Punjab-Haryana High Court
Jasbir vs State Of Haryana on 31 October, 2014
Author: Surinder Gupta
Bench: Rajive Bhalla, Surinder Gupta
CRA-D-844-DB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No.D-844-DB of 2009
Date of Decision: October 31, 2014.
Jasbir
..........APPELLANT(s).
VERSUS
State of Haryana
........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Ashwani Gaur, Advocate
for the appellant.
Mr. Baldev Singh, Addl.A.G. Haryana.
*******
SURINDER GUPTA, J.
This is an appeal against the judgment of conviction dated 21.08.2009 and order of sentence dated 22.08.2009 passed in Sessions Case No.15 of 2008, by Additional Sessions Judge, Panipat convicting and sentencing the appellant as follows:-
Convicted for the offence Sentence
punishable under Section Rigorous Imprisonment Fine
302 IPC For life `10000/-in default of payment
of fine to further undergo
simple imprisonment for one
year.
365 IPC Four years `5000/- in default of payment
of fine to further undergo
simple imprisonment for six
months.
201 IPC Four years `5000/- in default of payment
of fine to further undergo
simple imprisonment for six
months.
SACHIN MEHTA
2014.11.13 10:19
I attest to the accuracy and
integrity of this document
Chandigarh
CRA-D-844-DB of 2009 -2-
Prosecution case, in brief, is that on 09.08.2006 Ajay Gupta, complainant, moved an application Ex.PE before Sub Inspector Jagbir Singh, Incharge, Police Post, Kishanpura (Panipat) intimating that his brother Manoj had gone on his motorcycle No.HR-06A-2592 on 08.08.2006 at 6.00 p.m. for receiving payment from Yash Textiles, Sanoli Road, but had not returned. Attempts were made to contact him on his mobile 9813011008 but in vain. The search was also made with relatives and then intimation was given in the morning on 09.08.2006 at Police Post, Kishanpura. While searching for his brother, the complainant found his motorcycle parked in front of Hotel Gold, Panipat. He suspected that some one had kidnapped his brother. On his complaint, SI Jagbir Singh made endorsement Ex.PE/3 and sent it to Police Station Chandni Bagh, Panipat, where formal FIR Ex.PE/1 was recorded.
During the course of investigation, Dilshad son of Ronak Ali (PW2) informed the police on 15.08.2006 about a dead body lying in the sewer of Sector 25 (HUDA). The dead body was taken out and was identified as that of Manoj brother of complainant. A team from the Forensic Science Laboratory (for short 'FSL'), Madhuban was called at the spot. The dead body was wrapped in a piece of cloth and a vegetable cutting knife was also found with the dead body which were sealed and taken into possession vide memo Ex.PA. On search of the dead body, a purse of black colour having driving licence of the deceased, was recovered which was taken into possession vide memo Ex.PB. The dead body was sent to PGIMS, Rohtak for post-mortem. Dr. Jitender Kumar Jakhar (PW10) conducted post-mortem SACHIN MEHTA 2014.11.13 10:19 and found that it was a decomposed body emitting foul smell. He described I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -3- the condition of thorax and abdomen and the injuries on the dead body in the post-mortem report Ex.PN as follows:-
"THORAX
1. Walls described, ribs and cartilages healthy.
2. Ploursae decomposed.
3. Larynx and tracheae described.
4. Lung right and left soft and decomposed.
5. Pericardium decomposed.
6. Heart soft and flabby.
7. Large vessels empty.
ABDOMEN
1. Abdominal wall described.
2. Peritoneum decomposed.
3. Mouth and pharynx described and Oesophagus soft and putrefied.
4. Stomach and its contents contain 10 to 20 cc mucoid material p.m. bullae present.
5. Small intestines and their contents contain semi-digested food.
6. Large intestines and their contents contains fecal matter.
7. Liver soft and putrefied.
8. Spleen soft and putrefied.
9. Kidneys soft and putrefied.
10. Bladder soft and putrefied.
11. Organs of generation external described and internal soft and putrefied.
Injuries:-
1. Both hands were found to be tied by means of rolled up strip of Khakhi cloth by two fixed knots after making three loops of the strip at the level of wrist joints. Reddish ligature mark scar corresponding to the ligating material were present around both the wrists.
