Punjab-Haryana High Court
Sandeep @ Roba @ Sonu vs State Of Haryana on 5 July, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:087993-DB
CRA-D-814-DB-2006 (O&M) and other connected appeals
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Decided on:- 05.07.2024
(1) CRA-D-814-DB-2006 (O&M)
Sandeep @ Roba @ Sonu
....Appellant
Versus
State of Haryana
...Respondent
(2) CRA-D-692-DB-2006 (O&M)
Sandeep
....Appellant
Versus
State of Haryana
...Respondent
(3) CRA-D-126-DB-2016 (O&M)
Dhanna @ Dhanne
....Appellant
Versus
State of Haryana
...Respondent
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE AMARJOT BHATTI
Present: Mr. Vijender Dhankar, Advocate
for the appellant in CRA-D-814-DB-2006.
Mr. Varun Veer Chauhan, Advocate
for appellant(s) in CRA-D-692-DB-2006 &
CRA-D-126-DB-2016.
Mr. Svaneel Jaswal, Addl. A.G., Haryana.
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Neutral Citation No:=2024:PHHC:087993-DB
CRA-D-814-DB-2006 (O&M) and other connected appeals
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AMARJOT BHATTI, J.
1. All three appeals, CRA-D-814-DB-2006, CRA-D-692-DB- 2006 and CRA-D-126-DB-2016 as referred above arising out of two separate judgments and orders of sentence passed by learned Additional Sessions Judge, Sonepat pertaining to same FIR were taken up together with the consent of learned counsel for the appellants.
2. Appellants/convicts in CRA-D-814-DB-2006 and CRA-D- 692-DB-2006 namely Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej have filed their respective appeals against judgment of conviction dated 04.09.2006 and order of sentence dated 06.09.2006 passed by learned Additional Sessions Judge, Sonepat in Sessions Case bearing No.14 of 2005, title "State Vs. Mintu and others" vide which both Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej were sentenced as under :-
Name of Offence Sentence of Fine In default of Convict(s) U/s Imprisonment fine 1. Sandeep 302 read Both to undergo Rs. To undergo @ Roba @ with rigorous 5,000/- simple Sonu s/o Section 34 imprisonment for each imprisonment Hoshiar of IPC Life for three months Singh each 2. Sandeep s/o Angrej
3. Whereas, appellant-Dhanna @ Dhanne filed appeal i.e. CRA-D-126-DB-2016 against the judgment of conviction and order of sentence dated 21.12.2015 passed by learned Additional Sessions Judge, Sonepat in Sessions Case bearing No.1102 of 2014, title "State Vs. Dhanna @ Dhanne" vide which appellant-Dhanna @ Dhanne was 2 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -3- sentenced as under :-
Name of Offence Sentence of Fine In default of
Convict(s) U/s Imprisonment fine
Dhanna @ 302 read To undergo Rs. To undergo
Dhanne with rigorous 10,000/- rigorous
Section 34 imprisonment for imprisonment
of IPC Life for one year
4. Brief facts as per prosecution case are that on 07.10.2004, SI/SHO Mehar Singh along with other police officials was on patrol duty at Tihar Kalan Road, Kheri Dahiya turn where complainant Ravinder got his statement recorded. Complainant Ravinder stated that he was 13 years old and was studying in 9th class in Government School, Village Tihar Kalan. Mintu s/o Lehna resident of his village whereas Anil s/o Balbir @ Balle and Dhanna @ Dhanne residents of Gopalpur used to visit their house to call his brother Sandeep. His mother Savitri did not like her son Sandeep to accompany them. On inquiry, Sandeep disclosed to his mother that the aforesaid persons wanted him to join their company in committing loot etc. whereas Sandeep wanted to avoid their company. On 06.10.2004 at about 9:30 PM, Mintu, Anil and Dhanna @ Dhanne came to his house to call his brother Sandeep. His mother told them that Sandeep will not accompany them. Mintu told his mother that they were calling Sandeep for taking a cassette and thereafter they will leave him. On that day his brother Sandeep accompanied them and did not return home. In the morning, the complainant along with his mother was going to harvest Jawar crop in the fields of Azad and they found one person lying dead in the fields of Satpal resident of their village at some distance from the road. He along 3 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -4- with his mother found that it was dead body of his brother Sandeep. There were marks of injury on his face, head, neck and hands with sharp edged weapon. The complainant stated that Mintu, Anil and Dhanna @ Dhanne murdered his brother as they nourished grudge against his brother Sandeep for not joining their company. Complainant stated that he and his mother would disclose the involvement of Anil after making inquiry at their own level. Savitri was left near the dead body whereas the complainant was coming to lodge the report and the police party met on Tihar road of Kheri Dahiya turn. On the basis of this statement ruqa was sent to police station for registration of FIR under Section 302 read with Section 34 IPC. Accordingly, FIR was registered and special report was sent to the Illaqa Magistrate. The police party reached the spot and started investigation. The inquest report was prepared and the dead body was sent for post-mortem examination. Site plan of the place of occurrence was prepared, blood stained earth was lifted from the spot and was taken into police possession. One blood stained broken handle of sickle was also recovered from the spot and was taken into police possession.
