Punjab-Haryana High Court
Mandeep And Another vs State Of Haryana on 1 April, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 865-DB of 2008
DATE OF DECISION : 01.04.2011
Mandeep and another
.... APPELLANTS
Versus
State of Haryana
..... RESPONDENT
Crl. A. No. 137-DB of 2009
DATE OF DECISION : 01.04.2011
Dharambir
.... APPELLANT
Versus
State of Haryana
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE M. JEYAPAUL
Present: Mr. N.K. Sanghi and Mr. Aditya Sanghi, Advocates,
for the appellants
(in Crl. A. No. 865-DB of 2008)
Mr. Vaibhav Jain and Mr. Vishal Rattan Lamba, Advocates,
for the appellant
(in Crl. A. No. 137-DB of 2009)
Mr. S.S. Randhawa, Addl. A.G., Haryana.
***
SATISH KUMAR MITTAL , J.
1. This judgment shall dispose of Criminal Appeal No. 865-DB of 2008, filed by accused Mandeep and Karambir (hereinafter referred to as Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -2- `A-1 and A-2' respectively) and Criminal Appeal No. 137-DB of 2009, filed by accused Dharambir (hereinafter referred to as `A-3'), against their conviction and sentence.
2. Appellants along with one Shakuntala (mother of A-3) were tried by the court of Additional Sessions Judge, Hisar, for the offences under Sections 364 read with Section 120-B, 302 read with Section 34 and 201 IPC, for hatching a criminal conspiracy, kidnapping Subhash and then after causing his murder, causing the evidence of said offence to disappear with intention of screening them from legal punishment. Vide judgment dated 17.11.2008, passed by the trial court, the appellants have been convicted under Section 364 read with Section 120-B, 302 read with Section 34 and 201 IPC, whereas accused Shakuntala has been acquitted of the charges. Vide order dated 20.11.2008, the appellants have been sentenced to undergo rigorous imprisonment for life and to pay a fine of ` 5,000/- each, in default to undergo rigorous imprisonment for a period of three months each under Section 302 read with Section 34 IPC; rigorous imprisonment for five years and to pay a fine of ` 2,000/- each, in default to undergo rigorous imprisonment for a period of one month each under Section 364 read with Section 120-B IPC; rigorous imprisonment for three months each and to pay a fine of ` 2,000/- each, in default to undergo rigorous imprisonment for one month under Section 201 IPC. Case of the prosecution
3. (i) On 21.7.2005, when Avtar Singh (PW.7), Sarpanch of village Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -3- A.P. Bir, District Hisar, along with Bhim Dev, Member Panchayat, was going from Hisar to his village, he saw dead body of an unknown person lying in the canal near the 4th Mile canal bridge. Except the underwear, there was no cloth on the body. It was swollen and decomposed. On information given by him to the police of Police Station Sadar Hisar, on telephone, ASI Sajjan Singh (PW.13) reached the spot, recorded the statement (Ex.P12) of Avtar Singh and made his endorsement (Ex.P26) thereon at 1.10 PM, on the basis of which DDR No. 23 dated 21.7.2005 was recorded at 1.30 PM. The dead body was taken out from the canal and was sent to the General Hospital, Hisar, where Dr. Davinder Sindhu referred the dead body for post mortem examination to PGIMS, Rohtak.
(ii) On 22.7.2005, Dr. Rajat Pankaj (PW.11) conducted post mortem examination on the dead body of an unknown male. According to him, the body was wearing only an underwear with elastic waist, which was smudged with blood and mud. The body was emitting foul smell. Maggots of size .5 x 1 cm were crawling at places. Scalp hairs peeled off except a few tufts of black and occasional grey hair 3 to 4 cm long and easily pulled off at slight traction. Epidermis peeled off all over the body. Hands and feet deglaved, ear, nose, lips, tongues deformed, face not identifiable. The following injuries were noticed on the dead body :
1. Ligature mark and ligature material. A ligature mark running all around the neck with an area of interruption on the left side of neck 3 cm below left angle of mandible width of ligature mark 2.4-3 cm at places and situated 2.5 cm below right angle Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -4-
of mandible and 3 cm below left angle of mandible and 2.5 cm in mid-line below chin and 2 cm below external occipital protuberance. On dissection, underlying soft tissue ecchymosed. On further dissection, larynx and tracheal structure congested.
A ligating material in the form of a white banyan with trademark Lux Venus 95 cm on one aspect and on back side of this flap trademark Regd. trade mark of Vishavnath Hosary Mills Limited alongwith which was entangle a polythene sheet of white colour was present. In the neck region a fixed note was pre present on the left side. The inner circumference 34 cm and neck circumference of 37 cm. There were two free ends of lygating material emitting material from knot measuring 24 cm and 18 cm. The width of legating material was 3 cm.
2. A reddish diffuse contusion of size 5 x 3 cm present over the vertex region of skull. On dissection, underlying scalp layer ecchymosed. There were a linear fracture radiating from the vertex region interiorly, the fracture radiates for a distance of 8 cm on frontal bone from vertex to 6 cm just above left supracillary arch. Another fracture radiating latterly to left over parital and temporal bones for a distance of 12 cm from vertex to 2 cm above auditing meatus. Another fracture radiating posterorly for a distance of 7 cm on the right parital bone 6.5 cm above occipital protuberance. The fracture segment showed infiltration of blood in trabicula.
3. A reddish diffuse contusion of size 6 x 4 cm on the chin in mid-
line on dissection underlying tissue ecchymosed and there was fracture of mandible in the middle of body of mandible. Going through and through. The fractured segments showed infiltration of blood.
Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -5-
4. A reddish diffuse contusion of size 5 x 3 cm over the chest in mid-line situated 5 cm below sternal angle on dissection underlying tissues were ecchymosed. On further dissection there was fracture of body of sternum in its middle half. Fracture segment showed infiltration of blood.
In the opinion of the doctor, the cause of death was strangulation by ligature coupled with injuries, mentioned above, which were ante mortem in nature. Further, according to the doctor, the dead body was of a young adult male. The duration between death and post mortem was within a week. During the post mortem examination, the doctor took out two pieces of plavical for DNA test, which were sealed in a jar and then handed over to the police along with carbon copy of the Post Mortem Report. Further, according to the doctor, injuries in the Post Mortem Report are possible by danda blows.
(iii) After receipt of the Post Mortem Report, the police registered FIR No. 520 dated 22.7.2005 (Ex.P19) at Police Station Sadar Hisar under Section 302/201 IPC, against unknown person.
Investigation
4. (i) On 27.7.2005 at 11.30 AM, Kuldeep son of Nani Ram (PW.8) made a statement (Ex.P13) to SI Mahender Singh (PW.12) at Bus Stand, village Niyana, to the effect that they were six brothers. Three brothers, i.e. he (Kuldeep), Suresh (PW.9) and Subhash (deceased) were living jointly, whereas three other brothers, namely Ishwar, Ajit and Vijinder, were living together separately. About six years earlier, his brother Subhash, A-3 and one Hawa Singh were apprehended in a case under the NDPS Act. His Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -6- brother Subhash and Hawa Singh were acquitted, whereas A-3 was convicted and sentenced. In that case, A-3 was released on parole for one month. On 16.7.2005 at about 7.30 PM, when he (Kuldeep) and his brother Subhash were present at Bus Stand of their village Niyana, a Maruti car came there, in which A-3, A-1, A-2 and one Naveen son of Nafe Singh (who has been declared proclaimed offender) were sitting. A-3, who was driving the car, stopped the car and asked Subhash to accompany them to Hisar to see his would-be wife. Thereupon, Subhash along with the aforesaid accused persons sat in the car. It was further stated by Kuldeep that thereafter, he and his family members waited for 2-3 days, but when his brother Subhash did not return, he made enquiries and came to know that after availing the parole, A-3 had surrendered in the jail. When he and his brother Ishwar enquired from village Narnaund and Juglan, they heard that all the aforesaid four accused were vagabond and bad element persons. They had taken their brother by inducing him with intention to kill him. He further stated that he also heard that when his brother Subhash, A-3 and Hawa Singh were confined in jail, a quarrel/altercation had taken place between Subhash and A-3 and he is fully confident that the accused might have killed his brother. Action be taken against them.
(ii) On the basis of the said statement, an FIR No. 534 dated 27.7.2005 under Section 364/34 IPC was registered at Police Station Sadar Hisar. (Subsequently, in view of the fact that with regard to the dead body of an unknown person, which was lateron alleged to have been identified as Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -7- that of Subhash, an FIR had already been registered, this FIR was cancelled).
(iii) It is further case of the prosecution that on 26.7.2005, i.e. one day prior to the recording of the aforesaid statement of Kuldeep, A-1 and A- 2 went to the residence of Suresh (PW.9), another brother of deceased Subhash, who was jointly residing with complainant Kuldeep and deceased Subhash, and made extra judicial confession before him to the effect that on 16.7.2005 at about 7.30 PM, A-1, A-2, A-3 and accused Naveen went to Bus Stand, Niyana, from where they took Subhash on the pretext of going to see would-be wife of A-3 and when they were going towards Hisar in the car, a scuffle took place between Subhash and A-3. Thereafter, they took Subhash on Talwandi Rana minor and after giving beatings to him with danda, they strangulated him with the belt of car, and after covering his mouth with a polythene, they threw him in the canal after removing his pants.
(iv) On 1.8.2005, the police recorded the statement of Suresh with regard to the aforesaid confession.
(v) According to the prosecution, on 27.7.2005, A-1 surrendered in the court. On 30.7.2005, in the morning, after taking the remand of A-1, he was interrogated by the police in the court complex itself and his disclosure statement (Ex.P1) was recorded. Subsequently, on the same day, at Bus Stand, Hansi, his second disclosure statement (Ex.P7) was recorded, wherein he stated regarding the maruti car used in the offence, concealing of Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -8- the pants of deceased Subhash and a danda. He also stated that one day earlier to the occurrence, he, A-2, A-3 and accused Naveen had met together in the house of A-3, where mother of A-3 told that Subhash had harassed them very much and he be done to death. He further stated that after killing Subhash and throwing him in the canal, all the four accused again went to the house of A-3, where mother of A-3 served them meals and paid ` 7,000/- for their expenditure. On the basis of this disclosure, Shakuntala (mother of A-3) was also added as an accused under Section 120-B IPC. In pursuance of his disclosure statement (Ex.P7), A-1 got recovered a Maruti car (not produced in the court, therefore, not exhibited) from a field of village Petwar, which was taken into possession vide memo Ex.P9, in the presence of SI Bhoop Singh (PW.6) and Kuldeep (PW.8). A-1 also got recovered a danda (Ex.P14) and pants (Ex.P15) of the deceased, which were taken into possession vide recovery memo Ex.P10, in the presence of the same witnesses. Thereafter, on the same day, i.e. on 30.7.2005, A-2 was also arrested. He got recovered a danda (Ex.P25), which was taken into possession vide recovery memo Ex.P11, in the presence of both the aforesaid witnesses.
