Punjab-Haryana High Court
Surender And Another vs State Of Haryana on 14 January, 2009
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Daya Chaudhary
Crl.A. No. 322-DB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.A. No. 322-DB of 2003
DATE OF DECISION: JANUARY 14, 2009
Surender and another
.....APPELLANTS
Versus
State of Haryana
....RESPONDENT
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
---
Present: Mr.B.S. Saroha, Advocate,
for the appellants.
Mr.Partap Singh, Sr.D.A.G., Haryana.
..
SATISH KUMAR MITTAL, J.
This criminal appeal has been filed by accused against their conviction and sentence passed by the Additional Sessions Judge, Rohtak in Sessions case No.126 of 2002 arising from FIR No.123 dated 20.4.2002 under Sections 302/201/120-B IPC, registered at Police Station Sadar, Rohtak. Accused Surender has been convicted under Section 302 IPC and sentenced for rigorous imprisonment for life and a fine of Rs.20,000/-, in case of default of payment of fine, further rigorous imprisonment for a period of three years. He has been further convicted under Section 201 IPC and sentenced for rigorous imprisonment for a period of five years and a fine of Rs.5,000/-, in case of default of payment of fine, further rigorous Crl.A. No. 322-DB of 2003 -2- imprisonment for a period of one year. Accused Sham Lata has been convicted under Section 201 IPC and sentenced for rigorous imprisonment for a period of five years and a fine of Rs.5,000/- in case of default of payment of fine, further rigorous imprisonment for a period of one year. However, both the sentences of accused Surender were ordered to run concurrently.
In the present case, the aforesaid FIR (Ex.PE) was registered at Police Station Sadar, Rohtak under Sections 302/34 IPC on 20.4.2002 at 12.45 a.m. on the statement of Jagdish (father of deceased Sunil) made before ASI Ishwar Singh (PW18), who met him at Bus Stand, Bhagwatipur. In his statement (Ex.PC), complainant Jagdish had stated that he was having two sons and two daughters. The eldest was Sunil (deceased). He used to ply a maxi cab jeep from Rohtak to Julana. On previous date, i.e., 19.4.2002, his son Sunil had left the house at 8.00 p.m. after taking milk by telling that he was going for walk. Thereafter, his son Sunil did not reach home. He searched his son. On the next date, i.e. 20.4.2002 at 10.00 a.m., he came to know that dead body of a young man was lying in the field of Khatiwala. He went there and saw that the said body was of his son Sunil. Sharp edged wounds were present on his head, forehead and on his hands. A lot of blood was present on the spot. He stated that his son was murdered on previous night by giving him injuries by some unknown persons. He stated that he was having no doubt on anybody as he was having no grudge with any inhabitant of the village. After leaving his brother Nafe Singh son of Attar Singh, his son Anil and Ishwar Sarpanch of the village with the dead body, he had come to lodge the report.
After registering the FIR, the police party went to the spot Crl.A. No. 322-DB of 2003 -3- where Nafe Singh, Anil son of Jagdish and Ishwar, Sarpanch and many other villagers were found present at the place of occurrence. In their presence, the spot and the dead body was inspected. One glass tumbler (Ex.P11), empty plastic bottle (Ex.P12) and empty half of English liquor bottle (Ex.P13) were found by the side of dead body. The sniffer dog was called. At that time, PW-11 SDC Sudershan Kumari also came there from the S.P. office, Rohtak. She had taken the finger prints from the glass tumbler, empty plastic bottle and empty half of English liquor bottle lying at the spot and sealed them in a parcel. Thereafter, the dead body was taken for autopsy to the Mud Hut Dispensary, Rohtak and inquest report (Ex.PZ) was prepared.
On 20.4.2002 itself, PW1-Dr.Mahesh Parkash conducted the post-mortem of the deceased. He found 12 injuries on the person of the deceased. In the stomach, there was liquid and undigested food and smell of alcohol was also present. In the opinion of the doctor, the cause of death was due to injuries to the big vessel, i.e., right carotid and trachae, leading to haemorrhage shock. All the injuries were found to be ante-mortem in nature and were sufficient to cause death. The time between injury and death was within few minutes and between death and post-mortem was between 12 to 24 hours.
