus, the prosecution version is highly improbable.
16. He further contended that the prosecution has also not been able to establish the theory of last seen. PW-3 Sita Ram has not supported the prosecution version and was declared hostile. He has further falsified the prosecution version and stated that on 7.8.2001, he went inside the room and the room was lying open whereas, as per the prosecution version, the occurrence has taken place on the night intervening 6/7.8.2001 and thereafter, the room was found lying locked. This version of PW-3 Sita Ram has rendered the entire case of the prosecution doubtful.
17. He further contended that PW-11 Harish Sharma before whom the extrajudicial confession was alleged to have been made by accused Budh Ram, Vinod and Raju has also not supported the prosecution version at all.
18. He further contended that the recoveries have also been planted by the prosecution just to create the evidence against the appellants. No independent witness has been associated at the time of recording the disclosure statements of the accused and the recoveries.
19. He further contended that there is absolutely no evidence to establish any conspiracy having been hatched by appellant Hari PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 8 Shankar Pandey for the elimination of deceased Gudai. The accused also had no motive for the commission of the offence. No recovery has been effected from the possession of the accused appellants Hari Shankar and Vinod. So, their disclosure statements are not admissible in evidence. Thus, he pleaded that the conviction of the appellants have been wrongly recorded by the learned trial Court.
20. On the other hand, learned Deputy Advocate General for the State of Haryana contended that from the statement of PW-3 Sita Ram, it is established that deceased was living with appellants Komal, Vimal and Vinod in the room owned by PW-8 Subhash Chander. The dead body of Gudai deceased has been recovered from the said room having number of injuries. So, it was for the accused appellants to explain as to how deceased Gudai suffered the homicidal injuries. They also absconded from the spot after the commission of the offence by locking the room. The clothes of the deceased stained with the blood have been recovered from the possession of accused Vimal. The weapon of offence i.e knife was recovered from the possession of appellant Komal. The doctor has given the opinion that the injuries on the person of deceased were possible with the said weapon. He further contended that from the statement of PW-2 Gobind Ram, it is established that the accused have hatched the conspiracy to eliminate deceased Gudai. The accused also had a motive for the commission of offence due to old enmity. Thus, he pleaded that the conviction of the appellants PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 9 recorded by the trial Court is well founded.
21. We have duly considered the aforesaid contentions.
22. There is no direct evidence to establish the case of the prosecution and the same is based on the circumstantial evidence.
23. Hon'ble the Supreme Court in case Krishnan Vs. State (2009) 3 Supreme Court cases (Criminal) 1029 after taking into consideration large number of its earlier judgments laid down the following golden principles for the proof of the case on the basis of circumstantial evidence:
"1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
2) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
24. In the instant case also, the prosecution is relying upon certain incriminating circumstances against the accused-appellants PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 10 which can be summed up as under:
1. Accused Komal and Vimal residing in the room as tenants is disputed from where the dead body has been recovered.
2. The last seen theory and presumption under Section 106 of the Indian Evidence Act.
3. The recovery of the dead body from the room occupied by accused Komal and Vimal.
4. Medical evidence.
5. The recovery of the crime articles from the possession of accused Komal and Vimal.
6. The abscondance of the accused after the commission of the crime.
7. Motive.
25. (1) Accused Komal and Vimal residing in the room as tenants is disputed from where the dead body has been recovered:
No doubt PW-8 complainant-Subhash Chander, owner of the room and PW-9 Sanjay, his son, wherein the accused were residing, have turned hostile and have not supported the prosecution case. PW-3 Sita Ram, the star witness of the prosecution, has also not fully supported the prosecution case but mere this fact that these witnesses have turned hostile, is no ground to discard their testimonies. Hon'ble Supreme Court in case Veer Singh and others versus State of U.P. 2014 (1) RCR (Criminal) 863 has laid down that it is settled law that the testimony of the hostile witness need not PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 11 be discarded in toto and that portion of the testimony which supports the prosecution case can be taken into consideration.
