IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 728-DB of 2001 DATE OF DECISION : 22.03.2010 Rajiv and others .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. R.S. Cheema, Senior Advocate, with Ms. Tarannum Cheema & Sumanjit Kaur, Advocates, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. Mr. A.K. Tyagi, Advocate, for the complainant. * * * SATISH KUMAR MITTAL , J. 1. Accused Rajiv son of Surat Singh, Ravinder alias Binder son of Ram Chander and Navin son of Raghbir Singh, all residents of village Jatola, District Sonepat (hereinafter referred to as A-1, A-2 and A-3, respectively) have filed the instant appeal against the judgment dated 10.11.2001, whereby they have been convicted under Section 302 read with Section 34 IPC and Section 120-B IPC for committing the murder of Devender son of Jit Singh (hereinafter referred to as `the deceased'), a resident of the same village, and hatching a conspiracy; and the order dated Crl. A. No. 728-DB of 2001 -2- 12.11.2001, vide which each accused has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/- under Section 302/34 IPC; two years rigorous imprisonment and a fine of Rs. 500/- under Section 120-B IPC. In default of payment of fine, they have been ordered to undergo additional rigorous imprisonment for two months. However, both the sentences have been ordered to run concurrently. 2. In brief, the prosecution version, which is based upon the statement of Ravinder Singh (PW.7), elder brother of the deceased, is that the deceased along with his brother and parents was residing in village Jatola. On 8.12.1997 at about 5.30 AM, complainant Ravinder Singh and the deceased were present in a room of their house. Then A-1 and A-3 came to their house and asked the deceased to accompany them for a morning walk. Thereupon, the deceased went away with them. Lateron, at about 6.15 AM, one Jasbir Singh (PW.8), a teacher residing in the same village, came to the house of the complainant and informed that the deceased was stabbed with knife and was lying near Bala Ji Plywood Factory. After getting the said information, the complainant along with his grand-father Partap Singh (not examined) and his uncle Satbir Singh (PW.10) reached at the spot, where they saw that the deceased was lying in an unconscious condition. There were cut injuries on his neck, stomach, left shoulder, right side of chest and left side of waist. They immediately took him to Community Health Centre, Kharkhoda in a Maruti van. On examining him, Doctor P.K. Bhardwaj (PW.12) declared him dead, and at 6.50 AM, he sent ruqa (Ex.PT) Crl. A. No. 728-DB of 2001 -3- to the police about the death. Thereupon, the police party, headed by SI Suresh Kumar (PW.19), reached there and recorded the statement of the complainant at 8.15 AM. It was stated by the complainant that his brother Devender was murdered by A-1 and A-3 or they have got him murdered from some one else. In the said statement (Ex.PN), the complainant did not give any motive for committing the murder of his brother. 3. On the basis of the aforesaid statement (Ex.PN), which was recorded by SI Suresh Kumar (PW.19) on 8.12.1997 at 8.15 AM at Community Health Centre, Kharkhoda, formal FIR (Ex.PN/1) under Sections 302/120-B/34 IPC was registered against A-1 and A-3, at 8.25 AM at Police Station Kharkhoda. With regard to the said FIR, the special report was sent and reached to the Ilaqa Magistrate, Sonepat on the same day at 2.05 PM. 4. After sending the aforesaid statement for registration of the case, SI Suresh Kumar prepared the inquest report (Ex.PM) and sent the dead body of the deceased for post mortem examination. Thereafter, he along with the police party went to the place of occurrence, inspected the spot and prepared rough site plan (Ex.PY). The blood stained earth and muffler of the deceased were taken into possession vide memo (Ex.PQ). 5. On 8.12.1997 at 2.30 PM, Dr. Suman Mathur (PW.6) along with Dr. S.S. Bhogal conducted autopsy on the dead body of the deceased and they found the following nine injuries on his body : 1. Sharp cut wound 5 cms x 4 cms x muscle deep present Crl. A. No. 728-DB of 2001 -4- over the right sterno clevicular joint extending into neck. It was over in shape and clotted blood was present. 2. Triangular shape sharp cut wound present over the anterior part of right chest lying 8 cms from mid-line and 8 cms above right nipple. It was 2 x 2 x 2.5 cms deep. 3. Sharp cut wound 3 x 1 cms over the epigastrium obliquely placed going into abdominal cavity. 4. Sharp cut wound 2.5 cms x 1 cm x skin deep on the anterior surface of left shoulder. 5. Sharp cut wound 3 cm x 2 cms x skin deep over the lateral aspect of middle of left fore-arm. 6. Two abrasions present over the left mandible region one 2 x 3 cms and second 1 x 1 cms. 7. 1.5 cm x 1 cm x skin deep sharp edged wound present over the top of left scapula. 8. 1.5 cm x 1 cm x skin deep present over the back of the chest, which lying interior to left scapular. 9. 3 cms x 1 cm x bone deep sharp edged wound present over the occipital region of head. Rigor mortis were present on the body of the deceased. In the opinion of the Doctors, the cause of death of the deceased was due to shock and haemorrohage, which was internal and external in nature as a result of injuries to vital organs, like brain and liver. All the injuries were found to be ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was stated to be within few minutes and between death and post mortem, was within 24 hours. Crl. A. No. 728-DB of 2001 -5- 6. Initially, for one day, the case was investigated by SI Suresh Kumar (PW.19) and thereafter, the investigation was taken over by Inspector Satyawati (PW.17). On 14.12.1997, she recorded statements of certain witnesses and on 20.12.1997, vide recovery memo (Ex.PE), she took into possession a letter (Ex.P1) and a new year card (Ex.P2). These were written by one Reena, a girl of the village, to the deceased. On 23.12.1997, she was also interrogated by the Investigating Officer, wherein she admitted that letter (Ex.P1) and the new year card (Ex.P2) were in her own handwriting. The letter and the new year card revealed that the said girl was having love affairs with the deceased and she was also sexually exploited by A-2. 