2. A rolled up strip of Khakhi cloth was tied across the middle of the face in transverse plane around nostral and mouth by SACHIN MEHTA 2014.11.13 10:19 I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -4- means of a fixed knot over the back. Length of ligating material was 55 cm. A reddish ligature mark was present under the ligating material over the face and the nape of neck in the same plane. On dissection and under-lying tissues were echymosed.
3. A jute rope was found to be tied around the neck by means of single fixed knot present on the left side of neck in the middle of the neck in transverse plane. Length of ligating material was 111 cm. Loop of circle around the neck was 31 cm.
Circumference of neck at the ligature mark was 33 cm. A reddish ligature mark present around the neck corresponding to the ligating material situated 6 cm below the centre of chin in mid line which extended transversely to encircle the neck completely on right side ligature mark was 3.5 cm below the angle of right mandible, on left side 4 cm below the angle of mandible whereas on back was 5 cm below the occipital protuberance. On dissection, the underlying tissues were echymosed. Cornua of hyoid bone were fractured on both sides on left 5 mm below the tip and on right side 8 mm below the tip. Fractured end showed infiltration of blood.
4. A stab wound of size 2.5 x 1 cm was present over the front of the chest at the level of 3rd intercostal space. Situated 3 cm away from midline, the margins were reddish and clean cut. The wound was found directed anteroposteriorly to pierce the apex of right lung through and through. The chest cavity was full of blood.
5. A stab wound of size 2 x 1 cm present over the front of the chest left side, corresponding to 2nd intercostal space, situated 6 cm away from midline. The margins of wound was reddish and clean cut. The wound was found directed anteroposteriorly to pierce the apex of left lung through and through. The chest cavity was full of blood.
REMARKS BY MEDICAL OFFICER.
It was a dead body of male individual. Cause of death in my opinion was smothering and strangulation by ligature coupled SACHIN MEHTA 2014.11.13 10:19 I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -5- with stab wounds over the chest wall."
The knife recovered near the dead body was sent to the FSL, Madhuban and found to be blood stained vide report Ex.PX.
On 12.09.2006, investigation of the case was entrusted to SI Zile Singh (PW18). He put the IMEI number of the mobile belonging to deceased i.e. 9813011008 under surveillance. On 19.10.2006 he obtained call details of this mobile (Ex.PS/1), which was taken into possession vide recovery memo (Ex.P5).
On 26.10.2006 the investigation of this case was entrusted to SI Vijay Singh, CIA Staff, Panipat (PW19). He went to the house of Parmod (PW8) and took into possession Nokia-2300 mobile set allegedly belonging to the deceased, vide memo (Ex.PH). Parmod disclosed to SI Vijay Singh that he purchased this mobile from Gulati STD and Mobile Shop at Panipat. SI Vijay Singh reached the shop of Shyam Gulati (PW9) and checked his record. He found an entry of the sale of above mobile phone and took the photocopy of that entry into possession vide memo Ex.PL.
On 27.10.2006, the appellant was produced before SI Vijay Singh by Rohtash Sharma, Municipal Councillor, Panipat and he was arrested. Rohtash Sharma (PW16) also got recorded his statement, wherein he stated about an extra judicial confession made by the appellant before him. The appellant got demarcated the place of occurrence vide his statement (Ex.PF) and site plan (Ex.PU) was prepared. The appellant vide memo Ex.PG demarcated the place where he had thrown the dead body of Manoj.
SACHIN MEHTA 2014.11.13 10:19
On 29.10.2010, the appellant suffered a disclosure statement I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -6- that he had kept concealed an amount of `5000/-, removed from the pocket of deceased Manoj, near Sector-25 HUDA Park, Panipat. As per his disclosure, recovery of an amount of `5,000/- wrapped in a polythene was effected from a place near Sector-25 HUDA Park, Panipat and taken into possession vide recovery memo (Ex.PG). A rough site plan of the place of recovery (Ex.PG/1) was prepared.
After completion of investigation, challan against the appellant was presented in the Court of the Judicial Magistrate, Panipat. The copies of documents as required under Section 207 Code of Criminal Procedure (for short 'Cr.P.C.') were supplied to the appellant. As a prima facie case for offence punishable under Section 302 IPC was disclosed, the case was committed to the Court of Sessions for trial vide order dated 23.01.2007.