(vi) On 1.8.2005, A-3, who was in custody in a case under the NDPS Act, was arrested in this case, after taking his production warrant. On interrogation, he suffered disclosure statement (Ex.P22), and got recovered a danda (Ex.P24) from the bushes near the canal, which was taken into possession vide recovery memo (Ex.P23), in the presence of Constable Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -9- Vijay Kumar. On the same day, accused Shakuntala was also arrested in this case. Nothing was recovered from her.
5. After completion of investigation, the police filed challan against the accused and charges under Sections 364 read with Section 120- B, 302 read with Section 34 and Section 201 IPC were framed against all the accused, to which they did not plead guilty and claimed trial. Prosecution evidence
6. In support of its case, the prosecution examined thirteen witnesses.
7. PW.1 HC Miya Singh proved the photographs (Ex.P1 and Ex.P2) of the dead body.
8. PW.2 EHC Maya Ram is the formal witness, who took the dead body to the Hospital and proved the parcel (Ex.P3) handed over by the doctor after the post mortem examination of the deceased.
9. PW.3 Balwan Singh Patwari proved the scaled site plan (Ex.P4) pertaining to village Beer Babran.
10. PW.4 Mange Ram, Clerk, Central Jail, Hisar, proved that A-3, who was confined in Central Jail, Hisar, in a case under the NDPS Act, remained on parole from 23.6.2005 to 22.7.2005.
11. PW.5 HC Jagdish Parshad is a formal witness, who tendered into evidence his affidavit Ex.P6 regarding non tampering of the case property.
12. PW.6 Sub Inspector Bhup Singh, a witness to recoveries, Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -10- effected at the instance of A-1 and A-2, proved the disclosure statements, made by A-1 and A-2, and the subsequent recoveries at their instance.
13. PW.7 Avtar Singh, Sarpanch, who noticed the dead body of an unknown person on 21.7.2005 and informed the police, proved his statement (Ex.P12) in this regard.
14. PW.8 Kuldeep, brother of deceased Subhash, a witness to the last seen, reiterated the facts, as stated by him in his statement (Ex.P13), proved the recoveries effected in his presence and fully supported the case of the prosecution.
15. PW.9 Suresh, another brother of deceased Subhash, who is a witness of extra judicial confession, proved the alleged extra judicial confession made by A-1 and A-2 before him.
16. PW.10 Dilbag Singh, retired Inspector, is a formal witness, who prepared the report under Section 173 Cr.P.C.
17. PW.11 Dr. Rajat Pankaj, who conducted post mortem examination on the dead body of an unknown person, has proved the Post Mortem Report Ex.P18.
18. PW.12 Mahender Singh SI, the Investigating Officer in the case, proved all the relevant documents, prepared by him during investigation of the case.
19. PW.13 SI Sajjan Singh conducted the initial investigation in the case. He proved the statement (Ex.P12) made by Avtar Singh Sarpanch, the inquest proceedings (Ex.P17) prepared by him, rough site plan (Ex.P27) of Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -11- the place, where the dead body of an unknown person was lying and the FIR (Ex.P19).
Statements of accused under Section 313 Cr.P.C.
20. In their statements under Section 313 Cr.P.C., all the four accused denied the incriminating evidence appearing against them. They pleaded their innocence and took the plea that they have been falsely implicated in this case due to party faction in village Niyana between the complainant and A-3. However, no evidence was led by the accused in their defence.
The findings of the trial court
21. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the evidence of last seen, extra judicial confession, motive, recovery and identification of the dead body by the complainant and his family members, the trial court convicted and sentenced the appellants, as mentioned in the earlier part of the judgment. However, while observing that except the disclosure statement of A-1 and A-2, which is not admissible in evidence, there is nothing on record to connect accused Shakuntala with the commission of crime, she has been acquitted by the trial court.
Arguments of learned counsel for the appellants
22. Learned counsel for the appellants argued that case of the prosecution is based upon circumstantial evidence. According to them, the prosecution is relying upon five types of circumstantial evidence, i.e. the Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -12- motive, last seen, extra judicial confession, recovery and identification of the dead body by the complainant and his family members, but the prosecution has miserably failed to establish any one of these circumstantial evidence against any of the accused, beyond reasonable doubt. While referring to the statements of three material witnesses, namely PW.8 Kuldeep, who is a witness of last seen; PW.9 Suresh, before whom the alleged extra judicial confession was made by A-1 and A-2, PW.12 Mohinder Singh SI, who effected recovery on the basis of the disclosure statement made by A-1 and A-2, in the presence of PW.6 SI Bhup Singh and PW.8 Kuldeep, learned counsel argued that statements of all these prosecution witnesses are contradictory on material aspects, which create doubt in the entire prosecution version.