5. During further investigation accused Mintu and Sandeep s/o Angrej were apprehended on 15.10.2004 and Sandeep @ Roba @ Sonu s/o Hoshiar Singh was apprehended on 11.12.2004 and their disclosure statements were recorded. In pursuance of their disclosure statements, recoveries were effected and on completion of investigation, challan was presented qua Mintu, Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej.
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6. All accused were supplied complete set of copies of challan report as provided under Section 207 of Cr.P.C. Since the offence under Section 302 IPC is exclusively triable by the Court of Sessions, learned Magistrate, Sonepat committed the case to the Court of learned Sessions Judge, Sonepat for trial vide commitment order dated 23.02.2005 qua accused Mintu, Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej.
7. Learned Additional Sessions Judge, Sonepat, after hearing arguments, framed charge-sheet against all the said accused. Accused Mintu, Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej were charge-sheeted for the commission of offence punishable under Section 302 read with Section 34 IPC, which was read over and explained to them in simple language to which they pleaded not guilty and claimed trial.
8. In order to prove the facts of the case, prosecution examined Jagdish, Halqa Patwari as PW-1, Ramesh as PW-2, Dr. Rajiv Sethi as PW-3, Satbir Singh, MHC as PW-4, Umesh as PW-5, ASI Inderpal as PW-6, EHC Jogender Singh as PW-7, HC Dharambir Singh as PW-8, Smt. Savitri as PW-9, Inspector Swatantra Singh as PW-10 and Ravinder complainant as PW-11. Thereafter, learned Public Prosecutor for the State closed prosecution evidence on 18.05.2006.
9. Dhanna @ Dhanne co-accused was arrested in this case on 10.06.2014 and was joined in the investigation of this case. His disclosure statement was recorded and after completing investigation supplementary challan was presented in the court.
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10. Accused Dhanna @ Dhanne was supplied complete set of copy of challan report as provided under Section 207 of Cr.P.C. Since the offence under Section 302 IPC is exclusively triable by the Court of Sessions, learned Magistrate, Sonepat committed the case to the Court of learned Sessions Judge, Sonepat for trial vide commitment order dated 01.08.2014 qua accused Dhanna @ Dhanne.
11. Learned Additional Sessions Judge, Sonepat, after hearing arguments, framed charge-sheet against the accused. Accused Dhanna @ Dhanne was charge-sheeted for the commission of offence punishable under Section 302/34 IPC, which was read over and explained to him in simple language to which he pleaded not guilty and claimed trial.
12. In order to prove the facts of the case, prosecution examined Dr. Rajiv Sethi as PW-1, Jagdish, Halka Patwari as PW-2, Ramesh as PW-3, C. Parveen Kumar as PW-4, EASI Jogender as PW-5, EHC Om Parkash as PW-6, SI Dalvir Singh as PW-7, HC Kapil as PW-8, Ravinder complainant as PW-9, Savitri as PW-10, C. Lokender as PW- 11, HC Jasbir as PW-12, Inspector Inder Pal as PW-13, SI Dharambir Singh as PW-14 and HC Parveen Kumar as PW-15. Thereafter, learned Public Prosecutor for the State closed prosecution evidence on 30.11.2015.
13. During trial in both the cases, statements of all the accused were recorded under Section 313 Cr.P.C by putting every incriminating evidence against them by the learned trial Court to which they pleaded innocence and false implication.
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14. In the trial titled "State vs. Mintu and Others", accused Mintu tendered into evidence challan reports in other cases against Sandeep s/o Duli Chand Exhibit-D1 and Exhibit-D2 and copy of judgment dated 19.02.2004 in which Duli Chand father of victim Sandeep was convicted under Section 302 IPC and Section 27 of Arms Act, Exhibit-D3 and thereafter all the accused therein closed their evidence by making statement dated 01.09.2006.
15. Whereas in second trial on supplementary challan, defence evidence of Dhanna @ Dhanne was closed on 21.12.2015 without him leading any evidence in defence.