As per the prosecution version, on 26.4.2002 at 1.00 p.m., both the accused made extra-judicial confession before PW5-Dilbagh Singh, who is resident of the same village. In his statement, PW5 had stated that on 26.4.2002 when he and Rajal were present in the Baithak of Rajal, at about 1.00 p.m., both the accused came there and accused Surender disclosed that one year back deceased Sunil had an evil eye on his wife Sham Lata and he Crl.A. No. 322-DB of 2003 -4- tried to molest her. He also disclosed that he and his wife planned to kill Sunil. Accordingly, he brought a quarter of English liquor from Rohtak and the deceased was called at his shop. He also took a crushed pill and a knife from his shop. He and Sunil went to the field where he gave the crushed pill in wine to Sunil and after drinking, he became unconscious. Thereafter, he murdered him by giving knife blows. After killing Sunil @ Lilu, he went to his house and disclosed all facts to his wife Sham Lata. His wife had taken off his blood stained clothes and after burning those clothes, had thrown the ashes at the Kurdi of the village. The accused had further disclosed that they wanted to surrender before the police.
As per the prosecution version, then the accused were produced by PW5-Dilbagh Singh before the police. Thereafter, on the basis of the disclosure statement (Ex.PL) made by accused Surender, knife (Ex.P29) was recovered vide recovery memo dated 27.4.2002(Ex.PL/2). The disclosure statement (Ex.PL) and recovery memo (Ex.PL/2) were witnessed by PW14- Om Parkash and one Anup Singh. On interrogation, accused Sham Lata had also made a disclosure statement (Ex.PM) and also got recovered the ashes from the Kurdi of the village vide recovery memo (Ex.PM/1). This disclosure statement as well as recovery memo have also been witnessed by the same person.
During investigation, FSL report was obtained regarding ash, which was recovered from the Kurdi vide recovery memo (Ex.PM/1). The sample of the finger prints of accused Surender were obtained from glass tumbler and plastic bottle lying at the place of the occurrence. His specimen handwriting (Ex.PV/1) was also taken.
After investigation, the challan was filed and the case was Crl.A. No. 322-DB of 2003 -5- committed to the court of Session. Charges under Sections 302/201/120-B IPC were framed against the accused to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined 18 witnesses and produced on record various documents and reports. After recording the evidence of the prosecution, the trial Court put all the incriminating material to both the accused while recording their statements under Section 313 Cr.P.C. The accused pleaded false implication and claimed to be innocent. Accused Surender pleaded that he was innocent and has been falsely implicated because the police had earlier registered a case against the son of Anoop Singh under Section 376 IPC, who is a prosecution witness in the instant case. The said Anoop Singh is brother of father of the deceased and he in connivance with the police has falsely implicated them. The real uncle of the deceased is also a Sub Inspector in police and he got prepared false proof against them in connivance with the police. He further stated that he was taken into custody by the police from village Nidana where he had gone to attend the marriage of the daughter of his uncle and at that time Sarpanch, ex-Sarpanch and Lambardar of the village were also present. In presence of ex-Sarpanch of village Nidana, the police obtained his signatures forcibly after giving beatings. In defence, the accused examined DW1-Raghbir, Sarpanch of village Nidana.
After considering the evidence led by the prosecution and hearing the learned counsel for both the parties and after appreciating the evidence available on the record and coming to the conclusion that the prosecution has fully proved its case beyond any reasonable doubt, the trial Court convicted accused Surender under Sections 302/201 IPC and accused Crl.A. No. 322-DB of 2003 -6- Sham Lata under Section 201 IPC and sentenced them, as indicated above. Hence this appeal.
