Punjab-Haryana High Court
Vijaypal vs State Of Haryana on 1 July, 2008
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 437-DB of 1999
Date of Decision: 1st July, 2008
Vijaypal ... Appellant
Versus
State of Haryana ... Respondent
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL,
HON'BLE MR. JUSTICE S.D. ANAND.
Present : Mr. R.S. Malik, Advocate,
for the appellant.
Mr. Naveen Malik, Addl. Advocate General, Haryana,
for the respondent.
S.D. Anand, J.
Appellant - Vijaypal was convicted by the learned Sessions Judge, Sonipat, on a charge of having committed the murder of Chander Mohan on the night intervening 15/16.04.1998.
The impugned finding of indictment was recorded by the learned Trial Judge on the basis of the last-seen evidence in the statements of PW6 - Om Parkash and PW7 - Sanjay Kumar. The deceased was married to Mst. Rashmi, a niece of the appellant. The marriage ended in a divorce. The children born out of the union were residing with their mother Rashmi. First informant Manju Mishra (PW5), a sister of the deceased, had a suspicion that the deceased Crl. Appeal No.437-DB of 1999 2 had been done to death on account of his having divorced Mst. Rashmi.
Before proceeding to appreciate the evidence, we would like to notice that the last-seen evidence collected by the Investigating Agency was in the statements of PW6 - Om Parkash and PW7 - Sanjay Kumar; while the appellant was alleged to have made an extra judicial confession before PW8 - Kashmiri Lal, a former Sarpanch of Village Butana.
We find, on appraisal of the record, that the appeal deserves allowance.
First Information Report (Ex.PB) was lodged by PW5 - Manju Mishra on the basis of the information obtained by her from Om Parkash (PW6) and Sanjay Kumar (PW7). That fact is noticed in the First Information Report itself. The first informant does not claim to have obtained information about the murder of her brother from any other person. Om Parkash and Sanjay Kumar appeared as PW6 and PW7 respectively. As already noticed, theirs purports to be the last-seen evidence. The First Information Report does not at all indicate that the first informant had been told by PW6 - Om Parkash and PW7 - Sanjay Kumar about their privy to the last-seen evidence. If they had actually seen the appellant in the company of the deceased the preceding evening, there is no reason why they would not have intimated that fact to her and further, if they had furnished that information to the first informant, there is no reason why that fact would not have come to be mentioned in the FIR itself. Crl. Appeal No.437-DB of 1999 3
On point of fact, we would like to notice that PW7 - Sanjay Kumar did not support the prosecution plea. The only witness pertaining to the extra judicial confession i.e. PW8 - Kashmiri Lal also did not own the role attributed to him. Even otherwise, the prosecution has not placed on record any material to indicate why did the appellant have to open his heart before PW8 - Kashmiri Lal.
In the circumstances of the case, we are of the view that the impugned finding cannot be upheld. We allow the appeal. The impugned judgment shall stand set aside. The appellant shall stand acquitted of the charge.
( S.D. Anand )
Judge
July 01, 2008 ( Adarsh Kumar Goel )
vkd Judge
Note: Whether to be referred to reporter : Yes/No