16. After hearing arguments advanced by learned Public Prosecutor for the State as well as learned counsel representing the accused persons in Sessions trial titled "State Vs. Mintu and Others", accused Mintu was acquitted of the charge framed against him under Section 302/34 IPC by giving him benefit of doubt whereas Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej were held guilty and convicted under Section 302 read with Section 34 of IPC vide judgment of conviction dated 04.09.2006 and order of sentence dated 06.09.2006 as referred above.
17. On the other hand, in supplementary challan after hearing arguments advanced by learned Public Prosecutor for the State and learned counsel representing accused Dhanna @ Dhanne in Sessions trial titled "State Vs. Dhanna @ Dhanne", accused Dhanna @ Dhanne was convicted under Section 302 read with Section 34 IPC and was sentenced as referred above vide judgment and order of sentence dated 7 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -8- 21.12.2015.
18. Feeling aggrieved of these judgments and orders of sentence, present criminal appeals have been filed by all the convicts namely Sandeep @ Roba @ Sonu s/o Hoshiar Singh, Sandeep s/o Angrej and Dhanna @ Dhanne as referred above.
19. Learned counsel representing appellant/convict Sandeep @ Roba @ Sonu s/o Hoshiar Singh in CRA-D-814-DB-2006 argued that judgment of conviction dated 04.09.2006 and order of sentence dated 06.09.2006 passed by learned trial Court qua Sandeep @ Roba @ Sonu s/o Hoshiar Singh is not on sound footing and is liable to be set aside. The facts of the case and evidence on record were not rightly considered in the correct perspective. In the case in hand, prosecution has miserably failed to prove any motive behind the occurrence. There was no link to connect the appellant with the murder of Sandeep s/o Duli Chand. There is unexplained delay in lodging report to the police. As per prosecution case, deceased left the house on 06.10.2004 at about 9:30 PM allegedly accompanied by Mintu, Anil and Dhanna @ Dhanne. Complainant or his mother did not try to locate the whereabouts of victim nor any report was lodged with the police when he did not return home. Initially appellant was not named or suspected by the complainant in the commission of offence. Entire case of prosecution is based on circumstantial evidence which is a weak type of evidence and prosecution has failed to complete the chain of events to connect him with the said offence. It was the case of prosecution that dead body of Sandeep s/o Duli Chand was lying in the fields of Satpal near Kheri Dhaiya road whereas it has come in the 8 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -9- cross-examination of Ramesh PW-2 that dead body of victim was lying on the Phirni near the house of complainant. Witness Ramesh PW-2 is neither eye witness to the occurrence nor he had supported the prosecution case. Material contradictions in the statements of Savitri PW-9 and Ravinder complainant as PW-11 have been ignored. Learned trial Court has overlooked the aforesaid infirmities in the prosecution case and appellant was wrongly convicted and sentenced under Section 302 read with Section 34 of IPC. It is submitted that appeal preferred by appellant may be accepted by setting aside the aforesaid judgment of conviction and order of sentence passed by the learned trial Court.
20. Learned counsel representing appellant/convict namely Sandeep s/o Angrej in CRA-D-692-DB-2006 pointed out that judgment of conviction and order of sentence passed by the learned trial Court is based upon conjectures and surmises without proper appreciation of evidence on record. The entire case of prosecution was based on theory of last seen and circumstantial evidence. There is no direct evidence on record to show that deceased victim was lastly seen in the company of Sandeep s/o Duli Chand. There is no eye witness to the occurrence. Prosecution has built up its entire case on the basis of disclosure statement made by co-accused which is not admissible in evidence. Prosecution has failed to prove any motive behind the occurrence. The learned trial Court has failed to consider material discrepancies in the statements of Savitri PW-9 and Ravinder PW-11. Both of them have tried to give improved version to falsely implicate the appellant-accused. Even otherwise both the witnesses changed their version when they 9 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -10- stepped into the witness box qua role of Mintu who was ultimately acquitted of charge framed against him. The complainant Ravinder as well as his mother Savitri are not reliable witnesses and their testimonies cannot be safely relied upon. Investigation was not carried out in a proper manner. No private witness was joined in the police party at the time of recording of said disclosure statements or effecting recoveries. Apart from this, the Investigating Officer could not be examined in this case. In fact it was a blind murder in which the present appellant was falsely implicated. The impugned judgment of conviction and order of sentence passed by learned Additional Sessions Judge, Sonepat was prayed to be unsustainable in the eyes of law and thus liable to be set aside.