Learned counsel for the appellants submitted that in the instant case the trial Court has illegally convicted both the accused for the alleged offence only on the basis of the circumstantial evidence from which the conclusion of the guilt of the accused has not been established. Neither those circumstantial evidence is consistent nor conclusive in nature. These circumstantial evidence are not consistent with the hypothesis of guilt and inconsistent with innocence. Learned counsel further submitted that in such a case a strong motive to commit the alleged crime should have been established by the prosecution which in the instant case has not been established at all. Learned counsel submitted that according the prosecution version, the motive of the alleged crime was the illicit relation of the deceased with the wife (Sham Lata) of accused Surender and that too was one year prior to the alleged occurrence. Learned counsel further submitted that this alleged motive has not been proved by any witness. Only PW5- Dilbagh Singh, before whom the alleged extra-judicial confession was made by accused Surender, had stated in his statement that accused Surender had disclosed before him that his wife was having illicit relation with deceased Sunil, therefore, he planned to kill him in collusion with his wife. Learned counsel further submitted that the alleged extra-judicial confession was manipulated by the police in connivance with the aforesaid witness, who undisputedly is close relative of deceased Sunil, being his real uncle. Learned counsel submitted that as per the defence taken by the accused and the statement of defence witness DW1, both the accused were taken into custody by the police on 25.4.2002 from village Nidana where they had Crl.A. No. 322-DB of 2003 -7- gone to attend the marriage of the daughter of uncle of accused Surender, and subsequently, the extra-judicial confession, their disclosure statements and recoveries were manipulated. He submitted that even as per the FSL report regarding blood on the knife, no conclusive report was given which establishes that the alleged knife (Ex.P29) was planted subsequently. He further submitted that in addition to the alleged evidence of extra-judicial confession, the recoveries and the FSL report, the trial Court has also relied upon the statements of PW3-Jaswant Singh and PW4-Raj Singh, who stated that they had last seen the accused in the company of the deceased just prior to the date of occurrence on 19.4.2002. Learned counsel submitted that as per the statement of PW3-Jaswant Singh, his statement (Ex.DA) was recorded by the police on 20.4.2002 at 10.30 a.m. in which he stated that he had seen the deceased with the accused on previous night while going towards the place of occurrence. At that time, accused Surender was having a tumbler and a bottle of water whereas Sunil was having a quarter of liquor with him. Learned counsel submitted that if that statement (Ex.DA) was available with the police, then this fact should have been mentioned in the inquest report (Ex.PZ) which was prepared later on. Therefore, the statement of this witness that he had last seen the deceased with the accused is not trustworthy and should not be relied upon.
Similarly, the statement of PW4-Raj Singh, who stated that on the previous date, i.e., 19.4.2002 he went to the shop of accused Surender to purchase a matchbox where he and the deceased were planning to have liquor, also should not be relied upon.
Learned counsel further pointed out that the FSL report (Ex.PJ) where the finger prints of tumbler (Ex.P11), empty plastic bottle (Ex.P12) Crl.A. No. 322-DB of 2003 -8- and empty half of liquor bottle (Ex.P13) were found to be tallying with the finger print of accused Surender, cannot be relied upon as those finger prints were sent to the FSL Laboratory after more than one month and before that, the same remained in the custody of the police. He submitted that the possibility of changing those prints at the behest of real uncle of the deceased, cannot be ruled out. Therefore, it is not safe to rely upon those evidence which has been collected by the police during the investigation.
Regarding accused Sham Lata, learned counsel submitted that there is no evidence on the record on the basis of which she can be convicted under Section 201 IPC. Learned counsel submitted that as far as charge of conspiracy under Section 120-B IPC is concerned, the same has not been proved and the trial Court has already come to the conclusion that the prosecution has failed to prove the said charge. As far as the offence under Section 201 IPC is concerned, the prosecution version is that after committing the crime, when accused Surender went to his house, his wife Sham Lata got removed the blood stained clothes from his body and after burning them, threw the ashes on the Kurdi of the village. Learned counsel submitted that to establish this allegation, except the FSL report (Ex.PJ), according to which, the ash was of cotton fabric, no other evidence has been led by the prosecution. Learned counsel further submitted that vide recovery memo (Ex.PS/1), the alleged ash was recovered after seven days of the occurrence from the Kurdi of the village. Learned counsel submitted that it is a common knowledge that everyday in the village so much garbage is thrown in the Kurdi and that taking of the sample of the ash after seven days is not possible. Therefore, on the basis of the alleged evidence the conviction of the accused under Section 201 IPC is highly unsafe. Learned Crl.A. No. 322-DB of 2003 -9- counsel further argued that there are vital contradictions between the statement of PW2-Jagdish and the statements of other witnesses. Therefore, the statement of this witness is not trustworthy and cannot be relied upon.