The trial Court framed charges against the appellant for the offences punishable under Sections 365, 302 and 201 IPC to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined 20 witnesses. The complainant Ajay Gupta was examined as PW4. Dilshad, who had located the dead body and intimated the police, appeared as PW2. Rohtash Sharma appeared as PW16 and has stated that the appellant suffered an extra judicial confession before him and at the instance of appellant, he produced him before the police. Dr. Jitender Kumar Jakhar, who conducted the post- mortem examination of the deceased, was examined as PW10. PW1 Vikram, Head Constable Dharambir Singh PW12, ASI Rajbir Singh PW13, Constable Kuldeep Singh PW14, Constable Vimal PW17, remained associated with the SACHIN MEHTA 2014.11.13 10:19 investigation of the case at one stage or the other. Constable Jagbir Singh, I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -7- Draftsman PW20 prepared scaled site plan Ex.PV of the place of occurrence. PW3 Qayaum was examined to prove that the appellant had come to sell the mobile phone Nokia-2300 to him but this witness turned hostile. Sarabjit Singh was examined as PW5 to prove that Parmod PW8 was his employee whom he had given sim of mobile number 9812204700 which he had been using in mobile set Nokia-2300 purchased by him of his own. Ashok Aggarwal was examined as PW6, who deposed that he had seen the appellant carrying a heavy big plastic bag on his motorcycle on the night of 8th of August 2006. He identified him in the light of his scooter. Avinash Chaudhary PW7 remained associated with the police during investigation of the case and has stated that in his presence, the appellant had identified the place where he murdered deceased Manoj and the place where he had thrown his dead body. PW8 Parmod has stated that he purchased Nokia-2300 mobile from Gulati STD Mobile Shop with IMEI No.353773007946473 which he used for his mobile No.9812204700. This mobile phone was taken into possession by the police on 26.10.2001 vide recovery memo Ex.PH. Shyam Gulati, owner of Gulati STD and Mobile Shop from where PW8 Parmod had purchased Nokia-2300 mobile, appeared as PW9 and deposed that a mobile Nokia-2300 IMEI No. 353773007946473, was purchased by him from a person, who was friend of Parmod son of Dhan Singh. On the same day, he sold the said Nokia-2300 mobile phone to Parmod son of Sompal (PW8). This witness was declared hostile as he did not support his statement made under Section 161 Cr.P.C. that he purchased mobile Nokia- 2300 from the appellant. He produced on file the copy of original record SACHIN MEHTA 2014.11.13 10:19 relating to purchase of Nokia-2300 as Ex.PK and Ex.DB. Parmod son of I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -8- Dhan Singh appeared as PW11 but he did not support the prosecution case that he had introduced the appellant to Shyam Gulati (PW9) for the sale of mobile phone Nokia-2300. Investigating Officer SI Jagbir Singh appeared as PW15, SI Zile Singh as PW18 and SI Vijay Singh as PW19.
The appellant denied and controverted the incriminating evidence appearing against him when confronted in his statement recorded under Section 313 Cr.P.C. and pleaded his false implication. He has stated in his defence as follows:-
"I am innocent. I was detained by the police at 2/3 occasions in this case prior to showing my arrest and police had obtained my signatures on several blank papers/notebooks etc. Later on, police used these documents for creating false evidence against me to implicate me in this case."
The appellant did not produce any defence evidence.
Learned counsel for the appellant has argued that the case of the prosecution is based on circumstantial evidence. The prosecution has failed to complete the chain of circumstantial evidence to make out that the appellant had murdered the deceased. In order to bring home the charges against the appellant, the prosecution has relied upon the following evidence:-
(i) Ashok Aggarwal (PW6) has stated that on 08.08.2006 at about 11.00 p.m. he was coming from HUDA, Panipat to Sanoli road and had seen the appellant carrying a heavy and big plastic bag of white colour on his motorcycle. He identified the appellant in the light of his scooter and informed the police about this fact. The statement under Section 161 Cr.P.C.SACHIN MEHTA 2014.11.13 10:19 I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -9-
by this witness, was recorded on 22.10.2006 i.e. after more than two months and fourteen days of the incident and two months and seven days after discovery of the dead body. He was known to the deceased and his family and in case, he had witnessed the appellant carrying a suspicious big bag on his motorcycle on 08.08.2006, he must have stated this fact to the complainant and his family. His silence for two and half months reflects that he is a procured witness.