21. Learned counsel for appellant/convict Dhanna @ Dhanne in CRA-D-126-DB-2016 argued that sufficient evidence was not available on record to hold the appellant guilty of offence punishable under Section 302 read with Section 34 of IPC. Proper appreciation of evidence on record was not carried out. Learned counsel argued the appeal on the same lines as per arguments raised by learned counsel for the appellant representing Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej to the effect that entire case of prosecution is based on last seen theory as well as circumstantial evidence which was not sufficient to complete the chain of events. In the case in hand no recovery was effected from Dhanna @ Dhanne. It was argued that learned Additional Sessions Judge, Sonepat failed to consider law as well as facts of the case and has wrongly held appellant-Dhanna @ 10 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -11- Dhanne guilty for the murder of Sandeep s/o Duli Chand. The judgment of conviction and order of sentence dated 21.12.2015 is thus liable to be set aside by accepting the present appeal.
22. On the other hand learned counsel representing respondent- State argued that there was proper appreciation of the facts of the case and evidence led by the prosecution in both the trials. FIR was registered on the statement of Ravinder complainant who was younger brother of deceased victim Sandeep s/o Duli Chand. Occurrence took place on the intervening night of 06/07.10.2004 and the FIR was registered on 07.10.2004 immediately. There was no delay in the registration of FIR. Learned State counsel pointed out that Ravinder complainant specifically named Mintu, Anil and Dhanna @ Dhanne to have come to their house on 06.10.2004 at 9:30 PM to call his brother Sandeep s/o Duli Chand and thereafter brother of complainant never returned home and his dead body was found in the fields of Satpal in the morning. To prove the entire case, prosecution examined Savitri mother PW9 and Ravinder brother of the deceased victim as PW11. After the arrest of accused Mintu, other accused were named and were arrested in this case. Weapon of offence was recovered on the basis of disclosure statement of Sandeep @ Roba @ Sonu s/o Hoshiar Singh along with Hero Honda motorcycle No. HR-10A-5412 used in the occurrence which is Ex.PE/3. Apart from this, blood stained shirts of Mintu and Sandeep s/o Angrej were also recovered as per their disclosure statements, the respective recovery memos are Exhibit-PG/1 and Exhibit-PG/4. Post mortem report of Sandeep s/o Duli Chand is proved by Dr. Rajiv Sethi 11 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -12- examined as PW-3. As per the post mortem report Exhibit-PD there were six (6) injuries on the person of deceased victim and the cause of death in this case was shock and hemorrhage and extensive damage to brain and spinal cord as a result of injuries described in the post mortem report. All injuries were ante mortem in nature and sufficient to cause death in normal course of life. Probable time elapsed between injuries and death was within few minutes and between death and post mortem was within 6-36 hours. Investigation carried out by the police is proved on record by examining ASI Inder Pal PW-6 and HC Dharambir Singh PW-8. Statement of SI Mehar Singh could not be recorded as he expired during the pendency of the trial. Death certificate of SI Mehar Singh Exhibit-PX was placed on record in sessions trial title "State vs. Dhanna @ Dhanne". Prosecution examined Umesh, Photographer as PW-5 and other relevant witnesses to prove the link evidence and investigation carried out by the police. Report of Forensic Science Laboratory dated 14.07.2005 is Exhibit-PB and as per serological analysis of blood Exhibit-PB/1 there was human blood on Exhibit-2a to Exhibit-2d. Therefore, facts of the case and the evidence on record were rightly considered in both trials and accordingly the appellants/convicts Sandeep @ Roba @ Sonu s/o Hoshiar Singh, Sandeep s/o Angrej and Dhanna @Dhanne were rightly held guilty for the murder of Sandeep s/o Duli Chand and were sentenced under Section 302 read with Section 34 of IPC. The appeals preferred by the appellants are without merits and deserve dismissal.
23. We heard arguments advanced by learned counsel for 12 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -13- appellant(s) and learned counsel representing the State and have gone through the record of both cases carefully with their able assistance. In both trials, most of the witnesses and documents are common. For the sake of convenience of the Court, the evidence and documents mentioned in Sessions Case No. 14 of 2005 titled "State of Haryana Versus Mintu and others" are taken up for discussion.
FIR was registered on the statement of Ravinder who is real brother of deceased victim Sandeep s/o Duli Chand. Complainant alleged that Mintu, Anil and Dhanna @ Dhanne were on visiting terms to their house for quite some time and they used to meet his brother Sandeep. Savitri their mother did not like association of Sandeep with Mintu, Anil and Dhanna @ Dhanne and used to stop him. Sandeep s/o Duli Chand had disclosed to his mother that they were compelling him to join them for committing loots etc. but his brother wanted to stay away from them. On 06.10.2004 at about 9:30 PM, Mintu, Anil and Dhanna @ Dhanne took his brother Sandeep s/o Duli Chand along with them by saying that he will be sent back after taking a cassette from him. However, his brother did not return home and on the next day his dead body inflicted with injuries was found in the fields of Satpal at some distance from the road. Complainant suspected Mintu, Anil and Dhanna @ Dhanne for the murder of his brother as they nourished a grudge against him for not joining their company in illegal activities.