23. According to the learned counsel, evidence of the alleged motive of the crime is based upon the statement of PW.8 Kuldeep, who stated that he had heard that when his brother Subhash, A-3 and Hawa Singh were in judicial custody in the case under the NDPS Act, an altercation had taken place between his brother Subhash and A-3 in jail. Except the said statement, which is based upon hear-say, the prosecution did not lead any other evidence to establish the alleged motive. Neither any jail authority nor any jail record was produced by the prosecution to establish the factum of altercation between deceased Subhash and A-3 in the jail. Learned counsel further argued that the evidence of last seen is also concocted and unreliable. As per the statement (Ex.13) made by Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -13- complainant Kuldeep (PW.8), his brother Subhash was taken by the accused in their car on 16.7.2005 at about 7.30 PM from Bus Stand Niyana and they started searching for him after 2-3 days. He also reported the matter to the police and a DDR with regard to the missing of his brother was also got recorded, but the said DDR has been purposely withheld by the prosecution, because in that DDR, possibly the theory of last seen was not mentioned. While referring to the cross-examination of PW.8 Kuldeep, learned counsel pointed out that this witness has specifically admitted that in his statement (Ex.P13) made to the police, the factum of lodging the missing DDR did not find mention. Learned counsel further pointed out that the statement (Ex.P13) of PW.8 Kuldeep was recorded by the police on 27.7.2005, which contained the theory of last seen, but prior to that, on 26.7.2005 at about 7.00/7.30 PM, he became aware of the murder of his brother by the accused, because his brother Suresh (PW.9) had informed him about the extra judicial confession made by A-1 and A-2 before him, but in his statement (Ex.P13) before the police, complainant Kuldeep (PW.8) did not mention these facts. According to the learned counsel, this material contradiction completely demolishes the prosecution case.
24. Learned counsel for the appellants further argued that the third piece of circumstantial evidence, i.e. the evidence of extra judicial confession made by A-1 and A-2 before PW.9 Suresh, brother of deceased Subhash, is also wholly unreliable. While referring to the statement of PW.9 Suresh and PW.8 Kuldeep, learned counsel argued that this piece of Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -14- evidence is not only unreliable, but it appears to have been concocted. According to the learned counsel, it is highly improbable that A-1 and A-2 would go to the brother of deceased at his residence in his village, for making extra judicial confession, particularly when he was not known to them, at all, and who is neither a person in authority nor having any connection with the police. Learned counsel, while referring to the statement of PW.8 Kuldeep, argued that PW.8 Kuldeep in his statement has specifically stated that his brother Suresh (PW.9) had also disclosed to the police that A-1 to A-3 and accused Naveen were involved in the murder of his brother Subhash. He further stated that on 27.7.2005, when the police visited his village, his brother Suresh (PW.9) was present with the police. Learned counsel argued that in spite of the said fact, the police did not record the statement of PW.9 Suresh under Section 161 Cr.P.C., on that day, but it was recorded only on 1.8.2005. Learned counsel argued that actually, no extra judicial confession was made by A-1 and A-2 before PW.9 Suresh on 26.7.2005. Since A-1 himself had surrendered before the court on 27.7.2005, therefore, the police concocted the evidence of extra judicial confession subsequently, while recording the statement of Suresh (PW.9) under Section 161 Cr.P.C., on 1.8.2005. The police was bound to give the date of extra judicial confession of A-1 and A-2 as 26.7.2005, because on 27.7.2005, A-1 had surrendered in the court. Learned counsel further argued that the conduct of both the witnesses, namely PW.8 Kuldeep and PW.9 Suresh, creates doubt regarding the probability of the extra judicial Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -15- confession, made by A-1 and A-2. Learned counsel further pointed out that PW.9 Suresh, in his cross-examination, has specifically admitted that both the accused jointly made the extra judicial confession, which according to the learned counsel is not admissible in law.
25. While assailing the evidence of recovery, learned counsel argued that the recording of the alleged disclosure statements and the subsequent recoveries are highly doubtful. According to the learned counsel, there are many material contradictions in the statements of PW.6 SI Bhup Singh and PW.8 Kuldeep, who are witnesses of disclosure statements and the recovery memos, as well as the statement of PW.12 Mahender Singh SI, the Investigating Officer. While referring to the statement of PW.12 Mahender Singh SI, learned counsel pointed out that in his cross- examination, this witness has stated that in the beginning, A-2 was reluctant to disclose the fact, but when he (PW.12 Mahender Singh SI) assured him (A-2) that if he will disclose true fact, some lenient view will be taken against him and on this assurance, A-2 disclosed true fact. The same statement was made by this witness with regard to the disclosure made by A-3. While referring to this portion of the statement, learned counsel argued that the disclosure statement made by both these accused were based upon allurement given to them by the Investigating Officer and these were not their voluntary disclosures, therefore, the same cannot be considered legal one and the recoveries effected on the basis of such disclosure statements can not be relied upon.
Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -16-
26. Learned counsel for the appellants further argued that in this case, identification of the deceased has also not been established by the prosecution. While referring to the Post Mortem Report, learned counsel argued that the recovered dead body was fully putrefied and unidentifiable. PW.12 Mahender Singh SI, in his cross-examination, has also stated that the dead body was not identifiable. According to the prosecution version, the dead body was identified by brothers of the deceased only on the basis of the photographs (Ex.P1 and Ex.P2) and the pants (Ex.P15), alleged to have been recovered on the basis of the disclosure statement of A-1. Learned counsel, while referring to the photographs (Ex.P1 and Ex.P2), argued that even from these photographs, dead body could not have been identified by any one, therefore, identification of the dead body as that of Subhash could not be established from the said photographs. Regarding the pants (Ex.P15), it has been argued that there was no blood stain on the said pants and if the pants was worn by the deceased and alleged to have been removed before throwing him in the canal, it would have certainly blood stains on it, because it has come in the medical evidence, i.e. the statement of PW.11 Dr. Rajat Pankaj that the underwear of the deceased was smudged with blood. According to the learned counsel, it is the case of the prosecution that before throwing the dead body in the canal, accused gave danda blow injuries to the deceased, which resulted into oozing of blood. If the pants (Ex.P15) would have been removed by the accused before throwing the dead body in the canal, the same might have contained blood stains.
Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -17- Learned counsel further argued that it does not stand to prudence that before throwing the dead body in the canal, the accused would remove the pants and then keep the same concealed. This conduct of the accused is highly improbable. Learned counsel further argued that the recovered pants was not having any specific identification mark and according to the recovery witnesses, such pants is easily available in the market. Learned counsel further pointed out that as per the Post Mortem Report, hair of the dead body was grey. The Doctor described the age of the deceased as 40 years, whereas according to the prosecution, deceased Subhash was 19/20 years old boy. According to the learned counsel, this contradiction further creates doubt that the dead body, which was recovered on 21.7.2005 from the canal, was the dead body of Subhash. Learned counsel further pointed out that in this case, the Doctor preserved two pieces of bone for DNA test, but the prosecution did not make any attempt to get the dead body identified by conducting DNA test. This fact, according to the learned counsel, further creates doubt in the prosecution case. Thus, according to the learned counsel, the prosecution has miserably failed to establish any circumstantial evidence, which may lead to the irresistible conclusion that it is only the appellants, who have committed the alleged crime. Therefore, the trial court was not legally justified to convict and sentence the appellants. Arguments of learned State counsel
27. On the other hand, learned Additional Advocate General, Haryana, while supporting the impugned judgment and order, submits that Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -18- on the basis of the circumstantial evidence of last seen, extra judicial confession, motive, recovery and identification of the dead body of deceased, the trial court has rightly convicted and sentenced the appellants. Discussion
28. The case of the prosecution is that on 16.7.2005 at about 7.30 PM, in the presence of Kuldeep (PW.8), his brother Subhash (deceased) was taken in a Maruti car by the appellants and one Naveen (proclaimed offender), on the pretext that he had to accompany them to see the would-be wife of A-3. Thereafter, for 2-3 days, he did not return to his house. Subsequently, on 21.7.2005, dead body of an unknown person was found lying in the canal near the 4th Mile canal bridge in the area of village A.P. Bir. Avtar Singh (PW.7), Sarpanch of the said village, informed the police. Thereupon, the said dead body was taken out from the canal and was sent for the post mortem examination. The dead body was wearing only one underwear. On 22.7.2005, the post mortem examination on the said dead body was conducted by Dr. Rajat Pankar (PW.11). During post mortem examination, four injuries were noticed and it was opined that it was a homicidal death. After receipt of the Post Mortem Report, the FIR under Sections 302/201 IPC was registered against unknown person. During investigation, the police recorded the statement of Kuldeep (PW.8), who disclosed that his brother Subhash was taken by the accused on 16.7.2005 at about 7.30 PM on the pretext that he had to accompany them to Hisar to see the would-be wife of A-3. Lateron, when he did not return to the house, he Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -19- came to report the matter to the police and his statement (Ex.P13) was recorded by the police on 27.7.2005 at 11.30 AM. In the said statement, PW.8 Kuldeep suspected that his brother Subhash might have been killed, as he came to know that when his brother Subhash, A-3 and one Hawa Singh were in judicial custody in a case under the NDPS Act, there was some altercation between his brother and A-3, due to which he might have been killed by them. Subsequently, on 1.8.2005, the police recorded the statement of Suresh (PW.9), another brother of deceased Subhash, to the effect that on 26.7.2005, A-1 and A-2 had confessed before him that they along with A-3 and accused Naveen had committed the murder of Subhash. The prosecution is also relying upon the recovery of danda, pants and Maruti car from A-1 and one danda each from A-2 and A-3. Smt. Shakuntala (mother of A-3) was also tried with the appellants for the alleged offence. The allegation against Shakuntala was that one day prior to the occurrence, the appellants and accused Naveen met together in the house of A-3, where she told that Subhash (deceased) had harassed them very much, therefore, he be done to death. After killing Subhash and throwing him in the canal, all the four accused again went to the house of A- 3, where she served them meals and paid ` 7,000/- for their expenditure. These allegations were based upon the disclosure statement made by A-1. Thus, case of the prosecution rests upon the circumstantial evidence.
29. In order to establish its case, the prosecution is relying upon five types of circumstantial evidence i.e. the evidence of last seen, extra Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -20- judicial confession, recovery, identification of the dead body and motive. It is well settled that in a case, based upon the circumstantial evidence, it is the duty of the prosecution to (i) establish all the circumstances beyond reasonable doubt; and (ii) the circumstances so established should be consistent only with the hypothesis of the guilt of the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a 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. The Court should safeguard itself against the danger of basing its conclusion on suspicion, however strong it may be.