(ii) The prosecution has relied on the extra judicial confession of the appellant made before Rohtash Sharma (PW16). The making of disclosure statement by the appellant before this witness is doubtful as the appellant does not belong to the community of this witness or had any acquaintance or relation with him. It is doubtful that appellant who met this witness for the first time on 27.10.2006, made an extra judicial confession, gave him every minute detail of incident and got himself arrested through this witness. This witness has stated that after handing over the appellant to the police, he did not help him at any stage. The above fact makes the statement of this witness highly doubtful.
(iii) The police allegedly recovered `5000/- on the basis of disclosure statement of the appellant but this piece of evidence, if believed, in no manner connects the appellant with the offence. It is not the case of the prosecution that deceased had an amount of `5000/- with him at the time of his death and same was taken out by the appellant. The purse of deceased was found in his pocket when the dead body was recovered. In the absence of any evidence to connect the amount of `5000/- allegedly recovered from SACHIN MEHTA 2014.11.13 10:19 the appellant, with the deceased, this evidence cannot be taken as a I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -10- circumstance appearing against him.
(iv) The prosecution had tried to connect the appellant with the mobile phone Nokia-2300 of the deceased. The case of the prosecution is that the deceased was in possession of a mobile No.9813011008 and was using the sim with one Nokia-2300 mobile phone. Firstly, there is no evidence that deceased owned or was in possession of mobile No.9813011008 or that the phone was in the name of any of his family member. Secondly, this fact is not proved that the mobile Nokia-2300 was sold by the appellant. The police has relied on the record of Gulati STD and Mobile Shop of PW9 Shyam Gulati to prove this effect by producing a copy of the entry in register (Ex.PK). Regarding the entry at point 'A' on the copy of register (Ex.PK), this witness has stated that he made this entry at the instance of police in the police station. He has rather produced Ex.DB, the copy of the register regarding the purchase of Nokia-2300 mobile phone vide transaction dated 06.09.2006, where the name of appellant does not figure as seller of Nokia-2300 mobile phone.
(v) The police prepared the memos of the place where the murder allegedly took place and the place where the dead body was dumped after murder, on the disclosure statement of the appellant, which are not admissible in evidence. The police has not made any recovery on the basis of disclosure statement of the appellant so as to make it admissible under Section 27 Evidence Act.
Learned counsel for the appellant has argued that the chain of circumstantial evidence led by the prosecution, is not complete and is not SACHIN MEHTA 2014.11.13 10:19 sufficient to arrive at a conclusion about the guilt of the accused and to prove I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -11- the charges framed against him. The trial Court has committed a grave error of law and fact while relying upon the circumstantial evidence to arrive at a conclusion that the prosecution has proved the complete chain of circumstances of committing murder of the deceased by the appellant.
Learned State counsel has argued that circumstantial evidence led by the prosecution is reliable. The extra judicial confession made by the appellant before PW16 Rohtash Sharma cannot be discarded. PW16 was a Municipal Councillor. The appellant had taken his assistance for surrendering before the police. This witness had no relation with the complainant party or animus against the appellant. The mere fact that the appellant was not known to him, related to him or had any acquaintance with him, does not come in the way of placing reliance on his statement that extra judicial confession was made by the appellant before him. The recovery of currency notes of `5000/- and sequence of evidence relating to sale of mobile phone Nokia-2300 by the appellant complete the chain of circumstantial evidence. The statement of Ashok Aggarwal (PW6) that he had seen the appellant on 08.08.2006 carrying a big bag on his motorcycle, further strengthen the circumstantial evidence led by the prosecution.
We have considered the submissions of learned counsel for the appellant, learned State counsel and have carefully perused the record.
The case of the prosecution is based on circumstantial evidence as no one had seen the appellant committing the murder of the deceased. While dealing with such type of evidence, the circumstances from which the conclusion of guilt is to be drawn, should in the first instance be fully SACHIN MEHTA 2014.11.13 10:19 established, and the facts so established, should be consistent with only one I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -12- hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of circumstantial evidence is complete and does not leave any doubt in the mind of the Court. Hon'ble Apex Court in the case of Gambhir Singh Vs. State of Maharashtra (1982) 2 Supreme Court Cases 351, has discussed the parameters for examining the circumstantial evidence before drawing inference of guilt of accused as follows:-
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be congently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but also be inconsistent with his innocence."