In the case in hand, there is admittedly no direct evidence to prove the occurrence. Prosecution case is based on circumstantial evidence i.e. last seen theory and the articles recovered on the basis of 13 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -14- disclosure statements of accused. Dead body of Sandeep s/o Duli Chand in injured condition was recovered from the field of Sat Pal. Post mortem report of Sandeep s/o Duli Chand is proved on record by Dr. Rajiv Sethi PW-3 which is Exhibit-PD. As per the post mortem report, the deceased victim suffered following injuries:-
1 Skin of entire scalp missing from hair line all around. Cut edges of remaining skin were clean cut. 2 Scalp bones are visible with peritoneum sticking to skull bone at many places.
3 There was fracture of Right Temporal bone through which brain parenchyma was visible and part of temporal bone was missing.
4 Frontal bone on right side just above roof of orbit was fractured.
5 Upper part of left pinna was cut through and through. Margins clean cut.
6 There was heavily cut incised looking lacerated wound on the back of left neck extending from occipital protuberance to the middle of neck and horizontally from back of right to left pinna, measuring 20X8 cm. Underlying cervical vertebra freactured with spinal cord exposed and extensively lacerated with blood in the wound.
On exploration of brain after removing the skull vault, the frontal and right temporal region of brain were lacerated with lot of blood in all the radial fossi. The meninges were lacerated.
* Multiple linear superficial cuts on left side of face and upper neck and upper lip and chin.
* Upper part of pinna of left side was cut through and through. Clotted blood present. Margins of the wound clean cut.
14 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -15- * Incised wound of 10cmX3cm, muscle deep with clotted blood, on top of right shoulder extending medially. * An incised wound of 10cmX3cm present on the back of lower part of right forearm. Clotted blood present. Underlying muscles and tendons exposed and cut.
* An incised wound of 10cmX3cm present on the lateral aspect of middle of right forearm. Clotted blood present. Muscles and tendons exposed and cut.
* Incised wound 3cmX1cm present on dorsum of right hand between base of ring and middle finger. Muscle deep.
* Incised wound 1.5cmX0.5cm on back of metacarpophalangeal joint of right index finger. Clotted blood present.
* Incised wound of 1.5cmX0.5cm in front of lower part of right forearm.
* Incised wound in the medial side of metacarpophalangeal joint of left little finger, 3.5cmX1.5cm in size. Clotted blood present underlying fractured wound. * 1cmX0.3cm incised wound present on distal phalynx of right index finger.
As per opinion of Board of Doctors consisting of Dr. Rajiv Sethi, Dr. Meenakshi and Dr. Arun Garg, cause of death of deceased was haemorrhage and shock and extensive damage to brain and spinal cord as a result of injuries described in the post-mortem report. All injuries were ante-mortem in nature and sufficient to cause death in normal course of life. Probable time that elapsed between injury and death was within few minutes and between death and post-mortem was within 6-36 hours.
Thus deceased victim was murdered by causing injuries on 15 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -16- vital part of his body with sharp edged weapon.
24. Onus was on prosecution to prove the guilt of accused/appellants beyond the shadows of reasonable doubt by leading convincing evidence. In the absence of direct evidence, prosecution was required to prove the guilt on the basis of circumstantial evidence. Hon'ble the Supreme Court of India in case title "Aftab Ahmad Anasari versus State of Uttaranchal", 2010(1) Crimes 97 emphasized the facts and evidence which are to be considered while dealing with the case based on circumstantial evidence. In para no. 4 of the judgment, it was held as under :-
" The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion howsoever strong cannot be allowed to take place of proof and, therefore, the Court has to judge watchfully and ensure that the conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturization of actual incident but the circumstances cannot fail. Therefore, many a times, it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would 16 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -17- be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. If the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt. However, in applying this principle, distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, and to human conduct and their 17 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -18- relations to the facts of the particular case."