26. In view of the aforesaid ratio of law, the statements of the aforesaid witnesses is not totally effaced from record and yet can be taken into consideration to the extent it supports the prosecution version.
27. PW-3 Sita Ram, has categorically stated that accused Komal and Vimal were residing in a rented room of PW-8 Subhash in Panipat and they belong to his village. Gudai deceased had also come from their village and was residing with the said two accused. PW-8 Subhash, the owner of the room though did not support the case of the prosecution on the point of the identity of his tenants, had however stated that he had rented out one of his room to two labourers called Bhaias. PW-9 Sanjay, the son of the landlord, has also categorically stated that about 5 years ago, two real brothers of some other State called Bhaias had started living in one of their room. He does not know their names.
28. From the statements of PW-8 Subhash, landlord, and PW-9 Sanjay, his son, it comes out that two persons of labour class belonging to the other State were residing in one of the room of their house however, they did not support the case of the prosecution about the identity of those persons/tenants. That gap has been supplied by PW-3 Sita Ram, the inhabitant of the village of the accused as well as the deceased. He has categorically deposed that both accused Komal and Vimal were living in a rented room of PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 12 Subhash (PW-8) in Panipat. Thus, it is established that accused Komal and Vimal were in occuptation of the room wherein the offence was committed and the dead body of deceased Gudai was recovered.
29. (2) The last seen theory and presumption under Section 106 of the Indian Evidence Act.
(3) The recovery of the dead body from the room occupied by accused Komal and Vimal.
(4) Medical evidence:
PW-3 Sita Ram has deposed that accused Komal and Vimal were residing in a rented room of Subhash PW-8 in Panipat. They belong to his village. Deceased Gudai had also come from their village and was residing with the said two accused. He further deposed that accused Vinod and another boy whose name he does not remember were also residing with Komal and Vimal accused. Gudai deceased had worked with him on 6.8.2001 and then he went to said rented room. On the next day i.e. 7.8.2001, when he enquired about Gudai, Komal accused told him that he had gone out of station. Their room was open at that time. He also went inside that room. Then on 8.8.2001 at about 7/8 P.M, he came to know that Gudai had been murdered. In the cross-examination by the learned Public Prosecutor, he admitted that on the night the murder of Gudai took place, accused Vinod, Komal and Vimal were with him in that room. He further admitted that on the next morning, he and Ganga Ram noticed that the said room was locked. In the cross-examination PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 13 by the learned defence counsel, he denied the suggestion that Gudai used to reside in a separate room in Panipat and not with Komal etc. rather he had stated that there was only one room with them.
30. This witness in addition to the accused Komal and Vimal has also deposed that accused Vinod was also present with the deceased on the night when the murder of Gudai took place but even as per the prosecution version, only accused Komal and Vimal, the real brothers were residing as tenants in the room owned by PW-8 Subhash. About the presence of Vinod in the said room on the night of occurrence, there is only the solitary statement of PW-3 Sita Ram who has also given the wavering statement and has not fully supported the prosecution version. He has also not mentioned at what time he had seen Vinod in that room along with the deceased, accused Komal and Vimal. This witness has also not mentioned as to what accused Vinod was doing when he spotted him in that room along with deceased Gudai and appellants Komal and Vimal. As accused Vinod was not ordinarily residing in that room, the sole wavering statement of PW-3 Sita Ram, without any corroborative evidence, cannot be relied upon to prove the presence of appellant-Vinod in the said room along with the deceased and appellants Komal and Vimal.
31. The case of appellants Komal and Vimal is entirely on different footing. As already mentioned, it comes out from the evidence on record that appellants Komal and Vimal were in occupation of the room in question in the house of PW-8 Subhash on PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 14 rent and were ordinarily residing therein, so, their presence in the said room is natural and free from any doubt. PW-3 Sita Ram has also categorically stated that deceased Gudai had also come from their village and was residing with accused Komal and Vimal in the said room. The recovery of the dead body from the said room further corroborates the statement of PW-3 Sita Ram that the deceased was present with accused Komal and Vimal in the said room on the night of occurrence.