On the other hand, learned counsel for the respondent-State supported the judgment of conviction and order of sentence passed by the trial Court.
After hearing the learned counsel for the parties and going through the record of the case, we are of the opinion that as far as accused Surender is concerned, the prosecution has fully proved the commission of the offence of committing the murder of deceased Sunil son of Jagdish against him under Section 302 IPC. Therefore, he was rightly convicted by the trial Court under Section 302 IPC. Regarding commission of the offence under Section 201 IPC by both the accused is concerned, we are of the opinion that the same has not been established.
From the medical evidence available on the record, i.e., Post- mortem report (Ex.PA/1) and the statement of PW1-Dr.Mahesh Parkash, it has been established that the deceased Sunil had died due to twelve injuries found on his person which were ante-mortem in nature and were sufficient to cause death. As per the prosecution, those injuries were caused by knife (Ex.P29) which was got recovered by the accused vide disclosure statement dated 27.4.2002(Ex.PL/2). In his cross-examination, PW1 has stated that since the knife (Ex.P29) was having irregular edges specially of lower part, so injury no.3 could be caused by it. It was further stated by the said witness that this injury could be caused by the said weapon by means of cutting from those sharp points and not by way of thrusting. He further stated that injuries no.1 to 4 could be caused by this weapon when used vertically. The Crl.A. No. 322-DB of 2003 -10- suggestion put to this witness that this injury could not have been caused by the knife (Ex.P29), was denied by him. The other important factor, which was noticed during the post-mortem of the deceased, is that in the stomach of the deceased, there was liquid and undigested food and smell of alcohol was also present. This fact corroborated the prosecution version that before committing the murder of the deceased, liquor was consumed by the deceased. On the basis of a disclosure statement (Ex.PL) made by accused Surender about concealing the knife, the knife (Ex.P29), which was used in the crime, was got recovered by the accused vide recovery memo dated 27.4.2002(Ex.PL/2). The said recovery of knife has been duly proved by independent witness Om Parkash-PW14. In addition to this evidence, the prosecution has proved the finger prints of the accused on glass tumbler, empty plastic bottle and empty half of English liquor bottle lying at the place of the occurrence vide FSL Report (Ex.PJ). As per the prosecution version, Smt. Sudershan Kumari-PW11 was called from the S.P. office, Rohtak for taking finger prints from the glass, plastic empty bottle and one empty half of English wine, which were lying on the spot. In her statement as PW11, she has categorically stated that on 20.4.2002 she had gone to the spot and taken the finger prints from the glass, plastic empty bottle and one empty half of English wine, and thereafter, the finger prints of those articles were duly sealed. According to the FSL Report (Ex.PJ), the finger prints, which were found on these articles, are duly tallying with the finger prints of accused Surender. The contention of the learned counsel for the appellants that those finger prints could not have been relied upon because the same were sent to the Forensic Science Laboratory after more than 20 days, cannot be accepted. On examination of the record, we found that after Crl.A. No. 322-DB of 2003 -11- arrest of the accused, the finger prints of the accused were finally taken on 10.5.2002 with the permission of the Court. Thereafter, the same were sent to the Forensic Science Laboratory for examination. We do not find any delay in sending the specimen finger prints as well as the finger prints collected at the spot for examination by the Forensic Science Laboratory. Even otherwise,Jai Narain-PW12, who had compared the finger prints of accused Surender, had stated that the finger prints taken by Smt.Sudershan Kumari on the spot were received in a sealed cover and the same was very much intact. Therefore, we find that there was no possibility of changing the finger prints taken from glass, plastic empty bottle and one empty half of English wine lying on the spot.
