IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.384-DBA of 1998 Date of decision: 12th January, 2011 State of Haryana … Appellant Versus Rajbir … Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. P.S.Poonia, Addl. A.G., Haryana for the appellant. Mr.R.S.Cheema, Sr. Advocate with Mr.Arshdeep Singh Cheema, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. On 25.3.1996 in the area of village Pali, Rajender son of Net Ram was said to have been murdered by respondent-Rajbir who was charged for offence under Section 302 IPC by the Additional Sessions Judge, Faridabad. After conclusion of the trial, Additional Sessions Judge (I), Faridabad, vide his judgment dated 9.2.1998 recorded acquittal of respondent-Rajbir. State of Haryana by filing the present appeal has challenged acquittal of respondent-Rajbir and prays that he be convicted and sentenced for the office for which he was charged. Net Ram PW2 made statement Ex.PB to ASI Ram Pal PW4, on the basis of which formal FIR Ex.PB/2, bearing No.141 dated 25.03.1996 under Section 302 IPC was recorded at Police Station Sadar Ballabhgarh. Net Ram stated to the police that he was a resident of Criminal Appeal No.384-DBA of 1998 village Pali but was employed as a teacher in a Government School at Delhi. His son was a student of 10th class at Delhi. His son arrived from Delhi in a private vehicle and was proceeding towards the house followed by the complainant. The accused was standing near the water supply tank of Village Pali and gave a lalkara that he will teach Rajender a lesson for demanding money. The accused took out a knife from his pocket and grappled with Rajender son of the complainant. Rajender made an attempt to catch hold of the knife but the accused succeeded in causing 2-3 knife blows on left arm of Rajender. He also gave one knife blow on the left side of chest of Rajender son of the complainant. Thereafter, the accused decamped from the spot along with the weapon. Rajender succumbed to the injuries at the spot. The cause of occurrence stated to be was the demand of money made by Rajender deceased 2/3 days prior to the occurrence. On 25.3.1996, Rajender was brought dead at B.K. Hospital, Faridabad. On the next day i.e. 26.3.1996 at 10.15 A.M., his autopsy was conducted by Dr.A.K.Gupta PW3 and Dr.Avinash Sharma. The following injuries were found on the person of deceased Rajender:- 1. An incised wound 1.5 x 1.0 cm into skin deep on the right palm. 2. Two reddish abrasions one each on the back of base of right little and ring finger measuring 1.0 x 1.8 cm each. 3. Incised wound 1.5 x 0.3 cm on the back of the left forearm on its lower half part. 4. Incised wound 2.0 x 0.3 cm intradernal on the back of the left elbow in lateral part. 5. Incised wound 1.5 x 0.5 cm intradernal on back of the left arm in the middle third part. 2 Criminal Appeal No.384-DBA of 1998 6. Incised wound 2.0 x 1.0 cm elliptical shaped vertically placed just left to anterior mid line at a level 2.0 cm below inter mammary line. On further discussion there was a rent in the underlying lower part of the sternum corresponding to the wound as described. Clotted blood was present in the mediastinum corresponding rent was present in the right ventricle on its anterior surface piercing through the cavity of right ventricle and lateral wall of right ventricle. Medical pleura of right lung was perforated and there was perforation in the middle lobe of the right lung. Right pleural cavity and pericardial cavities were full of blood. Dr.A.K.Gupta PW3 opined that cause of death was result of shock and hemorrhage and injuries to vital organs of the body. Injury No.6 was sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem in nature. Duration between injuries and death was few hours. This Medical Officer also examined accused Rajbir on the same day at 8.40 P.M. And found two incised wounds on his person. Injury No.1 was on the chest and injury No.2 was on the left thigh. The accused remained admitted in the hospital upto 30.3.1996. PW2 Net Ram complainant, father of the deceased is the only eye witness of the occurrence. He reiterated as to what was stated by him in the FIR. This Court can have quick glance of the other evidence led by the prosecution. Nand Kishore, Patwari PW1 had prepared the scaled site plan Ex.PA. 3 Criminal Appeal No.384-DBA of 1998 ASI Ram Pal PW4 had recorded the statement of Net Ram complainant, on the basis of which formal FIR was registered. HC Mahender Singh PW5 and C. Ram Kumar PW6 tendered their affidavits Exs.PJ and PK to prove the link evidence. ASI Rattan Deep Bali PW7 on receipt of ruqa Ex.PB, had registered the formal FIR. SI Bhagat Singh PW8 proved various facets of the investigation. Thereafter statement of the accused was recorded under Section 313 Cr.P.C. All incriminating circumstances were put to