32. There is enough evidence on record to establish that the dead body of Gudai has been recovered from the room which was in occupation of accused Komal and Vimal. PW-8 Subhash Chander, the landlord, has deposed that his daughter Veena told him that smell was coming out of that room. The room was found locked. The police arrived at the spot. The lock was broke open and the dead body was recovered. PW-9 Sanjay, the son of PW-8 Subhash-the landlord, has also corroborated his testimony that the room was locked from outside and the dead body was recovered from the said room. Then there is a statement of PW-14 ASI Ram Kumar, the initial Investigating Officer of the case. He also deposed about the recovery of the dead body of deceased Gudai from the room of Subhash. Even the inquest proceedings were carried out there and the recovery of dead body from the said room has been clearly shown in the inquest report Ex.PT. Thus, the aforesaid consistent evidence establishes the recovery of dead body of deceased Gudai from the room in the house of PW-8 Subhash which was in PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 15 occupation of accused appellants Komal and Vimal.
33. PW-12, Dr.P.K. Paliwal, Associate Professor, Department of Forensic Science, PGIMS, Rohtak, has conducted the postmortem examination on the dead body of Gudai. He found the following injuries on his person:
1. There was contusion over fore-head 2 cm above the glabbela and 4.5 cm in dia- meter echymosis was present under neath.
2. There was contusion over right knee medial aspect measuring 10 cm in dia meter with echymosis under neath.
3. There was a plastic wire in two plies tied near the neck.
The knot was fixed and in front. It was running transcersely over the lower part of trachea of section under neath tissues were ecchymosed. The body of hyoid bone was fractured.
4. There was a sharp cut over right side of the neck 3 cm below the mastoid 15 x 13 cm in size.
The transvers process and body was also cut alongwith the tissues and vessels. The upper part of trachea was also having a sharp cut on right side.
There was infiltration of blood in underlying tissues. All the long bones including medial ends of clavical were fused.
All the four thrid molars have erupted with moderate grinding effect.
Body of sternum was fused but not xiphoid and PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 16 manubrium."
34. As per his opinion, the cause of death was strangulation coupled with cut throat injuries on the neck which were ante mortem in nature and homicidal in manner. This witness has proved a copy of the postmortem report Ex.PS. Thus, as per the medical evidence, there were serious injuries on the person of the deceased. He has died as a result of strangulation coupled with cut throat injuries on his neck.
35. Deceased Gudai was lastly present in the room which was in the occupation of appellants Komal and Vimal. His dead body was recovered from that room after breaking open of the lock having homicidal fatal injuries. Once these facts are established, the last seen theory comes into play and it becomes the duty of the accused to explain under what circumstances deceased Gudai met with death.
36. In case Amit @ Ammu versus State of Maharashtra 2004 (1) RCR (Criminal) 563, Hon'ble the Supreme Court has laid down that once the last seen evidence is proved accused should explain how and in what circumstances the victim suffered the death or should own the liability for homicidal. There is no material on record to show that after the deceased was last seen by PW-3 Sita Ram in the company of the appellants, he had departed with their company. Moreover, as his dead body has been recovered from the room under the tenancy of appellants Komal and Vimal, it confirms that the deceased remained with these appellants on the night of PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 17 occurrence. There was no evidence that deceased departed with their company and they were required to furnish explanation about the fatal injuries on his person.
37. There is no dispute with the proposition of law that burden to establish the case beyond shadow of reasonable doubt is always on the prosecution and this burden never shifts. However, in certain cases, the explanation is needed from the side of the accused. One of that situation is the applicability of Section 106 of the Indian Evidence Act. This provision of law postulates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 106 of the Indian Evidence Act has been designed to deal with certain exceptional cases in which it would be impossible or at any rate, it is proportionately difficult for the prosecution to establish the facts which are especially within the knowledge of the accused and which should be proved by him without difficulty or inconvenience. Hon'ble Apex Court in case State of West Bengal versus Mir Mohammed Omar and others 2000(4) RCR (Criminal) 147 has laid down as under:
"The Pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as through it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule. On the other hand, if the traditional rule relating to burden of proof of the PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 18 prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
In this context we may profitably utilize the legal principle embodied in section 106 of the Evidence Act which reads as follows:
"When any fact is especially within the PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 19 knowledge of any person, the burden of proving that fact is upon him."
