[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of Decision: 20.8.2009 [ENTITY] Appellant Vs. The [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR.JUSTICE [ENTITY] Present: Ms. [ENTITY], Advocate/ Amicus Curiae for the appellant. Mr.[ENTITY], Additional Advocate General, Haryana. JUDGMENT
[ENTITY], J.
1. The present appeal is directed against the judgment dated 18.7.1998 and the order dated 20.7.1998 passed by the learned Additional Sessions Judge, Ambala, whereby the accused/appellant has been convicted under [SECTION] of the [ACT] and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.2000/- and in default of payment of fine to further undergo rigorous imprisonment for one year.
2. The brief facts of the case stand reflected in para 2 of the impugned judgment, which are reproduced as under:-
"On 30.5.96, [ENTITY], SI alongwith other police officials was on patrol duty and was present in village Jandheri, where [ENTITY] complainant got recorded his statement to him. [ENTITY] reported that there are two Deras of [ENTITY] in his village. The old Dera is in the village and the other Dera is towards Eastern side of the village. According to the complainant, Dera of the village has got four killas of land. About six months back, villagers had brought [ENTITY] for looking after [ENTITY]. [ENTITY] started looking after the [ENTITY]. Villagers wanted that four killas of land of Dera should be distributed among the two Deras equally. However, [ENTITY] of these Deras did not like this. [ENTITY] had brought a [ENTITY] from Karnal to his Dera. Prior to the date of occurrence, on 29.5.1996, [ENTITY], [ENTITY], [ENTITY] and other [ENTITY] went to village Budhmar (Punjab) on a [ENTITY]. They had come back in the evening. According to complainant, it was heard that [ENTITY] had reprimanded accused [ENTITY] on his taking liquor. The complainant also came to the [ENTITY] alongwith [ENTITY] at 8 PM on 29.5.96 to give milk to [ENTITY]. On the next day, when he again came alongwith [ENTITY] at about 5.30 AM to give milk to [ENTITY], he found him lying dead on the folding cot beneath the stairs of the [ENTITY]. There were injuries on his person. The complainant left [ENTITY] near the dead body and he himself came to the police to lodge a report. Formal FIR was recorded on the basis of the statement of complainant. [ENTITY], Inspector took [ENTITY] complainant with him and reached [ENTITY], where he found dead body of [ENTITY] filled with blood. [ENTITY] Inspector called a dog squad. FSL team was also called. DSP, Headquarters, Inspector CIA and other police officials reached the spot. After thorough investigation, the inquest report was prepared. Blood stained earth, Niwar of the cot and one handle of the hand pump were taken into possession by preparing necessary memos. Rough site plan was also prepared by [ENTITY], Inspector. He recorded statements of witnesses. Dead body was sent for post-mortem examination. Two parties were formed by the police to search out [ENTITY] accused. [ENTITY] Inspector, then reached Bus Stand, Ismailabad. He found [ENTITY] Constable and [ENTITY] HC there, who handed over to him a copy of post-mortem report and a parcel containing clothes etc. along with seal and an envelope. These were taken into possession by preparing a separate memo. All the parcels were deposited with MHC of the police station. The photographs of the spot were also taken by Constable [ENTITY]."
3. The accused/appellant made an extra judicial confession before [ENTITY], PW13. [ENTITY], PW13, produced the accused before SI [ENTITY], Investigating Officer, PW15, in the present case. The accused was interrogated in the presence of [ENTITY], [ENTITY], PW13 and ASI [ENTITY], PW14.
4. The accused made a disclosure statement in the presence of [ENTITY], [ENTITY], PW13 and ASI [ENTITY], PW14 that he had kept concealed a [ENTITY] and [ENTITY] blood stained in the courtyard of Shivji Temple at Village Taprian under the dry grass. In pursuance of the disclosure statement, the articles i.e. [ENTITY] and [ENTITY] were recovered. Recovery memo (Exhibit PF) of the articles recovered in pursuance of the disclosure statement of the accused was prepared by SI [ENTITY]. Rough site plan was prepared.
5. After completion of the investigation, challan was presented before the Court for commencement of trial of the accused. Learned Additional Sessions Judge vide its order, dated 12.9.1996, charge-sheeted the accused under [SECTION] of the [ACT].
6. In order to substantiate its allegations, the prosecution examined as many as fifteen witnesses.
7. [ENTITY], PW7, saw the accused coming out of the Temple on the day of occurrence. He was also a witness to the recovery of [ENTITY] and [ENTITY].