Hon'ble the Supreme Court in 2013(1) Recent Apex Judgments (R.A.J.) 435 case titled "R. Shaji Versus State of Kerala"
observed in para No. 23 as under :-
"23. It is a settled legal proposition that the conviction of a person accused of committing an offence, is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances, such conviction may also be based solely on circumstantial evidence. For this to happen, the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. However, a false defence may be brought to notice, only to lend assurance to the Court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be of a conclusive nature, and must exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability the said offence must have been committed by the accused. Firstly, it is the case of prosecution that deceased victim Sandeep s/o Duli Chand was last seen in the company of Mintu, Anil and Dhanna @ Dhanne. Statement of Ravinder complainant is Exhibit-PH. Prosecution examined Ravinder complainant as PW-11 who stated that on 06.10.2004 at about 9:30 PM accused Anil, Dhanna @ Dhanne, 18 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -19- Sandeep @ Roba @ Sonu and Sandeep s/o Angrej had come to their house to call his brother Sandeep s/o Duli Chand, the deceased victim. He was duly confronted with his statement Exhibit-PH where he did not name Sandeep s/o Angrez and Sandeep @ Roba to have come to his house for calling his brother whereas he further skipped the name of Mintu which he had earlier mentioned in his statement Exhibit-PH. Similarly, Savitri mother of the deceased victim stepped into the witness box as PW-9 where she stated that Mintu, Dhanna @ Dhanne, Anil, Sandeep s/o Angrej and Sandeep @ Roba @ Sonu s/o Hoshiar Singh had come to her house for calling his son. During her cross-examination she claimed that Mintu was not amongst the boys who had called his son Sandeep from her house on 06.10.2004 at about 9:30 PM. She further explained that Mintu was named at the instance of police and other accused persons. She denied to have named Mintu in her previous statement given to the police. She further stated that on the previous date when her examination-in-chief was recorded on 06.03.2006 she had named Mintu under pressure of police and by mistake. She was also confronted with her statement Exhibit-DA recorded by the police where she did not name Sandeep s/o Angrej and Sandeep @ Roba @ Sonu s/o Hoshiar Singh as accused persons who had come to her house for calling her son. Therefore, both aforesaid witnesses have given an improved version by excluding the name of Mintu and adding name of Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej who allegedly came to call deceased victim Sandeep s/o Duli Chand.
Prosecution examined Ramesh PW-2 who had identified 19 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -20- dead body of Sandeep s/o Duli Chand before police on 07.10.2004. During cross-examination he claimed that dead body of Sandeep s/o Duli Chand was lying near the door of house of Duli Chand which opened on Phirni. The witness was re-examined but was declared hostile. When confronted with his statement Exhibit-PC, he denied to have given the said statement. He further denied that Savitri mother of the deceased victim ever told him that Mintu, Sandeep s/o Angrej, Dhanna @ Dhanne and Sandeep @ Roba @ Sonu nephew of Dhanna @ Dhanne committed murder of her son. Thus, testimonies of Ravinder PW-11, Savitri PW-9 and Ramesh PW-2 as referred above clearly indicate that they had changed their version with the passage of time. Therefore, their statements cannot be safely relied upon. On account of said improvement in the statement of complainant as well as his mother, one of the accused Mintu was acquitted of the charge framed against him.
25. Moreover, circumstance of last seen together by itself does not always lead to an irrevocable conclusion that it is the accused facing trial in the case who had murdered the deceased victim. Prosecution is required to lead cogent evidence to establish the connectivity or link between the accused and the crime so committed. Time gap between accused last seen together with deceased and discovery of dead body in a given factual matrix may assume importance. Principle of last seen has to be applied by taking into consideration the totality of facts and circumstances of each case.
In the case in hand, Sandeep deceased victim left the house 20 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -21- at 09:30 P.M. on 06.10.2004 and his dead body was spotted at about 09:00 A.M. on 07.10.2004. As per Post-mortem Report Ex.PD dead body was examined on 07.10.2004 at 02:00 P.M. Time between death and post-mortem was within 6-36 hours. There is gap of about 12 hours when Sandeep s/o Duli Chand was last seen alive. This assumes significance and casts a doubt on the prosecution case in view of the circumstances as narrated in the following para.
26. Occurrence took place on the intervening night of 6/7.10.2004. As per prosecution case, Sandeep s/o Duli Chand left the house at about 9:30 PM and did not return home the entire night. Ravinder complainant alleged in his statement Exhibit-PH that his mother Savitri did not like her son Sandeep joining the company of Mintu and others. Despite this Savitri mother of the deceased victim did not make any effort to locate the whereabouts of her son nor she tried to lodge a report with the police. Savitri PW9 and Ravinder PW11 were going to the fields of Azad to harvest Jawar crops when they saw the dead body lying in the fields of Satpal and it was identified by them as that of their son/brother Sandeep s/o Duli Chand. The conduct of Savitri indicates that till she noticed the dead body of her son she was not suspecting anything otherwise she would have tried to search her son at her own level or would have lodged the report with the police.
