Punjab-Haryana High Court
Chhinder Singh @ Binder Singh vs State Of Haryana on 2 December, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1) Criminal Appeal No. 46-DB of 2007
Date of Decision: 02.12.2011.
Chhinder Singh @ Binder Singh .......Appellant
Vs.
State of Haryana ......Respondent
(2) Criminal Appeal No. 392-DB of 2007
Saravjit Kaur @ Rani @ Pinki .......Appellant
Vs.
State of Haryana ......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. H.N.S.Gill, Advocate
Amicus Curiae for the appellants.
Mr. Sandeep Vermani, Addl. A.G., Haryana.
.....
SABINA, J.
Vide this judgment, the above mentioned two appeals would be disposed of as these have arisen out of common incident/judgment.
The appellants, who are in custody since the date of their arrest i.e. 20.5.2004, have filed these appeals challenging their conviction and sentence as ordered by the trial court under Section 302, 363/34 of the Indian Penal Code ('IPC' for short) vide judgment/order dated 03.11.2006/15.11.2006.
Prosecution case was set in motion on the basis of the Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 2- statement of the complainant Partap Singh father of deceased Sonu. The complainant submitted a complaint to the Station House Officer, Baragudha (Ex.PN) for registration of a case. The complainant stated in the application Ex. PN that for the last 3/4 months, he was residing with his family at Shiv brick-kiln village Sukhchain and was doing labour work. On 15.4.2004, at about 7.00 A.M., some unknown persons came to the brick-kiln in a white coloured Esteem car bearing No. 3642. Out of the said persons, three were men and two were wearing ladies attire. They were also carrying dholak etc. and asked for Badhai (asking for money) qua their son who was aged about one year. When the complainant party intended to give ` 20/-, the above said persons took away the child with them and said that they should get the child released from Darshna Mahant of village Odhan after paying ` 500/- towards Badhai.. When the complainant party went to the said Mahant with ` 500/-, they showed complete ignorance about the facts and said that no child was with them. The complainant sought that his child be traced.
On the basis of the statement of the complainant, formal first information report ('FIR' for short) No. 53 dated 16.4.2004 was registered at Police Station Baragudha under Section 363-A IPC.
Sub Inspector Rattan Singh then visited the spot and verified the facts from the complainant and other witnesses. He prepared the rough site plan of the place of kidnapping. On 28.4.2004, Sub Inspector Rattan Singh got prepared a sketch of Chhinder with the help of the complainant and Ram Kumar, Clerk of the brick-kiln from computer branch of Superintendent Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 3- of Police, Sirsa. On 20.5.2004, accused Chhinder Singh, Saravjit Kaur alias Pinky alias Rani, Boota Singh, Sandeep Singh alias Raju and Tara Baba were arrested. The said accused were then got identified from Nikku Ram and Sohan Lal. During interrogation, disclosure statements of accused Chhinder and Rani were recorded by Sub Inspector Rattan Singh. The accused were produced before the Magistrate on 21.5.2004. On the basis of disclosure statement suffered by accused Sandeep, Esteem car bearing No. DL-1CB-5844 was recovered and the same was taken in possession. On 22.5.2004, accused Chhinder Singh, on the basis of his disclosure statement, led the police party to the place where the dead body was buried. However, the dead body was not recovered from the disclosed place. On 24.5.2004, on the basis of disclosure statement of Chhinder Singh, dead body of the child was exhumed from the disclosed place. The dead body was taken in possession. Sub Inspector Rattan Singh conducted the inquest proceedings qua the dead body of the child. The dead body was got photographed and was sent for post mortem examination. On 27.5.2004, accused Gulab Kaur and Kashmir Singh were arrested. On 02.7.2004, blood samples of the complainant and his wife were taken from General Hospital, Sirsa but could not be sent to Hyderabad. On 09.8.2004, blood samples of the complainant and his wife were taken and were sent to Hyderabad for Deoxyribo Nucliec Acid ('DNA' for short) test.