8. [ENTITY], PW9, was the first informant and resident of the same village. He along with [ENTITY] went to the Dera of [ENTITY] to deliver milk on 30.5.1996 at about 5.30 a.m. On reaching there, they saw the dead body of [ENTITY] lying on the cot, placed in the staircase.
9. [ENTITY], PW10, made statement to the effect that he heard in the village that accused and deceased had gone together to the Dera.
10. [ENTITY], PW11, stated that the accused had come in drunken condition at night and had quarreled with other [ENTITY] (Saints) present in the Dera of [ENTITY]. The accused subsequently left the Dera at 10.00 p.m.
11. Dr. [ENTITY], Medical Officer, Civil Hospital, Ambala City, PW12, conducted the post-mortem on the dead body and noticed the following injuries:-
"1. There was an incised wound 5 cm x 2 cm oblique on the lower half of the right ear and through soft clotted blood was present in the wound;
2. There was an incised wound 3 cm x 2 cm bone deep oblique in the middle of back of right ear. Soft clotted blood was present in the wound;
3. There was an incised wound oblique 4 cm x 2 cm bone deep on the right side of scalp 3 cm above the right ear. On deeper dis-section, an under lying bone was fractured, haematoma 11 cm x 4 cm was present all over the right hemisphere of the brain."
12. [ENTITY], SI, Investigating Officer, PW15 stated that he interrogated the accused in the presence of [ENTITY], [ENTITY] and [ENTITY], ASI and also prepared the recovery memo Exhibit PF.
13. After the conclusion of evidence of prosecution, the accused was examined under [SECTION] of the [ACT]. He pleaded not guilty and stated that it was a case of blind murder and he had been falsely implicated on account of rivalry between the two Deras.
14. Learned trial Court relied on the statement of [ENTITY], PW11 to the extent that the accused was in habit of taking liquor and thereafter picking up of quarrel. The learned trial Court further relied on the extra judicial confession made before [ENTITY], PW13 and the statement of [ENTITY], PW7, who is the last seen witness and saw the accused at coming out of the temple at 12.00 a.m. on 29.5.2006.
15. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on the record, the learned trial Court convicted and sentenced the accused as noticed at the outset.
16. Feeling aggrieved by the order of the learned trial Court, the appellant has preferred this appeal. The present appeal was received through jail and was admitted by this Court on 13.8.2001.
17. Learned counsel for the appellant submits that there is neither eye witness to the matter nor any direct evidence against the accused. It is a blind murder. The appellant was convicted and sentenced on the basis of circumstantial evidence, hear-say and suspicion only which were not proved on record beyond any reasonable doubt. Learned counsel further submits that as per statement of [ENTITY], PW9, there was no dispute as regards the Dera's land.
18. Learned counsel has further argued that [ENTITY], PW7, is the last seen witness. [ENTITY] stated that he saw the accused coming out of the Temple at 12.00 a.m. when he was proceeding to Pehowa on the occasion of [ENTITY]. The accused was empty-handed. In his cross-examination, [ENTITY], PW7, stated that he did not suspect the accused for killing the deceased.
19. It was further contended that as per the statement of Dr.[ENTITY], PW12, three injuries were noticed during the post-mortem examination and all the injuries were found to be incised wound, whereas as per statement of SI [ENTITY], PW15 the death was caused by a handle of hand pump which was recovered from the site. The same was blood stained.
20. It has been further argued that from the site plan Exhibit PL, it is clear that the dead body was lying in the stairs. There is no evidence on the record to show that the deceased had been living in the Dera all alone. It has not been explained by the prosecution that as to how nobody else other than the deceased was present in the Dera. No one has been examined from the Dera, managed by the deceased. This indicates that the death had not occurred in the manner stated by the prosecution.
21. As regards the statement of [ENTITY], PW11, it has been argued that there was no witness to the altercation allegedly taken place between the deceased and the accused. [ENTITY] who was a disciple of [ENTITY], used to manage the other Dera in the Village. Though, it has come in the statement of [ENTITY] that after altercation, accused left the Dera, but nothing has come forward from this witness in regard to the manner in which the deceased was killed.