38. In the instant case, accused appellants Komal and Vimal have not led any evidence to show as to how and when deceased Gudai suffered the fatal injuries. In their statements under Section 313 Cr.P.C., they have pleaded simple false implication and have not come forward with any plausible explanation. Consequently, by applying the last seen theory and drawing the presumption under Section 106 of the Indian Evidence Act, there is no escape from the conclusion that accused Komal and Vimal were the murderers. To support this view, reference can also be made to cases Munish Mubar versus State of Haryana (2013) 1 SCC Criminal 52, Praveen Kumar versus State of Karnataka 2003 (4) crimes 358 (Supreme Court) and Nitin Parmar versus State of Uttarakhand 2014 Criminal Law Journal 984.
39. (5) Recovery of crime articles from the possession of accused Komal and Vimal:
From the statements of PW-4 ASI Daya Nand, PW14 ASI Ram Kumar and PW-7 SI Bhagwan Chand, the Investigating Officer of the case, it comes out that accused Vimal suffered the disclosure statement Ex.PC on 28.8.2001. In pursuance of the said disclosure statement, he got recovered a pant and shirt i.e. the clothes of the deceased on 30.8.2001 which were taken into possession vide memo Ex.PO. It is pertinent to mention that in the inquest report, it has been categorically mentioned that the pant and shirt of the PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 20 deceased were missing and only baniyan and underwear were present on the person of the dead body. These clothes were sent to the Forensic Science Laborary (FSL), Madhuban, Karnal for examination. The report of the FSL is Ex.PZ which shows the presence of the blood on the shirt and pant of the deceased recovered from the possession of the accused Vimal.
40. Similarly, accused Komal has also suffered disclosure statement Ex.PD on 28.8.2001 on being interrogated by PW-7 SI Bhagwan Chand in the presence of PW-4 ASI Daya Nand and PW- 14 ASI Ram Kumar and in pursuance of the said disclosure statement, he got recovered a knife on 30.8.2001. The same was taken into possession vide memo Ex.PQ/1. The said knife was also sent to the FSL for examination. The traces of the blood were also detected on the said knife.
41. There is no reason to disbelieve the recovery of the aforesaid articles from the possession of the appellants Komal and Vimal. Learned counsel for the appellants has not been able to point out any material contradiction in the statements of these witnesses. Mere official designation of these witnesses ipso facto is no ground to discard their testimonies. No material has been placed on record by the accused appellants to show that these official witnesses have any animus and motive to falsely implicate them in the present case or they were in any manner fabricated the evidence under the influence of the complainant party. Thus, the recovery of the blood stained clothes of the deceased from the PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 21 possession of accused Vimal and the knife having traces of blood taken from the possession of appellant Komal is established. From the statement of PW-12 Dr. P.K. Dhaliwal, it comes out that the knife recovered from Komal was produced before him to seek his opinion as to whether the injuries on the person of deceased was possible with that weapon or not. He has given his opinion Ex.PU that injuries No.1, 2 and 4 on the person of deceased Gudai can be caused by this type of weapon. So, knife recovered from accused Komal is proved to be the weapon of offence.
42. Accused Vimal and Komal have not given any explanation as to how these blood stained incriminating articles came in their possession. In case Pardeep Singh versus State of Rajasthan AIR 2004 Supreme Court 3781, the accused was last seen with the deceased. A blood stained knife and clothes were recovered from his possession. He has not given any explanation about the presence of the blood stains on the clothes. He only pleaded false implication. Hon'ble the Apex Court upheld his conviction. This authority is fully applicable to the facts of the present case. Thus, the recovery of the crime articles i.e. the blood stained clothes of the deceased and knife, the weapon of offence, from the possession of the accused appellants Vimal and Komal respectively is another strong incriminating circumstance against them.
