Punjab-Haryana High Court
Amar Nath vs State Of Haryana on 21 September, 2011
Bench: Jasbir Singh, Sabina
CRIMINAL APPEAL NO. 453-DB OF 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: September 21, 2011.
Parties Name
Amar Nath
...APPELLANT.
VERSUS
State of Haryana ...RESPONDENT
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Ms. Anju Arora, Advocate, for the appellant.
Mr. S.S.Randhawa, Addl. A.G., Haryana;
Jasbir Singh, J.
JUDGMENT
This judgment will dispose of Criminal Appeal No. 453-DB of 2001, titled as Amar Nath v. State of Haryana, and Criminal Appeal No. 451-DB of 2005, titled as Balbir Singh v. State of Haryana, arising out of the judgment and order dated June 5, 2001 and June 7, 2001, respectively passed by the Additional Sessions Judge at Karnal. To dictate order, facts CRIMINAL APPEAL NO. 453-DB OF 2001 -2- are being taken from Criminal Appeal No. 453-DB of 2001.
FIR bearing No. 389 dated May 30, 1998, was registered for commission of offences under Sections 302/201 IPC. It is allegation against the appellants , Savitri Devi and Bali that all of them had committed murder of Fateh Singh, aged 70 years, who left his house in village Bakh Khera, district Jind, on May 13, 1998. His dead body was found in a pond in village Jundla, district Karnal, on May 30, 1998.
The process of law was set in motion on a statement made by Shri Ved Parkash, Sarpanch of village Jundla, which reads thus:
"I am Sarpanch of village Jundla. Today I was present in my Mohalla. Some children informed me that the dogs are wandering around the bundle lying near the bank of Guhi Johar and are pulling the bundle. It seems that there is dead body of some person in it. On receiving this information, I myself reached at Guhi Johar and seen one bundle prepared with the plastic kattas (Palli), which contains a dead body of some male person. I found after removing the Palli and found that there is no skin and flesh on the face of this person, feet are also eaten. Sufficient part of the body was eaten. The bones of legs are visible. Worms are also sitting on the dead body. The body of this person having white shirt around the neck and a thread (Tagri) around the waist, one big button is stitched on the front pocket of the shirt. There is one pocket on the right side of the shirt. A scarf cord is around the neck of this dead body. There is no cloth on the waist and whole of the portion is naked. The CRIMINAL APPEAL NO. 453-DB OF 2001 -3- dead body is smeared with murd of pond. Sufficient Samunder Soak grass (pelagian) has been grown in the pond and there is swamp in the pond. This unknown person has been killed by some unknown person or persons and put the dead body in the Samunder Soak grass (Pelagian) of Guhi Johar after wrapping in the Palli. The same has been brought at the bank by the dogs. The dead body is giving foul smell and is decomposed.
It is unidentifiable and it is difficult to give its age. I was going to report the matter after leaving Mala Chwokidar near the dead body when you met me on the main road and I have got recorded my statement. Statement heard and is correct. Legal action may be taken."
Upon receipt of information, as stated above,ASI Umed Singh sent an intimation to Police Station Sadar Karnal, on the basis of which FIR No. 389 was recorded on May 30, 1998, at 8.30 PM. The Investigating Officer Inspector Bhim Singh (PW9) went to the spot, took possession of the dead body in the presence of Ved Parkash , Sarpanch of the village. Inquest report was prepared and the dead body was sent for post-mortem examination, which was conducted by Dr. S.K. Dhatarwal (PW1) on June 1, 1998. In the Court, he stated as under:
"On 1.6.98, I conducted post mortem examination on the dead body of unknown male brought by C. Ram Chander and C. Surinder Singh, length of body was 162 cm, wearing full sleeve white shirt with right had button and front button intact and CRIMINAL APPEAL NO. 453-DB OF 2001 -4- tied, left hand of shirt torn at distal point, right pocket of shirt contained one rupee coin. There was foul smell, maggots of size 1 to 1.5 cm, partially skeletonised body, right and left hand missing, skin and soft tissues present only over upper part of front of chest lateral aspect of trunk and back of trunk, both arms and right forearm.