27. The investigation was carried out by SHO/SI Mehar Singh and his police party. Accused Mintu was arrested and during interrogation he suffered disclosure statement on 15.10.2004 Exhibit-PG. In this disclosure statement, he narrated the reason and manner in which 21 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -22- the occurrence took place. He named accused Dhanna @ Dhanne, Sandeep @ Roba @ Sonu, Sandeep s/o Angrej and also attributed specific roles to them. The said disclosure statement of Mintu recorded by SI Mehar Singh regarding commission of crime is not admissible piece of evidence. Section 26 and 27 of The Indian Evidence Act, 1872 reads as under:-
"26. Confession by accused while in custody of police not to be proved against him. - No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
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27. How much of information received from accused may be proved. - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Therefore, disclosure statement made before the police is admissible only to the extent it leads to discovery of any fact relating to the commission of offence. Gainful reference can be made to the judgment of Hon'ble the Supreme Court in Criminal Appeal No.1030/2023, case title "Manoj Kumar Soni Versus State of Madhya Pradesh", with relevant paras No.22 and 24 thereof reading as under:-
"22. A doubt looms: can disclosure statements per se, unaccompanied by any supporting evidence, be deemed 22 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -23- adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt.
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24. The law on the evidentiary value of disclosure statements of co-accused too is settled; the courts have hesitated to place reliance solely on disclosure statements of co-accused and used them merely to support the conviction or, as Sir Lawrence Jenkins observed in Emperor vs. Lalit Mohan Chuckerburty, to "lend assurance to other evidence against a co-accused". In Haricharan Kurmi vs. State of Bihar, this Court, speaking through the Constitution Bench, elaborated upon the approach to be adopted by courts when dealing with disclosure statements:
13. ... In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right."
Disclosure statement of Mintu Exhibit-PG is led to recovery of shirt allegedly worn by him at the time of commission of alleged offence. On the basis of disclosure statement, a yellow coloured shirt 23 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -24- was recovered on the demarcation of Mintu. The recovery memo is Exhibit-PG/1/PL. He also demarcated the place of occurrence, memo in this regard is Exhibit-PG/2. It is to be reiterated at this stage that Mintu was acquitted by learned trial Court.
Similarly, there is disclosure statement of Sandeep s/o Angrej recorded on 15.10.2004 Exhibit-PG/3. The disclosure statement of Sandeep @ Roba @ Sonu s/o Hoshiar Singh dated 04.12.2004 is Exhibit-PG. Another disclosure statement of Sandeep @ Roba @ Sonu s/o Hoshiar Singh dated 11.12.2004 is Exhibit PE/2. As per disclosure statement of Sandeep s/o Angrej, one shirt was recovered which he was wearing at the time of commission of alleged offence, recovery memo is Exhibit-PG/4 and demarcation of place of occurrence is Exhibit-PG/5. Again on the alleged disclosure statement of Sandeep @ Roba @ Sonu s/o Hoshiar Singh, one sickle and Hero Honda motorcycle No. HR-10A- 5412 were recovered vide recovery memo Exhibit-PE/3. Sketch of sickle is Exhibit-PE/4 and memo regarding demarcation of place of occurrence is Exhibit-PE/5. In the trial titled "State of Haryana vs. Dhanna @ Dhanne", during interrogation his disclosure statement was also recorded on 04.06.2014 and 10.06.2014 which are Exhibit-P7/A and Exhibit-PW 9/B respectively. Memo regarding the demarcation of place of occurrence is Exhibit-PW9/C. However, no recovery was effected in pursuance of aforesaid disclosure statement.
Aforesaid disclosure statements of the accused pertaining to commission of offence do not aid the case of prosecution to bring home the guilt of accused under Section 302 read with Section 34 of IPC.
24 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -25- Onus on the prosecution to connect the recovery of said objects, recovered on the basis of disclosure statements with the commission of offence has not been discharged.
28. On the death of SI Mehar Singh Investigating Officer, investigation and documents prepared by him are proved by examining recovery witnesses ASI Inderpal PW6 and HC Dharamvir Singh PW8. Investigating Officer lifted blood stained earth on 07.10.2004 from the place of occurrence vide recovery memo dated 07.10.2004 Exhibit-PE. He also recovered blood stained broken handle of sickle from the spot vide recovery memo Exhibit-PE/1. However, as per prosecution case disclosure statement of Sandeep @ Roba @ Sonu s/o Hoshiar Singh was recorded on 11.12.2004 Exhibit PE/2 and on that basis sickle and Hero Honda motorcycle No. HR-10A-5412 were recovered vide recovery memo Exhibit-PE/3.