22. The accused made extra judicial confession to [ENTITY], PW13. [ENTITY] comes from a distant village i.e. Taprian, whereas the accused comes from Raipur Rani. The accused had joined the Dera only few days prior to the occurrence. Therefore, no eventuality arises in the present case as to why the accused would go to a person not intimately known to him.
23. On behalf of the State, it is argued that the occurrence took place somewhere between 9.00 p.m. and 5.00 a.m. There are two Deras in the Village one headed by [ENTITY] and the other headed by [ENTITY], the deceased. The Dera headed by the deceased was outside the village and the deceased was the only person residing at the Dera. The accused left the Dera of [ENTITY] at about 10.00 p.m. and he was seen coming out of the second Dera headed by the deceased at 12.00 a.m. by [ENTITY], PW7. It is further submitted that [ENTITY], PW13 produced the accused before the police. He comes from the village Taprian and therefore, he is an independent witness. The accused was seen at 12.00 a.m. while coming out of the Dera of the deceased in a perplexed condition. The accused had a strong motive to eliminate the deceased as the deceased had rebuked and reprimanded the accused for having taken liquor in the Dera.
24. We have heard the learned counsel for the parties and perused the record.
25. Admittedly, it is a blind murder case and rests on circumstantial evidence. Nobody has witnessed the occurrence. The accused made extra judicial confession to [ENTITY], PW13, admitting his guilt and told him that on 29.5.2006, he killed [ENTITY] with a handle of the hand pump and took a sum of Rs.1500/- from his pocket and a [ENTITY], [ENTITY] and [ENTITY] were also taken away by him. In pursuance of the disclosure statement made during interrogation, personal belongings of the deceased i.e. [ENTITY], [ENTITY] and [ENTITY] were recovered.
26. In this regard, the Hon'ble Supreme Court in [PRECEDENT] has observed as under:-
6. 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 [PRECEDENT]); [PRECEDENT]; [PRECEDENT]); [PRECEDENT]); [PRECEDENT]; 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 [PRECEDENT], it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
7. We may also make a reference to a decision of this Court in [PRECEDENT], wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence ".
8. In [PRECEDENT], it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently 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 should be inconsistent with his innocence.
9. In [PRECEDENT], it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
10. Sir [ENTITY] in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4)in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
11. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
12. In [PRECEDENT], wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. 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."
13. A reference may be made to a later decision in [PRECEDENT]. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
27. It is not disputed that there are two Deras in the village, one inside the village is headed by [ENTITY] and the other outside the village was headed by [ENTITY], deceased.
28. From the site plan, it is made out that the dead body was lying on the cot in the stairs. A blood stained handle of the hand pump was recovered from the spot.
29. From the statement of SI [ENTITY], PW15, it is clear that as per the prosecution, the weapon used in the crime is a handle of the hand pump, whereas as per the post mortem report, all the injuries are incised wound. No opinion was sought from the doctor as to whether these injuries could be caused by the weapon of offence cited by the prosecution. We feel that the learned trial Court wrongly ignored the opinion of Dr. [ENTITY], Medical Officer, PW-12, who conducted post mortem examination and found all the injuries to be incised wound. This witness has also opined that injuries suffered by the deceased could not have been caused by blunt weapon.
30. In such a fact situation, we are unable to agree with the argument advanced by the learned counsel for the State that the injuries mentioned in the post mortem report could be caused by the weapon stated to be used in the crime. The medical evidence is not corroborated by ocular version.
31. The learned trial Court further ignored the fact that the accused was not confronted with the question that whether [ENTITY], PW13 was known to him for the last ten years. The learned trial Court wrongly recorded that this witness was closely known to the accused and, therefore, it was natural for the accused to repose faith in [ENTITY], PW13 for making extra judicial confession.
32. Moreover, there is no material on record on the basis of which it can be conclusively stated that the accused had a motive to kill the deceased. There is nothing on record which may even remotely suggest that the deceased wanted to head the Dera. There is no evidence of previous enmity between the accused and the deceased. In these circumstances, we feel that true genesis of the crime have not come on the record in the instant case.
33. In view of the above, the present appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned trial Court are set aside. The appellant is acquitted of the charge. It has not been informed whether the appellant is on bail or in custody. If the appellant is in custody, he shall be set at liberty forthwith, if his custody is not required in any other case. In case the appellant is on bail, his bail bonds would stand discharged.
([ENTITY]) JUDGE 20.8.2009 ([ENTITY]) mk JUDGE Note: Whether to be referred to the Reporter? Yes/No