30. The question, which arises for consideration in the present case is : Whether the aforesaid five pieces of circumstantial evidence led by the prosecution are sufficient to bring home guilt of the accused beyond reasonable doubt and the same are consistent with the hypothesis of the guilt of the appellants? To ascertain the answer to this question, we will examine each circumstantial evidence led by the prosecution, one by one. Evidence of last seen
31. To establish the evidence of last seen, the prosecution is relying upon the statement of PW.8 Kuldeep. According to him, on 16.7.2005 at about 7.30 PM, his brother Subhash was taken away by the appellants and accused Naveen in a Maruti car, on the pretext that he had to accompany them to see the would-be wife of A-3 and when he did not return to the Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -21- house for 2-3 days, he was searched by the family members. For the first time, the police recorded the statement of PW.8 Kuldeep on 27.7.2005 at 11.30AM at Bus Stand, village Niyana. While appearing in the court as PW.8, in his cross-examination, he has specifically admitted that he and his family members came to know about the murder of his brother Subhash on 26.7.2005 at about 7.00/7.30 PM, as disclosed to them by his brother Suresh, before whom the alleged extra judicial confession was made by A-1 and A-2. He further admitted that he along with his brothers Ishwar, Suresh, Ajit and Vijender went to Police Station Sadar on 26.7.2005 at about 8.00/8.30 PM, for taking action against the accused. Though he disclosed the names of the accused to the police, but they did not take any action. However, in the statement (Ex.P13), PW.8 Kuldeep did not mention that on the previous day, A-1 and A-2 had disclosed to his brother Suresh (PW.9) that they along with A-3 and accused Naveen had killed their brother Subhash, after causing injuries, and thereafter threw his dead body in the canal, after removing his pants. If this witness was aware of the involvement of the accused in the murder of his brother, then he should have so stated in his statement (Ex.P13) made before the police on 27.7.2005 at 11.30 AM, but none of these facts find mention in the said statement. This is one aspect of the matter, which creates doubt in the evidence of last seen.
32. The second infirmity and contradiction in the prosecution case with regard to this evidence is that PW.8 Kuldeep, in his cross-examination before the court, has specifically admitted that when his brother did not Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -22- reach his house for 3-4 days, they started searching him in the relations. He also stated that in this regard, he lodged a DDR in Police Station Sadar Hisar regarding the missing of his brother. Copy of the said DDR was handed over to him. To a specific question, he further admitted that before making the statement (Ex.P13), he got recorded the DDR at Police Station Sadar Hisar, about the missing of his brother Subhash, but the said factor also did not find mention in the statement (Ex.P13) made by this witness to the police on 27.7.2005 at 11.30 AM. The prosecution has also not placed on record copy of the DDR, which was recorded at Police Station Sadar Hisar with regard to the missing of Subhash. No reason has been given in this regard. In such situation, the argument raised by learned counsel for the appellants that the said DDR was deliberately withheld by the prosecution, because it was not going to support the theory of last seen, seems to be valid and probable.
33. The third factor, which further compels this Court not to rely upon this evidence, is the conduct of PW.8 Kuldeep. It does not stand to reason and prudence that when PW.8 Kuldeep was having the knowledge that an altercation had taken place between A-3 and his brother Subhash, when they were in jail in a case under the NDPS Act, then why he permitted his brother Subhash to accompany A-3 at odd hours for visiting Hisar to see the would-be wife of A-3. Therefore, in our opinion, the prosecution has failed to establish this piece of circumstantial evidence beyond a reasonable doubt.
Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -23- Evidence of extra judicial confession
34. The second piece of the circumstantial evidence, which is being relied upon by the prosecution, is the evidence of extra judicial confession made by A-1 and A-2 confessing their guilt before PW.9 Suresh. This extra judicial confession was allegedly made by A-1 and A-2 to the said witness on 26.7.2005 at his residence in village Niyana. According to this witness, both the appellants (A-1 and A-2) came to his house and made the confession with regard to committing the murder of his brother Subhash. It is stated by this witness that after making extra judicial confession, both the appellants went away and thereafter, they never came to him. He has further stated that the police recorded his statement with regard to the said extra judicial confession only on 1.8.2005. This witness, in his cross-examination, has specifically admitted that he did not know both the appellants prior to their visiting him on 26.7.2005. For the first time, they came to him on that day. He has further admitted that he never remained as Sarpanch, Lambardar or Member Panchayat of village Niyana. He had no visiting terms with the police and no police official of Police Station Sadar Hisar was known to him. He further stated that both the appellants came to him at about 12.00/1.00 PM. They stayed with him for half an hour. At that time, he was alone in the house. When both the appellants requested him to produce them before the police, he stated that he has no time. This witness further stated that when A-1 and A-2 disclosed about the murder of his brother, he became furious. He abused them and asked them to go away from his house. He did Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -24- not take any step to produce A-1 and A-2 before the police and get them arrested. This witness has also admitted in his cross-examination that he told about the extra judicial confession made by both the accused to his brother Kuldeep (PW.8) and uncle Nania at about 5.00 PM on the same day and they went to the Police Station to disclose this fact to the police. He has further stated that his brother Kuldeep and uncle Nania assured him that they had moved an application to Police Station Sadar Hisar. In the cross- examination, this witness specifically admitted that A-1 and A-2 confessed their guilt jointly. He further stated that he cannot tell the date, on which the police visited the village. However, according to him, 10 days after 26.7.2005, the police visited the village and recorded his statement.