Sketch of sickle is Exhibit-PE/4, according to which wooden handle of sickle was measuring 15.3 cm and its blade was 22.8 cm. Prosecution has failed to explain that when broken wooden handle of sickle was already recovered vide recovery memo Exhibit-PE/1 then how sickle along with wooden handle was again recovered on the basis of disclosure statement dated 11.12.2004 vide recovery memo Exhibit- PE/3. It creates serious doubt regarding the alleged weapon of offence recovered on the basis of disclosure statement of Sandeep @ Roba @ Sonu s/o Hoshiar Singh. There is nothing on record to show that Investigating Officer made any effort to lift fingerprints from the wooden handle of sickle recovered from the place of occurrence on 25 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -26- 07.10.2004. Report of Forensic Science Laboratory Exhibit-PB further shows that no blood was found on Exhibit-3 i.e. shirt and Exhibit-5 Dranti. Report of serological analysis of blood Exhibit-PB/1 shows human blood on shirt, banian, kachha, pyjama Exhibit-2a to Exhibit-2d, whereas blood could not be detected on Exhibit-1 and 4 i.e. blood stained earth and shirt since the material disintegrated. In the light of the above, alleged recoveries on the basis of disclosure statement do not help the case of prosecution to bring home the guilt of appellants/accused beyond the shadow of reasonable doubt.
29. Prosecution has tried to build up enmity as a motive for the commission of offence on the basis of disclosure statements of the appellants/convicts which is not admissible. Complainant Ravinder in his statement given to the police Exhibit-PH claimed that Mintu, Anil and Dhanna @ Dhanne wanted his brother Sandeep s/o Duli Chand to join their company in the commission of illegal activities like loots etc. It is claimed that Sandeep s/o of Duli Chand the deceased victim did not want to join them and for this reason they nourished grudge against him and murdered his brother. Mintu one of the accused has tendered into evidence copy of challan report in FIR No.26 dated 01.02.2002 under Section 457, 380 of IPC, registered at Police Station City Sonepat Exhibit-D1 in which Sandeep s/o Duli Chand is arrayed as one of the accused. There is another copy of challan report in FIR No.24 dated 30.01.2002 under Section 457, 380 of IPC, registered at Police Station City Sonepat Exhibit-D2 in which Sandeep s/o Duli Chand is again arrayed as accused. Aforesaid challan reports indicate that deceased 26 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -27- victim was already involved in other criminal cases. Therefore, the stand taken by the complainant in his statement Exhibit-PH is not substantiated to prove culpability of appellants in the commission of the offence.
30. Learned trial Court while holding appellants/convicts guilty for the offences under Section 302 read with Section 34 IPC has failed to consider the relevant facts and evidence on record in the correct perspective. Material discrepancies in the statements of Savitri mother of the deceased victim and Ravinder complainant which led to the acquittal of one of the accused Mintu have not been considered and are relevant qua the present appellants as well. Learned trial Court has incorrectly given undue importance to disclosure statements allegedly given by the appellants/convicts regarding commission of offence. It was for the prosecution to prove the guilt of appellants/convicts beyond the shadow of reasonable doubt. Conviction can be based on circumstantial evidence provided the testimonies of witnesses are consistent and trustworthy. In the present case, it cannot be held that chain of circumstances is complete and evidence on record points conclusively to the guilt of the accused.
As discussed above, in our considered opinion, learned trial Court has failed to consider the facts, evidence and legal proposition in a proper manner. Thus, judgment of conviction dated 04.09.2006 and order of sentence dated 06.09.2006 passed by learned Additional Sessions Judge, Sonepat qua appellants Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep S/o Angrej and judgment of conviction and 27 of 28 ::: Downloaded on - 22-07-2024 01:59:44 ::: Neutral Citation No:=2024:PHHC:087993-DB CRA-D-814-DB-2006 (O&M) and other connected appeals -28- order of sentence dated 21.12.2015 passed by learned Additional Sessions Judge, Sonepat qua appellant-Dhanna @ Dhanne are not sustainable. Appellants are entitled to the benefit of doubt on considering the facts and circumstances as above. Hence both the above judgments and conviction orders of sentence are set aside. Criminal appeals i.e. CRA-D-814-DB-2006, CRA-D-692-DB-2006 and CRA-D- 126-DB-2016 preferred by appellants/convicts as referred above are allowed. Appellants are resultantly acquitted of the charge framed against them by giving them benefit of doubt. It is informed that appellant-Sandeep @ Roba @ Sonu is in custody. If not required in any other case, he be released forthwith. Bail bonds of other appellants Sandeep and Dhanna @ Dhanne, whose sentence has been suspended, be discharged.
31. Pending application(s) if any, also stand disposed of accordingly.
32. Original/photocopy of trial Court record be returned to the concerned quarter.
(AMARJOT BHATTI) (LISA GILL)
JUDGE JUDGE
05.07.2024
Sunil Devi
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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