him. He denied the same and gave the following version:- “Some one month prior to this alleged incident, I and Rajender were participating in wrestling. I had made him fell down at that time in wrestling. He took ill of it at that time and had abused me. I had then given him a slap. He had then stated that he was to take revenge. Then I was to appear in my examination after one month of the said incident. On the alleged date of incident I was returning after appearing in the examination. I had come to my house. Then when I was going to supply meals during the transit Rajender met me. He started grappling with me. In that process both of us received injuries by means of knife. On account of injuries on my person I laid under the Neem tree and was unconscious. I regained consciousness in the hospital where I was shifted by my brother. Lateron the police fabricated this case against me by colluding with the complainant party. I remained admitted in the hospital for six days. I am innocent.” No evidence was led in defence. The trial Court formulated following two questions to appreciate the evidence led by the prosecution: 4 Criminal Appeal No.384-DBA of 1998 (i) Whether the occurrence took place in the manner disclosed by Net Ram PW-2? (ii) Whether the incident took place in the manner disclosed by the accused in his statement recorded under Section 313 Cr.P.C.? The trial Court answered these questions by holding that Net Ram PW-2 was the solitary witness of the occurrence and even though the Courts do not insist for quantity but quality of the evidence, considering the entire gamut of the prosecution case, the trial Court held that Net Ram PW-2 was not present at the spot when the incident took place. In the words of trial Court “he appears to be clearly a subsequentee”. To return this finding, the trial Court held that the witness was at a distance of 5/6 paces from the deceased. It is surprising that when the accused inflicted 5/6 knife injuries on the person of the deceased, Net Ram PW-2 had not intervened. The Court found the conduct of Net Ram PW-2, father of the deceased, to be improbable for remaining a silent spectator. The trial Court further held that there were two injuries on the person of accused. One injury was an incised wound on the lateral aspect of his chest and the other was on left thigh. The accused was examined on the same day at about 8.45 p.m. vide medico legal report Ex.DB. Non-explanation of the injuries on the person of accused by Net Ram PW-2 was taken as another circumstance to overrule his presence at the spot. The trial Court further placed reliance upon ‘Laxmi Singh v. State of Bihar’ 1976 SCC (Cri) 671 to hold that non-explanation of injuries can be construed to the disadvantage of the prosecution and in the facts and circumstances of the case, prosecution has suppressed the origin and genesis of the occurrence. The trial Court held that denial of the injuries on the person of accused by the witness 5 Criminal Appeal No.384-DBA of 1998 makes him an unreliable witness. The trial Court further held that the defence version is probable, and formulated a view that the FIR in the facts and circumstances of the present case was not prompt. We have heard counsel for the parties. We are conscious that where the view formulated by the trial Court is one which is possible on the facts and circumstances of the case, the Court, in appeal against acquittal, shall be hesitant to disturb the same and substitute it with its own opinion. After going through the evidence, we find that the reasons stated by the trial Court to discard presence of Net Ram PW-2 at the spot, are cogent, appropriate and just. The reasoning propounded by the trial Court to hold that Net Ram PW-2, the solitary eye witness, had not witnessed the occurrence, is possible on the facts and circumstances of the present case. The trial Court, following the sound rules of appreciation, has held Net Ram PW-2, the solitary witness, to be unreliable. Therefore, the same cannot be said to be perverse. Once the evidence of Net Ram PW-2 is taken out of consideration, the Court is left with the medical evidence, i.e. the injuries on the person of deceased and the recovery of knife in pursuance of the disclosure statement Ex.PD made by the accused on 31st March, 1996. Knife Ex.P1 was seized vide memo Ex.PE. Disclosure statement Ex.PD and recovery memo Ex.PE are attested by Net Ram PW-2 and his another son, namely Satish, who was given-up by the prosecution as unnecessary. Net Ram PW-2, the eye-witness, has been held to be unreliable. In these circumstances, we cannot hold recovery of the weapon to be genuine. Possibility of the same as padding cannot be ruled out. Furthermore, as per the report Ex.PN of the Forensic Science Laboratory, Madhuban, Haryana, traces of blood found on the knife were 