In Ramreddy Rajesh Khanna Reddy Vs. State of A.P. (2006)10 Supreme Court Cases 172, Hon'ble Apex Court again considered the case of conviction based on circumstantial evidence and observed as under:-
"26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events SACHIN MEHTA 2014.11.13 10:19 I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -13- as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence."
When examined in the light of the above test laid down by the Hon'ble Apex Court, the circumstantial evidence led by the prosecution in this case is not a definite pointer towards the guilt of the accused. Firstly, we take the statement of PW16 Rohtash Sharma, who has deposed about the extra judicial confession made by the appellant before him. The trial Court on the basis of statement of this witness, has reached a conclusion that accused had voluntarily made an extra judicial confession and has relied upon the same. Certain facts have prominently appeared in the testimony of this witness which are as follows:-
(i) The appellant was having no acquaintance
with this witness or was related with him.
(ii) The appellant was unknown to him and met
him for the first time on 22.10.2006.
(iii) Rohtash Sharma PW16 was aware about the
murder of the deceased and discovery of the dead body.
(iv) He did not help the appellant after he
produced him before the police. He never visited the
police station in this case.
(v) He had no acquaintance with the police or his
any relative was posted in Police Station, Chandni Bagh, Panipat to which the case is related.
The question which arises for consideration is why the SACHIN MEHTA 2014.11.13 10:19 appellant will chose to make an extra judicial confession before a stranger. I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -14- Usually the person, who has committed a crime tries to take help of a person who is either known to him or from whom he has some reason to believe that he would get assistance. An extra judicial confession can be accepted and can be basis of conviction, if it passes the test of credibility, inspires confidence and there are other circumstances on record to support it. Hon'ble Supreme Court in case Gura Singh Vs. State of Rajasthan 2001(2) Supreme Court Cases 205, while discussing the scope of reliance on extra judicial confession has observed as follows:-
"It is settled position of law that extra- judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement.
Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [1954 SCR 1098], this Court again in Maghar Singh v. State of Punjab [AIR 1975 SC 1320] held that the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. SACHIN MEHTA [AIR 1985 SC 1678] this Court cautioned that it is not 2014.11.13 10:19 I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -15- open to the court trying the criminal case to start with presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra-judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession."
In case of Balwinder Singh Vs. State of Punjab 1995 Supp (4) SCC 259, Hon'ble Supreme Court observed as follows:-
"An extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
In para 42 of Munna Kumar Upadhyaya Vs. State of A.P. Through Public Prosecutor 2012(6) SCC 174, Hon'ble supreme Court spelled out the principles relating to examination of extra-judicial confession as follows:-
"Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it."SACHIN MEHTA 2014.11.13 10:19 I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -16-
When examined in the light of above principles, we find that circumstances surrounding the statement of PW16 Rohtash Sharma make it shaky and unworthy of reliance. A look at the evidence on record shows that the police had already reached the stage of nominating the appellant as accused in this case before his arrest on 27.10.2006. We got a hint of this fact from the testimony of PW6 Ashok Aggarwal, who has stated that on 22.10.2006 he was told by the police that appellant might be a suspect in this case. Police had placed the mobile No.9813011008 under surveillance and got the details of the phone calls on 19.10.2006. The police was already aware of the IMEI number of that mobile. After connecting the link, the mobile was taken into possession, vide memo Ex.PH on 26.10.2006 i.e. before the arrest of the appellant. On 22.10.2006, the statement of PW3 Qayaum was recorded under Section 161 Cr.P.C. by the police informing that Nokia-2300 mobile was given for sale to said Qayaum by appellant and then taken back on 26.08.2006. The police had got the documents relating to sale of mobile Nokia-2300 by the appellant when it recorded the statement of Shyam Gulati (Ex.PJ) on 26.10.2006 and took into possession the copy of his record, vide memo Ex.PL. All the above evidence collected by the police during investigation, reflect that the investigation of the police had already narrowed down to the appellant.