35. The statement of this witness regarding the extra judicial confession is totally unbelievable for various reasons. Firstly, it does not stand to reason that when neither A-1 and A-2 were known at all to this witness, nor this witness is having any authority or position in the police, then why this witness came to his residence to make extra judicial confession. Secondly, the conduct of this witness to the effect that when A- 1 and A-2 requested him to produce them before the police, he declined their request on the pretext that he is busy in his agriculture work and has no time. Thirdly, the conduct of this witness that after getting the knowledge of the murder of his brother by the appellants, he allowed A-1 and A-2 to go without taking any step to apprehend them and produce before the police. The testimony of this witness is further belied by the fact that the statement Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -25- of this witness under Section 161 Cr.P.C., was recorded by the police on 1.8.2005, particularly when he was available to the police even on 27.7.2005, as PW.8 Kuldeep, in his statement, has categorically admitted that when the police visited village Niyana on 27.7.2005, his brother Suresh (PW.9) along with other brothers was present in the village and with the police. He has further admitted that he along with his brothers Ishwar, Suresh, Ajit and Vijender came to Police Station Sadar on 26.7.2005 at about 8.0/8.30 PM, but no action was taken by the police on that day. If the extra judicial confession was actually made by A-1 and A-2 before PW.9 Suresh, then there was no reason for the police not to record the statement of PW.9 Suresh on 27.7.2005, regarding the said extra judicial confession. It has been argued by learned counsel for the appellants that the police was bound to give the date of extra judicial confession as 26.7.2005, because one of the accused, namely A-1 Mandeep, had surrendered before the court on 27.7.2005, therefore, while recording the statement of PW.9 Suresh on 1.8.2005, the police concocted the theory of extra judicial confession, allegedly made by A-1 and A-2. Further, this piece of evidence, relied upon by the prosecution, appears to be doubtful, because if this fact of extra judicial confession was told by PW.9 Suresh to his brother Kuldeep (PW.8) on 26.7.2005 itself in the evening, then it is not understandable that why this fact does not find mention in the statement (Ex.P13) made by Kuldeep to the police on 27.7.2005 at 11.30 AM. This factor further creates doubt regarding the extra judicial confession, as this piece of circumstantial Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -26- evidence appears to have been created by the investigating agency on 1.8.2005. Further, it has been admitted by PW.9 Suresh in his cross- examination that A-1 and A-2 jointly made extra judicial confession before him. Thus, the joint confession made by the accused before PW.9 Suresh is not admissible in law.
36. It is well settled that the evidence of extra judicial confession by its very nature is a weak type of evidence and it requires appreciation with a great deal of care and caution. If the extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it looses its importance. If the evidence of a witness, before whom the confession is made, was unreliable and his conduct is also doubtful and there is no other evidence to connect the accused with the crime, then such retracted extra judicial confession is not to be relied upon. Therefore, this piece of circumstantial evidence, relied upon by the prosecution, is doubtful and unreliable.
Evidence of recovery on the basis of the disclosure statements made by the appellants
37. According to the prosecution, in the morning of 30.7.2005, after taking the remand of A-1, he was interrogated by the police in the court complex itself and his disclosure statement (Ex.P1) was recorded. Thereafter, on the same day, at Bus Stand, Hansi, his second disclosure statement (Ex.P7) was recorded. In spite of the fact that the aforesaid disclosure statements (Ex.P1 and Ex.P7) were recorded in the court complex Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -27- and Bus Stand, Hansi, no independent witness or the Government official, who were present in the court complex and Bus Stand, was associated as witness. In pursuance of the second disclosure statement, A-1 got recovered the Maruti car (not exhibited as not produced), danda (Ex.P14) and pants (Ex.P15). On the same day, A-2 was arrested and his disclosure statement (Ex.P8) was recorded, on the basis of which danda (Ex.P25) was recovered. PW.12 Mahender Singh SI stated that the disclosure statement of A-2 was recorded in the street in front of his house at village Narnaund, whereas PW.6 Bhup Singh SI, a witness to the said disclosure statement, stated that A-2 made the disclosure statement near Bus Stand, Narnaund and at that time, no independent person of the locality was associated. On 1.8.2005, production warrant of A-3 was obtained from the Ilaqa Magistrate and he joined the investigation. During interrogation, on that day, he suffered disclosure statement (Ex.P22), and in pursuance of the same, he got recovered a danda (Ex.P24). At that time also, no independent witness was associated. PW.12 Mahender Singh SI, in his cross-examination, has admitted that in the beginning, A-2 and A-3 were reluctant to disclose the fact, mentioned in their disclosure statements, but on his assurance to them that if they will disclose true facts, some lenient view will be taken against them, they disclosed the true facts. This admission of PW.12 Mahender Singh SI in the cross-examination with regard to the disclosures made by A- 2 and A-3 makes the disclosure statements, made by them, inadmissible in law. This admission shows that the disclosure statements of these two Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -28- appellants were given by them on allurement offered by the Investigating Officer and such disclosure statements cannot be said to be voluntary statements, made by the accused.
38. It is an undisputed position that at the time of recovery of aforesaid articles on the basis of the disclosure statements, made by the appellants, except PW.8 Kuldeep (brother of deceased), no witness from the public was associated and that the places of recoveries were accessible to all. But PW.8 Kuldeep, in his cross-examination, stated that on 29.7.2005, the police had asked him to reach at Bus Stand, Hansi, to witness the recovery of danda and car from A-1 and A-2. This fact completely shatters the evidence of recovery in pursuance of the disclosure statements of both these appellants, because as per the case of the prosecution, the disclosure statements of A-1 and A-2 were recorded on 30.7.2005. Even the arrest of A-2 was also made on 30.7.2005. The pants, allegedly recovered at the instance of A-1, was having no specific mark of identifiation. It has been admitted by PW.12 Mahender Singh SI that at the time of recovery, the pants was lying in open space. It was not smeared with blood and such types of pants are easily available in the market. This witness has stated that the pants was got identified from the brother of the deceased by the stitching of its lower portion. However, this witness admitted that stitching of the lower portion of the pants was with a common thread. There was no mark of any company or trade mark on the pants. The dandas, allegedly recovered at the instance of the appellants, were not blood stained. PW.12 Mahender Singh Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -29- SI admitted that all the dandas were fresh/new and there was no blood stain on these dandas. He further admitted that such types of dandas are available from the carpenter shop. Regarding the recovery of car and the manner, in which it was brought from the place of recovery to the Police Station, there are many contradictions in the statements of the prosecution witnesses. According to PW.8 Kuldeep, the car was locked and it was brought to the Police Station by tagging it with jeep, whereas according to PW.12 Mahender Singh SI, the car was started from another key, which was borrowed from a passerby. All these discrepancies and contradictions and the aforesaid discussion render the evidence of recovery from the appellants unreliable and untrustworthy and these recoveries do not connect the accused with the crime.