We have carefully examined the statement of PW5-Dilbagh Singh, before whom extra-judicial confession was made because the said witness is related to the complainant. The said witness is educated and also remained as Member of the Cooperative Society and was also a Member of Gram Sabha of village Bhagwatipur. In our opinion, he had no enmity with the accused and no reason to depose against him falsely, and his statement cannot be discarded only on the ground that he was related to the complainant.
Another important evidence available on the record is the statement of PW3-Jaswant Singh, who had last seen the deceased in the company of the accused. This witness has categorically stated that on 19.4.2002 at about 8.00/8.15 p.m. when he was returning from his fields, then he met accused Surender and deceased Sunil in the fields of Prem. Surender accused was having a tumbler and a bottle of water whereas Sunil was having a quarter of liquor with him. When he enquired from them Crl.A. No. 322-DB of 2003 -12- where they were going. Then they replied that they were going towards their fields. The statement of this witness, in our opinion, cannot be discarded merely on the ground that the police did not mention about the statement in their inquest report. This witness is an independent witness not related to either of the parties and there is no reason of his false deposing against the accused. Similarly, PW4-Raj Singh, who is another independent witness, had categorically stated that on 19.4.2002 when at about 7.45 p.m. when he had gone to the shop of the accused for purchasing matchbox, the accused and the deceased were in the shop and were about to take liquor. The testimony of this witness, in our opinion, cannot be doubted. Therefore, there is no reason for discarding the statement of this witness. Regarding motive, though the evidence is not clear, but the motive has also been established in this case. Since the wife of the accused Sham Lata and Sunil (deceased) were residing in the same village, and as per the facts came on the record the possibility of having illicit relation cannot be ruled out.
In our opinion, from all above facts and circumstances and evidence, the prosecution has clearly proved the commission of the offence of murder against accused Surender. In our opinion, all these facts and circumstances so established by the prosecution are consistent and are of a conclusive nature. The chain of the evidence is complete and there is no reasonable ground to come to the conclusion about the innocence of the accused. Thus, in our opinion, the trial Court has rightly come to the conclusion that the prosecution has proved the guilt against the accused beyond reasonable doubt. Thus, we confirm the conviction and sentence of accused Surender for the offence under Section 302 IPC for committing the murder of Sunil.
Crl.A. No. 322-DB of 2003 -13-
Now it is to be considered whether in light of the evidence available on the record, the conviction of accused Surender as well as accused Sham Lata under Section 201 IPC is to be sustained or not. The only allegation for committing the offence under Section 201 IPC is that when accused Surender went to his house after committing the offence, his wife Sham Lata had taken-off his blood stained clothes and after putting them on fire, she had thrown the ash in a Kurdi. The said ash was alleged to have been recovered from the said Kurdi after seven days vide recovery memo (Ex.PM/1), and according to the FSL report, the said ash was of cotton fabric. In our opinion, this version of the prosecution is highly improbable and doubtful and cannot be believed. Generally, an ash put in a Kurdi cannot be found in the same position after a period of seven days. It is general experience that in the village, everyday the inhabitants of the village used to throw garbage in the Kurdi. Therefore, it cannot be believed at all that after seven days the ash, which was thrown by accused Sham Lata, could be found in the same position, and the same was taken into possession by the police at the instance of disclosure statement made by said accused. Therefore, the allegation of the prosecution that the accused had caused disappearance of the evidence and, thus, committed the offence under Section 201 IPC, cannot be believed. Except that evidence, there is no other material/evidence available on the record. Consequently, in our opinion, the conviction of both the accused under Section 201 IPC cannot be sustained at all. Therefore, the conviction of both the accused for the said offence is hereby set aside.
In view of the above, the appeal is partly allowed. Since Crl.A. No. 322-DB of 2003 -14- accused Sham Lata was only convicted under Section 201 IPC, therefore, she is acquitted of the charge levelled against her under Section 201 IPC.
(SATISH KUMAR MITTAL)
JUDGE
January 14, 2009 ( DAYA CHAUDHARY )
vkg JUDGE