Rohtash Sharma (PW16) was not the Municipal Councillor of the area of appellant. While on the other side, the deceased was the resident of his (Rohtash Sharma's) ward. About his acquaintance and relations with the appellant, Rohtash Sharma PW16 has stated as follows:- SACHIN MEHTA 2014.11.13 10:19
"Jasbir Saini accused does not belong to my community.I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -17-
He is not related with me at all. The accused had no acquaintance with me prior to 27.10.2006. The accused came to me on that day for the first time and he was unknown to me. New Housing Board Colony is situated at a distance of about 2 km from my house. I do not know whether the accused is resident of House No.2295, New Housing Board Colony, Sector 11-12, Panipat. Volunteered- I had got written whatever had been told to me by the accused. I never visited the house of the accused. From the area of New Housing Board Colony and Sector 11-12, wife of Ramesh Malik is Municipal Councillor. ........................................................................ ............................................................................................ It is correct that family of deceased is resident of my ward/area. I have no visiting terms with the family of deceased. I know that deceased was missing since 8.8.06."
It is doubtful that the appellant would have gone to PW16 Rohtash Sharma with whom he had no acquaintance or belief of getting any assistance. There is nothing in the statement of Rohtash Sharma that on hearing the entire story, he assured the appellant of any help in the matter. The mere fact that this witness was a Municipal Councillor of the area of victim, could be no reason for the appellant to repose confidence in him. Extra judicial confession was allegedly made after two months and fourteen days of the occurrence and finds no corroboration.
The testimony of PW16 Rohtash Sharma finds no corroboration from the evidence on file, making it a fragile piece of evidence which lacks credibility to make it the sole basis for conviction of appellant for the SACHIN MEHTA 2014.11.13 10:19 offence of committing murder.
I attest to the accuracy andintegrity of this document Chandigarh CRA-D-844-DB of 2009 -18-
The prosecution has further relied upon the disclosure statement made by the appellant pointing out the place of occurrence and the place where he disposed of the dead body. The place where the dead body was disposed of was already known before the statement of appellant was recorded on 27.10.2006. The police did not find any incriminating evidence at the place where the appellant pointed out the committing of murder of deceased. The disclosure statements by the appellant Ex.PF and Ex.PG, as such, are not admissible in evidence.
Another circumstance against the appellant is the recovery of `5000/- made as per his disclosure statement Ex.PF. The police found currency notes of `5000/- from below a stone near the wall on the north-east corner of the park of Sector-25, Panipat. We are reluctant to rely upon this recovery, firstly because no sane person will keep an amount of `5000/- under a piece of stone at a far of place for a period of about two and half months after the crime. There is no mention in the testimony of either Vikram or brother of deceased Ajay Kumar complainant that the deceased had `5000/- with him on 08.08.2006 when he had gone to collect payment in the market at 5.30 p.m. The deceased had gone on his motorcycle to take payment but there is no evidence that deceased had received `5000/- from any person. Investigating Officer SI Vijay Singh while appearing as PW19 stated "it had not come in any investigation that from which particular person the deceased has received the money on that particular date." Even otherwise, the amount of `5000/- recovered by the police as per the memo (Ex.PG) cannot be connected with the deceased or taken as a circumstance SACHIN MEHTA 2014.11.13 10:19 for the murder of the deceased by the appellant.
I attest to the accuracy andintegrity of this document Chandigarh CRA-D-844-DB of 2009 -19-
The next circumstantial evidence relied by the prosecution is the testimony of PW6 Ashok Aggarwal, who deposed that on 08.08.2006 at about 11.00 p.m. he had seen the appellant carrying a big heavy white coloured plastic bag on his motorcycle. This witness belongs to the caste of the deceased and is acquainted with his family. He came to know about the murder of deceased on 15.08.2006 and had visited the place from where the dead body was recovered. His statement under Section 161 Cr.P.C. was recorded by the police on 22.10.2006 i.e. after a period of more than two months and fourteen days of the occurrence. There is no explanation as to why this witness remained silent for such a long period. In natural course, he would have immediately disclosed the information available with him to family of the deceased or to the police, the moment, he came to know about the murder of the deceased and visited the place from where the dead body was recovered. In his cross-examination, he has stated that he had visited the place from where the dead body was recovered. Only on 22.10.2006, he was told by the police that 'the appellant might be the suspect of this case, then gave statement Ex.DA, to the police'. Prior to 22.10.2006, he did not disclose this fact to the family members of the deceased. This makes his testimony doubtful and unworthy of reliance.