43. (6) The abscondance of the accused after the commission of the crime:
The occurrence has taken place in the night intervening PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 22 6/7.8.2001, accused Vimal and Komal then arrested on 28.8.2001 i.e. after more than 21 days. PW-8 Subhash Chander, the landlord, has categorically deposed that his tenants had ran away and did not return. From the statements of PW-8 Subhash, PW-9 Sanjay and PW-14 ASI Ram Kumar also, it comes out that the room was found locked from outside and the accused were missing. Thus, it is established that after the commission of the crime, accused Komal and Vimal had absconded.
44. In case Rabindra Kumar Pal @ Dara Singh Versus Republic of India, 2011 (1) RCR (Criminal) 641, the Hon'ble Supreme Court has laid down that the abscondance of an accused after the commission of an offence is relevant as a conduct of the accused under Section 8 of the Evidence Act which is to be taken into consideration alongwith other evidence to prove his guilt. In case Shyamal Ghosh Versus State of West Bengal, AIR 2012 Supreme Court 3539 also the Hon'ble Apex Court has also held that absconding for a long period is a relevant consideration and points towards the guilt of the accused. Thus, the abscondance of the accused for a sufficient long period from his ordinary place of residence is another incriminating circumstance in the chain of circumstantial evidence.
45. (7) Motive:
The motive for the commission of the offence in this case is the old enmity in the family of the accused and deceased. PW-2 Gobind Ram, parental uncle of the deceased, has deposed PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 23 about the dispute with respect to wall and its settlement. Moreover, the motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. The motive is the emotion which implies the man to do a particular act. The prosecution cannot exactly establish the motive for the commission of offence in certain cases. To support this view, reference can be made to case Nathuni Yadav and others versus State of Bihar and another, AIR 1997 Supreme Court 1808. Thus, the motive in the present case appears to be the old enmity/dispute between the families of the accused and deceased.
46. However, in our opinion, the evidence to establish the charges beyond shadow of reasonable doubt against appellants Hari Shanker Pandey and Vinod Kumar is totally lacking. The evidence against accused appellant Hari Shanker Pandey is the statement of PW-2 Gobind Ram and his disclosure statement Ex.PA. Admittedly, no recovery has been effected on the basis of the disclosure statement of appellant accused Hari Shanker Pandey. Hence, the same is not admissible in evidence.
47. PW-2 Gobind Ram has simply stated that on 29.7.2001 accused Komal, Vinod and Vimal brought Gudai his nephew, to Panipat under a plan to kill him on the pretext of giving him job. Hari Shanker accused asked the said persons to take Gudai to Panipat on the pretext of providing job and to finish him there. In the cross-examination, he stated that Pehlad and Ayodhya Parshad had told him that accused Hari Shanker had asked the above noted PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 24 accused to take Gudai to Panipat. Meaning thereby, the deposition made by this witness was based on the information supplied to him by Pehlad and Ayodhya Parshad but both these witnesses have not been examined by the prosecution. In the absence of their statements, there is no evidence to establish that appellant Hari Shanker had hatched any conspiracy with appellants Komal, Vimal and Vinod to take Gudai to Panipat on the pretext of employment and then to kill him. So, there is no legal evidence on record to establish that any criminal conspiracy was hatched by appellant Hari Shanker Pandey with the other appellants for the commission of this offence.
48. As far as appellant Vinod is concerned, the prosecution has relied upon the statement of PW-3 Sita Ram on the point of the last seen. It was also alleged that he along with co-accused Budh Ram and Raju had made the extra judicial confession before PW-11 Harish Sharma. It is also alleged that he along with Budh Ram and Raju accused (since acquitted) have pointed out the place of occurrence.