Ligature material:- A light green Safa tied around neck, four folded, 44 cm was the circumference.
Ligature mark:- there was a transverse ligature mark with 5 cm width situated just below thyroid cartilage prominence with evidence of ecchymosis in the deeper tissues. Scalp was having patches of gray hair 1 to 2 cm long, skull was having fusion of sagittal and corneal sutures and partial fusion of lambdoid suture, vertebrae were having lapping. Larynx and trachea were fracture with evidence of infiltration and ecchymosis. Lungs, heart, abdominal peritoneum were missing. Dental formula as shown in the PMR with marked grinding of teeth. Stomach, intestine, liver, spleen, kidney and bladder were missing. In organs of generation externally only root of penis was identifiable while internally only prostate was identifiable. In my opinion the dead body was of a middle aged male."
The cause of death was declared as strangulation by ligature and time since death was about two weeks. In the cross-examination, the CRIMINAL APPEAL NO. 453-DB OF 2001 -5- witness has said that the time of death may be 12 days before the date when post-mortem examination was conducted. As is evident from the statement made by Dr. S.K. Dhatarwal, the body was not identifiable. It was in the shape of semi-skeleton. PW1 further stated that the dead body was of a middle aged male. Death was stated to have occurred within two weeks from the date when post-mortem examination was conducted, i.e., June 1, 1998. As per case of the prosecution, rope etc. were recovered on a disclosure statement made by Balbir Singh, appellant, and some money was recovered on a disclosure statement made by Amar Nath. On August 25, 1998, PW5 Krishan Lal son of the deceased came in the Police Station and informed that the deceased was engaged in the business of selling and purchasing the buffaloes in association with Balbir Singh, appellant, and on May 13, 1998, he had gone to Balbir Singh and had not returned back. The police officials showed the clothes and other articles, which were taken into possession at the time of post-mortem examination, to PW5 Krishan Lal, who identified the same to be of his father. Balbir Singh, appellant, and Savitri were produced before the Investigating Officer by PW7 Ajit Singh son-in-law of the deceased on August 27, 1998. The above witness also told the Investigating Officer that Balbir Singh and Savitri had admitted that Fateh Singh was killed by them along with Amar Nath and Bali with the intention to grab money from the deceased.
On conclusion of investigation, final report was put in Court for trial. The accused were charge-sheeted for offences punishable under Sections 302/201/34 IPC, to which they pleaded not guilty and claimed trial. The prosecution to prove its case produced ten witnesses and also brought CRIMINAL APPEAL NO. 453-DB OF 2001 -6- on record documentary evidence. On conclusion of prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C., in which they pleaded innocence and false implication. They also led evidence in defence. Appellant Balbir Singh denied that he had made any confession of guilt before PW7 Ajit Singh. Further he also denied having made any disclosure statement, which led to recovery of a rope etc. In response to question No. 27, he took up the following defence:
"I am innocent. I have been falsely involved in this case. I and my co-accused Bali and Amar Nath along with 6/ 7 residents of village Jundla were detained on suspicion in Police Station Sadar Karnal on 22.8.98. The police with the help of complainant party cooked up a false story, while the other residents of our village, who were detained with us, were freed. However, I and my co-accused Bali and Amar Nath were detained in Police Station Sadar Karnal. My wife Savitri was arrested by the police in presence of Ved Parkash Sarpanch from her parental village Rahra in district Kaithal subsequently. We never made any extra judicial confession or any disclosure statement nor any recovery was effected from me or from my wife. The PWs Ajit Singh and Richhpal Singh are stranger to me till date. No identification of clothes etc. was made by the police on 25.8.98. Rather it has been padding on us."