After completion of investigation and necessary formalities, challan was presented against the accused.
Prosecution, in order to prove its case, examined 16 witnesses.
Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 4- After the close of prosecution evidence, appellants when examined under Section 313 of the Code of Criminal Procedure ('Cr.P.C.' for short), prayed that they had been falsely involved in this case under public pressure to solve the case. The police could not apprehend the actual culprits and had involved them falsely in the case. They were poor persons and had not suffered any disclosure statements at any stage.
Learned Amicus Curiae for the appellants has submitted that the prosecution had miserably failed to prove its case. There was no description of the accused in the FIR. The number of the car, in which the kidnappers had come, is different in the FIR than the car recovered during investigation. From the statement of the complainant, it was evident that he was himself not present at the spot at the time of occurrence. As per the complainant himself, PW-9 Sonpal was present with him at the work place at the time of occurrence. The blood samples of the complainant as well as his wife were sent for DNA examination and as per the report of the expert dated 26.6.2006, the deceased was not biologically related to them.
Learned state counsel, on the other hand, has submitted that both the complainant and PW-9 Sonpal had categorically deposed that the appellants had come to the spot and had taken away the son of the complainant as they were demanding more money. PW-9 and the complainant had no reason to falsely involve the appellants in this case. The appellants had been duly identified by the complainant and PW-9. The dead body of the deceased was got recovered by the appellant Chhinder Singh.
After hearing the learned Amicus Curiae for the Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 5- appellants and the learned state counsel and after going through the record, available on the file carefully, we are of the opinion that the instant appeals deserve to be allowed.
The present case rests on circumstantial evidence. In 'Manjunath Chennabasapa Madalli versus State of Karnataka', AIR 2007 Supreme Court 2080, it was held as under:-
"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446) ; State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v.
State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 6- the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
In the present case, the complainant has appeared in the witness box as PW-10 and has deposed as per the contents of the FIR. The complainant has named the appellants and the other accused, while appearing in the witness box, as the persons who had taken away his son in the car. PW-9 Sonpal has corroborated the statement of the complainant. In these circumstances, it becomes essential to examine the statements of the said witnesses to test their trustworthiness.
Although PW-10 has not named the kidnappers in his complaint nor has given their description but while appearing in the witness box, the complainant categorically deposed that Chhinder Singh, his wife Rani, Sandeep, Boota Singh and Tara Baba had come in the white coloured Esteem Maruti Car near his hut. Chhinder Singh was dressed in ladies attire. Tara Baba was carrying a drum (dholki). In his cross examination he deposed that the police party had showed them all the five accused at the brick-kiln on 20.5.2005. The accused were handcuffed and had been produced at about 10/10.30 A.M. He was present there along with his wife, Sonpal and other labourers. The police had told him the names of the accused. He did not know the names of the accused. The identification parade of the accused was not got conducted from him. He had given the number of the car to the police but when the witness was examined in the court, he stated that on that day (date of examination) he did not remember the number of the car. His Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 7- wife had started from their work place with ` 20/- but she did not return back to the work place to tell him that the accused were not accepting ` 20/- as he had followed her to his hut. His wife told him at the work place that the accused had taken away their son Sonu to the Dera of Mahant Darshna at Odhan after five minutes. Sonpal was also working with him at that time. Sonpal kept on working there. They were taking out bricks from the brick-kiln. He could not give the description of the clothes of the accused. Thus, from the reading of the statement of the complainant PW-10 it transpires that the complainant himself was not present at the time of occurrence. Rather, his wife was present at the spot and she had told him about the occurrence after reaching his place of work. At that time PW-9 Sonpal was also working with the complainant. Wife of the complainant Kailash Rani was, however, not examined as a witness during trial and was given up unnecessary.