49. The testimony of PW-3 Sita Ram with respect to the last seen of appellant-Vinod with deceased and appellants Komal and Vimal have already been discussed in detail and it has been found that the prosecution has not been able to establish the presence of appellant-Vinod at the place of occurrence along with deceased and co-accused Komal and Vimal. PW-11 Harish Sharma, before whom appellant Vinod along with co-accused Budh Ram and Raju is PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 25 alleged to have suffered the extra judicial confession has not supported the prosecution version at all and has categorically deposed that he does not know anything about this case. Accused Budh Ram, Vinod and Raju present in Court never came to him nor they confessed their guilt before him nor he produced them before the police. Thus, there is no evidence to show that accused Vinod has suffered any extra judicial confession before PW-11 Harish Sharma. The place of occurrence was already known to the Investigating Officer. Even the dead body was recovered from the place of occurrence itself. In these circumstances, pointing out of the place of occurrence by accused Vinod is also not admissible in evidence. No incriminating article was recovered from the possession of accused Vinod and Hari Shanker Pandey. So, their complicity in the commission of the present offence is not established beyond shadow of reasonable doubt.
50. No doubt there is some delay in lodging the FIR. It is the settled principle of law that mere delay in lodging the FIR cannot dislodge the prosecution case if the case of the prosecution is otherwise established from the evidence on record. In the instant case also, there is enough circumstantial evidence, discussed above, to prove the guilt of accused Komal and Vimal. Thus, mere delay in lodging the FIR is no ground to reject the prosecution version.
51. No doubt, from the documents placed on record by the accused in their defence, it comes out that deceased Gudai was PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 26 having a criminal background. Mere this fact that the deceased was a criminal does not grant any licence to appellants Komal and Vimal to commit his murder. The plea raised by the learned counsel for the appellants that such a person will not succumb the temptation of the accused has also no substance because sometimes the person has to act as per the compelling circumstances. The deceased might be in need of some employment to earn the livelihood. So, he might have fallen into the net of the appellants.
52. Thus, keeping in view our aforesaid discussion, it is established that deceased Gudai was present for the last time in the company of appellants Komal and Vimal in their rented room. The dead body of deceased Gudai having homicidal injuries was recovered from the said room which was found locked. The cause of death of deceased Gudai as per the medical evidence has been found to be strangulation coupled with cut throat injuries on the neck. Accused Komal and Vimal, the occupant of the said room, have not given any explanation as to how the dead body of Gudai came to be found in their room having homicidal injuries. The crime articles have also been recovered from their possession. They also remained absconded after the commission of the crime and they had also the motive for the commission of this offence. Thus, the chain of the circumstantial evidence is complete and firmly established against the accused appellants Komal and Vimal which clearly establishes that in all human probabilities, the murder of Gudai has been committed by them. All the aforesaid circumstances are totally PUSHPINDER SAINI 2014.12.24 14:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-956-DB of 2003 27 consistent with their guilt and inconsistent with their innocence. So, the conviction of appellants Komal and Vimal recorded by the learned trial Court is maintained however, appellants Hari Shanker Pandey and Vinod deserve the benefit of doubt and the charges against them are not established beyond shadow of reasonable doubt.
53. Consequently, the present appeal qua appellants Hari Shanker Pandey and Vinod is hereby allowed. Their conviction recorded by the learned trial Court and sentence awarded to them are hereby set aside and they stand acquitted of the charges. However, the appeal qua appellants Komal and Vimal has no merit and the same is hereby dismissed. The accused-appellants Komal and Vimal are on bail. Their bail stand cancelled. They shall surrender within 15 days from the date of this judgment before the learned Chief Judicial Magistrate, Panipat, who shall send them to jail to undergo the remaining part of their sentence. If, they fail to surrender, the learned Chief Judicial Magistrate, Panipat, shall take coercive steps to secure their presence and send them to jail to undergo the remaining part of the sentence.
( M. JEYAPAUL )
JUDGE
( DARSHAN SINGH )
December 16, 2014 JUDGE
ps
PUSHPINDER SAINI
2014.12.24 14:32
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High Court Chandigarh
Crl. Appeal No.D-956-DB of 2003 28
PUSHPINDER SAINI
2014.12.24 14:32
I attest to the accuracy and
integrity of this document
High Court Chandigarh