The trial Court on appraisal of evidence found Bali and Savitri Devi innocent and they were acquitted. However, the trial Court found CRIMINAL APPEAL NO. 453-DB OF 2001 -7- Amar Nath and Balbir Singh guilty for committing the offences with which they were charged and accordingly convicted and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each, with a default clause, for offence under Section 302/34 IPC and to undergo RI for three years and to pay a fine of Rs. 500/- each, with a default clause, for offence u/S 201/34 IPC. Hence these appeals.
Counsel for the appellants, by making reference to the contents of the statements made by the prosecution witnesses, argued that their testimony does not inspire confidence. The witnesses contradicted each other regarding their coming to know about death of Fateh Singh. She further argued that the dead body was not identifiable. The alleged clothes, on the basis of which body was identified, were spoiled with blood and mud, on account of that, it was not possible to identify the dead body. No DNA test was conducted to establish the identity of Fateh Singh deceased. She further argued that it was a case of circumstantial evidence. None had seen the occurrence. The prosecution has failed to complete chain of circumstances, which may lead to a conclusion that the appellants had committed the murder of Fateh Singh. She prayed that the appeals be allowed and the appellants be acquitted of the charges framed against them.
Prayer made has vehemently been opposed by the State counsel. By making reference to the statements made by PW5 Krishan Lal, he argued that the delay in lodging the report has sufficiently been explained. Further, by making reference to the statement made by PW7 Ajit Singh, he stated that appellant Balbir Singh and his wife Savitri Devi had made confessional statement of their guilt before the above witnesses, CRIMINAL APPEAL NO. 453-DB OF 2001 -8- which was duly proved on record and in view of that, conviction was justified. He further submitted that on disclosure statements made by the appellants and their co-accused, recoveries were effected, which also indicated towards guilt of the appellants- accused. He prayed that the appeals having no substance be dismissed.
It is a case of blind murder. There is no eye witness account. The prosecution case rests upon the circumstantial evidence. None had seen the deceased with the accused. In such like cases, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. Circumstances need to be of a definite tendency positively pointing towards guilt of the accused. All the circumstances taken together should form a complete chain so that there is no escape from a conclusion that within all human probability the crime was committed by the accused and not by anybody else. The circumstantial evidence must be complete and incapable of explanation of any hypothesis other than that of guilt of the accused. The evidence should be inconsistent with the innocence of the accused and it should not be capable of two opinions. Their lordships of the Supreme Court in Krishnan v. State, (2008) 15 SCC 430, a case where accused was sought to be convicted on the basis of circumstantial evidence, after considering a large number of its earlier judgments, observed as under:
"15...This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i)the circumstances from which an inference of guilt is sought CRIMINAL APPEAL NO. 453-DB OF 2001 -9- to be drawn, must be cogently and firmly established;
(ii)those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii)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 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. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351: 1982 SCC (Cri) 431: AIR 1982 SC 1157)."
The above view was reiterated by the Hon'ble Supreme Court in the case of Babu v. State of Kerala, (2010) 9 SCC 189, and also in the case of SK Yusuf v. State of West Bengal, 2011(74) ACC 293. In the latter judgment, it was observed as under:
"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which CRIMINAL APPEAL NO. 453-DB OF 2001 -10- the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
In this case, evidence of the prosecution is to be analysed as per the terms of parameters set down by their lordships of the Supreme Court in the above named judgments.
The process of law was set in motion on a statement made by Ved Parkash, Sarpanch of village Jundla (PW8). He has stated that he spotted a dead body on the bank of a pond in the village. He intimated the Investigating Officer, which led to the recording of an FIR on May 30, 1998. This witness has categorically stated that after lodging the report, he was not called by the police again to join the investigation. He has further stated that near to the pond stated above, the area is thickly populated. He has further stated that Savitri accused was arrested by the police in his presence, from village Rehra, in the morning on August 23, 1998 and that other three accused were arrested on August 22, 1998, from their houses in village Jundla. This witness was not declared hostile. CRIMINAL APPEAL NO. 453-DB OF 2001 -11-
Similarly, ASI Raj Pal (again numbered as PW8) has stated that on June 1, 1998, two sealed parcels containing shirt and Parna were deposited with him. On August 25, 1998, PW5 Krishan Lal and Balkar Singh came to the Police Station. On direction given by Inspector Bhim Singh (PW9), he opened the sealed parcels. Shirt and Parna were taken out and shown to the above named witnesses, who identified those articles to be that of Fateh Singh deceased. Thereafter articles were re-sealed. This witness has categorically stated that the accused were already in custody when articles were identified in his presence, i.e., August 25, 1998. This witness has further stated that he had put his signatures on the memo, which was prepared at the time of the identification of the above articles.