6 Criminal Appeal No.384-DBA of 1998 too small for seeking opinion of the Serologist and thus, the recovery of knife Ex.P1 is also to be ruled out of consideration. Having ruled out the evidence of Net Ram PW-2 and recovery of weapon, i.e. knife Ex.P1 from consideration, this Court has to ponder upon as to what significance can be granted to the statement made by the accused under Section 313 Cr.P.C. In ‘Narain Singh v. State of Punjab’ (1963) 65 PLR 561, it was held that the statement of the accused recorded under Section 313 Cr.P.C. (Section 342 in old Cr.P.C.) is to be taken as a whole and the Court cannot rely upon a part of the statement, which is incriminative in nature and exclude the exculpatory part of the statement. The 3-Judge Bench of Hon’ble the Apex Court in Narain Singh’s case (supra) observed as under: “8. … … … Examination under s. 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation – if any, of the incident which forms the subject-matter of the charge and his defence. By sub-s. (3), the answers given by the accused may “be taken into consideration” at the enquiry or the trial. If the accused person in his examination under s. 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It is not open to the Court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the 7 Criminal Appeal No.384-DBA of 1998 admission cannot be used against him divorced from the explanation.” Hon’ble the Apex Court, in ‘Nishi Kant Jha v. The State of Bihar’ 1969(1) Supreme Court Cases 347, considered the statement Ex.P6 made by the accused to Mukhiya of the village. An issue arose as to whether the Court can rule out a part of the statement, being untrue, and rely upon the part which lend aid to the prosecution version? The 5- Judge Bench of Hon’ble the Apex Court answered the question in affirmative, holding that a part of the statement of the accused can be used in support of the prosecution version. The law on Section 313 Cr.P.C. was very well summed up in an erudite judgment by Hon’ble the Supreme Court in ‘Mohan Singh v. Prem Singh and another’ (2002) 10 Supreme Court Cases 236. Their Lordships held that the statement of the accused recorded under Section 313 Cr.P.C. is not a substantive piece of evidence or a substitute for the evidence of prosecution. Their Lordships, relying upon Nishi Kant Jha’s case (supra), observed as under: “27. The statement made in defence by the accused under Section 313 Cr.P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under Section 313 Cr.P.C. of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 30. The statement of the accused under Section 313 Cr.P.C. is not a substantive piece of evidence. It can be used 8 Criminal Appeal No.384-DBA of 1998 for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 Cr.P.C. cannot be made the sole basis of his conviction.” A Division Bench of Madhya Pradesh High Court, in ‘Mohan v. State of Madhya Pradesh’ 2005 (1) RCR (Criminal) 3, has summed- up the law regarding use of statement made by the accused under Section 313 Cr.P.C. It was held therein that the purpose of the Court for recording a statement of the accused under Section 313 Cr.P.C. is to acquaint him with all incriminating circumstances, which had emerged against him, so that he is not condemned unheard. But the statement recorded under Section 313 Cr.P.C., being without oath, cannot be made the sole basis for conviction of the accused, as it is not a substantive piece of evidence. The statement under Section 313 Cr.P.C. can be used only for corroboration of the prosecution case. It was held that the proof of the prosecution case against the accused must depend not on the absence of explanation on his part, but upon the positive and affirmative evidence of his guilt given by the prosecution. It was further observed that where the prosecution evidence was positively held to be untrue, the Court cannot consider the piecemeal statement of the accused. In the present case also, we have ventured to assess the prosecution case and have found that the view taken by the trial Court is one, which can be accepted. Since, the eye witness and recovery of knife 9 Criminal Appeal No.384-DBA of 1998 have been kept out of consideration, there is nothing left in the prosecution case, which can be made basis for conviction of the accused. Prosecution has failed to drive home the charge formulated against the accused. Therefore, we will not tread on the path of dissecting statement of the accused recorded under Section 313 Cr.P.C. The position of law stated above cannot make the statement of the accused under Section 313 Cr.P.C. a basis of his conviction. As a result of the discussion made above, we find no merit in the present appeal and the same is hereby dismissed. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE January 12, 2011 RC/rps 10