Evidence of identification of the dead body
39. According to PW.11 Dr. Rajat Pankaj, the dead body was emitting foul smell. Maggots of size .5 x 1 cm were crawling at places. Scalp hairs peeled off except a few tufts of black and occasional grey hairs 3 to 4 cm long and easily pulled off at slight traction. Epidermis peeled off all over the body. Hands and feet deglaved, ear, nose, lips, tongues deformed, and face not identifiable. In his cross-examination, he has admitted that the body of deceased was at advance state of putrefaction. According to the prosecution, the said dead body was got identified from the brother of the deceased on the basis of photographs (Ex.P1 and Ex.P2). According to PW.8 Kuldeep, brother of the deceased, only one photograph was shown to Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -30- him on 27.7.2005. PW.12 Mahender Singh SI, in his cross-examination, has categorically stated that Kuldeep was called in the Police Station and was shown the photographs of the dead body, but he could not identify the dead body. A perusal of the photographs (Ex.P1 and Ex.P2), available on the record, also creates doubt regarding the identification of the deceased on the basis of these photographs.
40. The second evidence, which the prosecution is relying upon regarding identification of the deceased, is the pants, allegedly recovered at the instance of A-1. It is alleged that after causing the death of Subhash by inflicting injuries to him, the accused strangulated him and after removing his pants, they threw the dead body in the canal. It is undisputed position that the pants (Ex.P15) was having no blood stains or specific identification mark. It was recovered from an open space and according to PW.12 Mahender Singh SI, such pants are easily available in the market. According to the Post Mortem Report, the dead body was wearing one underwear with elastic waist, which was smudged with blood. If the underwear was smudged with blood, then it does not stand to reason that why the pants of the deceased, which was removed after causing injuries to the deceased, was having no blood stain, as it is the case of the prosecution that before throwing the dead body in the canal, the accused gave danda blow injuries to the deceased, which resulted into oozing of blood. If the pants would have been removed by the accused before throwing the dead body in the canal, the same might have contained blood stains. Secondly, it also does Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -31- not stand to prudence that before throwing the dead body in the canal, the accused would remove the pants of the deceased and then keep the same concealed. In view of these facts, it is highly unbelievable that the brother of the deceased could identify the dead body as that of Subhash, because as per the prosecution case, he has identified the dead body only on the basis of photographs of a putrefied, swollen and unidentifiable dead body. He has not identified it on the basis of any particular scar mark, hair, teeth or anything else. In this regard, reliance can be placed upon the Division Bench decision of this Court in Madan Mohan @ David v. State of Haryana, 1997 (1) RCR (Criminal) 713.
41. In this case, at the time of the post mortem examination, PW.11 Dr. Rajat Pankaj took out two pieces of plavical for DNA test, which were sealed in a jar and handed over to the police. However, the prosecution did not take any step to get the DNA test conducted in order to establish the identity of the dead body as that of Subhash. The DNA test could have established the age and identity of the deceased.
42. Thus, the evidence of identification of the dead body, led by the prosecution, is not reliable and does not establish the prosecution case beyond a reasonable doubt.
Motive
43. In a case of direct evidence, motive may not be relevant, but in a case based upon circumstantial evidence, motive of the alleged crime assumes great significance. In this case, in our opinion, the prosecution has Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -32- failed to establish the motive. The evidence of the alleged motive of the crime is based upon the statement of PW.8 Kuldeep, who stated that he had heard that when his brother Subhash, A-3 and Hawa Singh were in judicial custody in a case under the NDPS Act, an altercation had taken place between his brother Subhash and A-3 in jail. This statement of PW.8 Kuldeep is the only evidence, led by the prosecution to establish the alleged motive, but it is based upon hear-say. Neither any jail authority nor any jail record was produced by the prosecution to establish the factum of altercation between Subhash and A-3 in the jail. This witness has not stated that his brother Subhash had told him about the said altercation. He has not named the person, from whom, he had heard the said fact of altercation. It has also come in the statements of PW.8 Kuldeep and PW.9 Suresh that deceased Subhash was facing many criminal cases for various offences, including dacoity and murder. In that situation, possibility cannot be ruled out that he might be having many other rivals or he might have disappeared from his house to hide his identity. Therefore, even the alleged motive of the crime has not been established by the prosecution beyond reasonable doubt.
Conclusion
44. In view of the above, in our opinion, the prosecution has miserably failed to establish the circumstantial evidence, which may be sufficient to establish the guilt of the accused beyond reasonable doubt and on the basis of such evidence, it is not possible to reach to the conclusion Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -33- that only the appellants have committed the alleged crime. It is certain rule of criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. But the evidence led by the prosecution in the instant case is not of such a nature. Therefore, in our view, the prosecution has miserably failed to establish its case against the appellants beyond reasonable doubt.
45. For the reasons recorded above, both the appeals are allowed. The impugned judgment of conviction and the order of sentence is set aside and appellants Mandeep, Karambir and Dharambir, who are in custody, are acquitted of the charges and they be set at liberty forthwith, if not required in any other case.
( SATISH KUMAR MITTAL )
JUDGE
April 01, 2011 ( M. JEYAPAUL )
ndj JUDGE