PW5 Krishan Lal son of the deceased is a star witness of the prosecution. However, statement made by him does not inspire confidence as it runs contrary to the statements made by PW8 Ved Parkash and PW8 ASI Raj Pal. PW5 Krishan Lal has categorically stated that his father had left his house on May 13, 1998. He came to know about death of his father only on August 30, 1998. He has further stated that a disclosure statement was made by Amar Nath, appellant, in his presence on August 30, 1998, wherein it was stated that his father was killed by the accused on May 13, 1998. Accused Bali is also stated to have made a disclosure statement in his presence. This witness has admitted that age of his father was about 65 years. His father, when leaving the house, had told him that he was going to Jundla. When he did not return for about three months, then he started searching for him. He came to know about arrest of the accused on August 30, 1998, and then visited the Police Station. This witness has categorically CRIMINAL APPEAL NO. 453-DB OF 2001 -12- stated that before August 30, 1998, the family was not aware about death of Shri Fateh Singh.
The statement made by this witness is falsified when we look into the statement made by ASI Raj Pal (PW8), who has categorically stated that this witness along with Balkar Singh came to the Police Station on August 25, 1998, identified clothes of the deceased and at that time, all the accused were already in custody of the police. Similarly Ved Parkash (PW8) has also stated that Savitri Devi accused was arrested on August 23, 1998 and other accused were arrested on August 22, 1998. In view of above, the statement made by Krishan Lal (PW5) does not inspire confidence. It is very strange that the family would not search for the deceased for a period of three months after he left the house on May 13, 1998.
Similarly, statement made by PW7 Ajit Singh son in law of the deceased is also not believable. This witness,in the first instance , appeared before the Court on September 20, 2000, and made a statement that on September 28 or 29, 1998, he was present in his house at Patiala Chowk, Jind. Balbir Singh and his wife came to him. Richhpal was also present at that time. Both the accused enquired about Fateh Singh deceased. Then this witness asked them that Fateh Singh had gone with them one month prior and they know better about the deceased. It is further stated that accused Balbir Singh and his wife told them that they along with Amar Nath had killed Fateh Singh, to grab Rs. 18,000/- from him. It is further said that he produced both the accused before the police on that date. The cross-examination was deferred. This witness was again recalled on April CRIMINAL APPEAL NO. 453-DB OF 2001 -13- 24, 2001. When deposing in Court, lot of improvements were made by him in the statement earlier made. It was further stated that in his presence, Balbir Singh, appellant, and Savitri accused made disclosure statements, which led to recovery of a rope, Palli etc. This witness has stated that on August 27, 1998, when Balbir Singh, appellant, and Savitri Devi came to him admitting murder of Fateh Singh, he immediately informed his brothers-in-law on the same day and they also came to Police Post Jundla at 3 PM. This statement runs contrary to the statement made by PW5 Krishan Lal , who has stated that the family came to know about murder of Fateh Singh only on August 30, 1998. This witness has also stated that prior to August 27, 1998, he had been going to his in-laws' village to enquire about Shri Fateh Singh.
The making of extra-judicial confession by Balbir Singh and Savitri Devi before Ajit Singh (PW7) is not believable. This witness has not stated that he had any special relation with Balbir Singh etc. and further what was the necessity for the accused to come to Ajit Singh PW and disclose about murder of Fateh Singh.