The other evidence which the prosecution has relied is mobile phone brand Nokia-2300 which as per the prosecution belongs to the deceased and was sold by the appellant to Shyam Gulati PW9. The police recovered this mobile from Parmod son of Sompal PW8. While appearing as PW9 Shyam Gulati has deposed that he purchased Nokia-2300 from a friend SACHIN MEHTA 2014.11.13 10:19 of Parmod son of Dhan Singh (PW11). The testimony of this witness I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -20- nowhere identifies the appellant as the person who sold Nokia-2300 mobile to Shyam Gulati PW9. Parmod son of Dhan Singh had turned hostile and has denied that he ever came to sell mobile phone of Nokia company at the shop of Shyam Gulati. The police has taken the copy of register maintained by Shyam Gulati and has produced the same on file as Ex.PK to prove that this mobile was purchased on the identification of Parmod (PW11) from the appellant. There is writing in the register at point 'A' to this effect which is reproduced as follows:-
"Mobile Nokia 2300' IMEI No.353773007146473 Purchased on the identity of Parmod from Jasbir Saini, NHDC."
This witness has stated in his cross-examination that above entry at point 'A' in Ex.PK was made by him on the asking of police while sitting in the police station. He had produced original entry of the purchase of Nokia-2300 mobile as Ex.DB which reads as follows:-
"Model Nokia 2300 IMEI No.353773007146473 Friend of Parmod No.9813681632 Dated 06.09.2006."
The testimony of this witness if relied goes on to show that prosecution has tried to connect the appellant with Nokia-2300. The evidence produced by the prosecution, even if, believed fails on this account as there is nothing on record to prove that the deceased was the owner of Nokia-2300 mobile or he was using this mobile phone for his mobile No.9813011008. The prosecution has neither produced any evidence to prove that the mobile No.9813011008 was issued in the name of the SACHIN MEHTA 2014.11.13 10:19 I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -21- deceased or any of his family member and that the mobile Nokia-2300 was purchased by the deceased or it belonged to the deceased.
We have cautiously and carefully examined the evidence led by the prosecution, which when tested as per the well settled principles relating to circumstantial evidence fails to bring home the guilt of the appellant and prove the charges framed against him. Hon'ble Supreme Court in case of Tarsem Kumar Vs. Delhi Administration 1994 Supp (3) Supreme Court Cases 367, while striking a note of caution while examining circumstantial evidence, has observed as follows:-
"Where the prosecution purports to prove the charge against the accused on basis of direct evidence-- oral or documentary, then the evidence so produced can be considered by the court on the well-recognised principles, including as to when the first information report of the occurrence was lodged; whether the accused was named therein and the version of the occurrence which is being disclosed in the court, was disclosed in the first information report or not. The witnesses who have supported the case of the prosecution are trustworthy or not. But in a case which is based on circumstantial evidence neither the accused is known nor the manner of the occurrence is known to the persons connected with the victim. Even the first information reports, in respect of such cases are lodged after a considerable delay in many cases, because an offence has been committed, itself is not known to anyone. In the present case itself, the murder was perhaps committed on 16th and the factum of murder was known in the night of 18th, when foul smell started coming out of the house in question. In this background SACHIN MEHTA the circumstances discovered by the Investigating Officer 2014.11.13 10:19 I attest to the accuracy and integrity of this document Chandigarh CRA-D-844-DB of 2009 -22- during the course of investigation and proved by the prosecution during the trial have to be cautiously examined for purpose of recording a verdict of guilt or giving benefit of doubt to the accused."
As a sequel of our discussion above, we are of considered opinion that the prosecution has failed to prove the guilt of the appellant as the circumstantial evidence led by the prosecution is not conclusive in nature so as to exclude every hypothesis but the one about the guilt of the appellant. The prosecution has also failed to complete the chain of link evidence. In the above facts and circumstances, we have no hesitation to arrive at a conclusion that the trial Court has committed a grave error of law and facts while recording a conclusion about guilt of the appellant. Consequently, this appeal is accepted. The impugned judgment of conviction and order of sentence passed by the trial Court are set aside and the appellant is acquitted of the charges framed against him. The appellant, who is in custody be set at liberty.
( RAJIVE BHALLA) ( SURINDER GUPTA )
JUDGE JUDGE
October 31, 2014.
Sachin M.
SACHIN MEHTA
2014.11.13 10:19
I attest to the accuracy and
integrity of this document
Chandigarh