After the recovery of the dead body, admittedly the blood samples of the complainant and the wife were sent for DNA examination. Although the DNA report is not duly exhibited on record but it forms part of the challan. The Technical Examiner, Laboratory of DNA Fingerprinting Services Centre for DNA Fingerprinting and Diagnostics (DBT, Ministry of Science and Technology, Govt. of India) Nacharam, Hyderabad opined as under:-
Result of Examination The autosomal DNA profile of the source of exhibit A (one bone said to be of the deceased) does not match with the DNA profiles of the sources of exhibit B Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 8- (blood sample said to be of Smt Kailash) and exhibit C (blood sample said to be of Shri Pratap Singh). The Y chromosomal DNA profile of the source of exhibit A (one bone said to be of the deceased) does not match with the Y chromosomal DNA profile of the source of exhibit C (blood sample said to be of Shri Pratap Singh).
Conclusion The DNA test performed on the exhibits provided is sufficient to conclude that the source of exhibit A (deceased) is not biologically related to the sources of exhibit B (Smt Kailash) and exhibit C (Shri Pratap Singh).
Thus, as per the above report it was opined that the complainant and his wife were not biologically related to the deceased. Since the report has not come in favour of the prosecution, apparently due to this reason, the same was not exhibited by the prosecution while leading its evidence. Since, it is a part of the challan, the same can be duly considered. The fact that the complainant himself was not present when his son was allegedly taken away by the appellants and the fact that on DNA examination, it was observed that the deceased was not biologically related to the complainant and his wife, it would not be safe to base the conviction of the appellants on the basis of the statement of the complainant.
PW-9 Sonpal has though corroborated the statement of the complainant but his statement also cannot be relied upon to base the conviction of the appellants because the complainant Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 9- himself has stated that PW-9 was working with him when his wife had told him about the incident. Thus, PW-9 was also not present at the spot.
Although the complainant has failed to give the number of the car while appearing in the witness box but in his complaint he had given the number of the car as 3642. However, during investigation car No. DL-1CB-5844 was recovered from accused Sandeep. PW-15 Rajesh Kumar deposed that he was the owner of the said car and he had employed Sandeep as his driver on 01.3.2004 on a salary of ` 1500/- per month. On 15.4.2004, accused Sandeep of his own had taken away the car with some Mahant. On 17.4.2004 he (Sandeep) had returned the car to him. In his cross examination he deposed that he had not maintained any account qua payment of salary to the accused. He did not have a permit to run his car as a taxi. The car in question was his private car. On 15.4.2004, accused Sandeep was not engaged with the car. He further deposed that his statement was never recorded by the police in this case. It appears that PW-15 has been introduced during investigation to strengthen the prosecution case.
PW-16 Sub Inspector Rattan Singh has deposed with regard to investigation of the case. In his cross examination he deposed that Chhinder Singh accused was arrested on 20.5.2004 under Section 41(2) Cr.P.C. Accused was arrested on the basis of suspicion. No test identification parade of the accused was got conducted in this case.
Thus, in the present case prosecution has failed to establish its case. The accused were apparently arrested on the basis of suspicion. The names or description of the accused was Crl. Appeals No. 46-DB of 2007 and 392-DB of 2007 - 10- not mentioned in the FIR nor any test identification parade was got conducted qua the accused. The statements of PW-9 and PW-10 to the effect that they were present at the spot and had seen the appellants taking away the deceased, fail to inspire confidence in view of the cross examination of the PW-10 complainant. Moreover, the dead body recovered during the course of investigation was not biologically related to the complainant and his wife as per the expert opinion. The number of the car given by the complainant in his complaint is different than the car recovered during investigation. All these circumstances fail to establish the guilt of the appellants beyond the shadow of reasonable doubt. It is settled proposition of law that an accused is presumed to be innocent till proved guilty. The prosecution in the present case has failed to complete the chain of circumstances which would lead to the hypothesis of the guilt of the appellants and negate their innocence.
Accordingly, both the appeals are allowed. The impugned judgment of conviction dated 03.11.2006 and order of sentence dated 15.11.2006 are set aside. The appellants are acquitted of the charges framed against them. The appellants, who are in custody, be set at liberty forthwith, if not required in any other case.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
December 02, 2011
Gurpreet