PW9 Inspector Bhim Singh in his deposition has specifically stated that Krishan Lal and Balkar Singh sons of Fateh Singh had come to Police Station Sadar Karnal on August 25, 1998. Both identified the clothes of the deceased and also informed him that their father had gone to purchase buffaloes with Balbir Singh, appellant, and had not returned so far. He further stated that he had recorded the statements of Krishan Lal and Balkar Singh on that date and in their company, he had gone to village Jundla in search of Balbir Singh. This deposition totally demolishes the CRIMINAL APPEAL NO. 453-DB OF 2001 -14- story put up by Krishan Lal (PW5). The Investigating Officer has also stated that on August 30, 1998, he had arrested Amar Nath and Bali in the presence of Krishan Lal (PW5) and Balkar Singh, whereas Krishan Lal (PW5) has stated that he had gone to the Police Station only once.
It is case of the prosecution that Balbir Singh and Savitri Devi were produced before the Investigating Officer by Ajit Singh (PW7) on August 27, 1998, at Pakka Khera Chowk. The Investigating Officer has admitted this. However, he has categorically stated that he did not record any statement of Ajit Singh and Richhpal Singh on that date.
All the witnesses named above in view of contradictions, in their statements, cannot be believed.
Not only as above, it is doubtful as to whether dead body in question was that of deceased Fateh Singh or not. Dr. S.K.Dhatarwal (PW1) has categorically stated that dead body was partially skeletonised. Right and left hands were missing. Skin and soft tissues were present only over upper part of front of the chest, lateral aspect of the trunk and back of trunk, both arms and right fore-arm. He has categorically stated that dead body was of a middle age male. Admittedly, age of Fateh Singh was between 65 to 70 years. No DNA test was conducted to establish identity of the deceased. Furthermore, PW8 ASI Raj Pal has specifically stated that before the clothes were shown to PW5 Krishan Lal and Balkar Singh, they had not given any description of the clothes of the deceased. He has further stated that the clothes were smeared with blood and mud. PW9 Inspector Bhim Singh has also stated that from May 30, 1998, till August 25, 1998, there was no clue to identify the dead body and also as to who were the assailants. CRIMINAL APPEAL NO. 453-DB OF 2001 -15- He has further stated that PW5 Krishan Lal and Balkar Singh had not mentioned any specific colour or identity of the wearings of the deceased. He has admitted that the clothes were smeared with blood and mud and there was no identification mark on the clothes. He has further admitted that when the clothes were identified, no independent witness was present.
In view of above facts, it can be said that identification of the dead body, to be that of Fateh Singh, is in doubt.
To the contrary, in their statements recorded under Section 313 Cr.P.C., appellant Balbir Singh has categorically stated that he, Bali and Amar Nath along with six- seven other residents of the village were arrested on August 22, 1998. A false story was cooked up wherein they were roped in as accused in this case. He has further stated that Savitri accused was arrested from village Rehra on August 23, 1998, in the presence of Ved Parkash, Sarpanch. In defence, the accused summoned Sube Singh, Head Teacher of Roopgarh School, wherein Ajit Singh (PW7) was working. August 27, 1998, was a working day. It was his case that Ajit Singh was on leave on that date. The relevant record was not produced by the above witness by stating that it was lost. However, in cross-examination, this witness has admitted that no intimation was sent to the higher authorities regarding loss of record, which is of permanent nature and cannot be destroyed. Above fact also casts a doubt on the story of the prosecution.
In view of above, it can safely be said that the chain of events and the circumstances is not complete. There is no conclusive proof on the basis of which it can be said that the offence was committed by the appellants in this case. Accordingly, we allow these appeals, set aside order CRIMINAL APPEAL NO. 453-DB OF 2001 -16- of conviction and sentence and acquit both the appellants, namely, Balbir Singh and Amar Singh of the charges framed against them.
( Jasbir Singh ) Judge ( Sabina) Judge September 21, 2011 DKC