7. On 13.1.1998, A-1 and A-2 were arrested, as they were produced by Randhir Singh (PW.9), a resident of the village, before whom they alleged to have made extra judicial confession. On 16.1.1998, during interrogation of A-2, he suffered disclosure statement (Ex.PS) and in pursuance of the same, he got recovered shirt (Ex.P8), pant (Ex.P9) and sweater (Ex.P10), which were taken into possession vide recovery memo (Ex.PS/1). Though all these clothes were stated to have blood stains, but as per the report of the Forenisic Science Laboratory, Haryana, Madhuban (Karnal) (Ex.PK), no blood was found on these articles. No recovery was effected from A-1. No weapon was recovered from A-1 and A-2. It was stated that the weapon was thrown by them in the pond of the village. 8. During investigation, the police found A-3 as innocent and the Crl. A. No. 728-DB of 2001 -6- challan was filed only against A-1 and A-2. Subsequently, Jit Singh – father of the deceased, filed a private complaint, in which A-3 was also summoned. Thereafter, all the three accused were tried together for the charge under Section 302 read with Section 34 IPC and Section 120-B IPC. 9. In support of its case, in addition to the medical evidence, i.e. the Post Mortem Report (Ex.PL), proved by Dr. Suman Mathur (PW.6), the prosecution led three types of circumstantial evidence, i.e (i) last seen evidence; (ii) evidence of extra judicial confession; and (iii) evidence with regard to motive. 10. With regard to the last seen evidence, the prosecution examined PW.7 Ravinder Singh (complainant), PW.8 Jasbir Singh, PW.13 Smt. Krishna, real Bua (father's sister) of the deceased and PW.14 Jit Singh, father of the deceased. 11. PW.7 Ravinder Singh stated that on 8.12.1997 at 5.30 AM, A-1 and A-3 came to his house and took away the deceased for morning walk. He also stated that at 6.15 AM, Master Jasbir came to their house and informed that his brother was lying in an injured condition near Balaji Plywood Factory. On receipt of the said information, he along with his grand-father Partap Singh and his uncle Satbir Singh reached the spot, where the deceased was lying in an injured condition in the pond of blood. Immediately, he was taken to the Hospital. 12. PW.8 Jasbir Singh stated that on 8.12.1997, he went for morning walk, as a daily routine. After easing himself, when he was coming Crl. A. No. 728-DB of 2001 -7- towards the tubewell for washing his hands, he heard noise of Bachao- Bachao. When he returned towards his village and reached near Balaji Plywood Factory, he noticed that some migrant labourers from Bihar were standing in a circle. He also noticed that the deceased was lying in an injured condition. Then he came to the village to inform the family members of the deceased. This witness, in his statement (Ex.PR) made before the police under Section 161 Cr.P.C., stated that he saw some migrant labourers from Bihar surrounding the deceased, while A-1 was standing on the other side of the road in front of the deceased. But in the court, he had stated that except migrant labourers, he did not see any other person at the spot. Thereupon, this witness was declared hostile and was cross-examined by the prosecution. 13. PW.13 Smt. Krishna is the real Bua (father's sister) of the deceased and on the day of occurrence, she was in the house of the deceased. She stated that on 8.12.1997 at 5.30 AM, A-1 had taken the deceased from their house. At 6.30 AM, Jasbir told about the occurrence to Ravinder Singh, which was over-heard by her. On getting the information, she immediately went to the place of occurrence. In the way, A-1 met her and told her that the deceased had told him (A-1) that knife was inflicted to him, which A-1 considered as a joke. 14. PW.14 Jit Singh is the father of the deceased. He stated that on 8.12.1997, in the early morning, he had gone to answer the call of nature towards Balaji Factory. He had seen the deceased in the company of A-1 Crl. A. No. 728-DB of 2001 -8- and A-2. He asked the deceased to return at the earliest, to which he replied that he shall come back soon after the race. When he was coming to the village, near the gate of the school of the village, Navin and Bhola met him. After some time, he came to know that his son was murdered by A-1 and A- 2 alone, and none else was in league with them. However, he had categorically stated in the cross-examination that he had not seen A-1 and A-2 causing murder of the deceased. 15. In order to prove the evidence of extra judicial confession, the prosecution examined PW.9 Randhir Singh, a resident of village Jatola. He stated that on 13.1.1998, when he along with his son was present in his house, A-1 and A-2 came to him. A-1 stated that the police was after him, because he along with A-2 had caused murder of the deceased. A-1 requested this witness to produce him before the police. A-2 also made the similar statement before him. Thereafter, A-1 and A-2 were produced by him before the police. In the cross-examination, he had admitted that Partap Singh, grand-father of the deceased, had quarreled with him and they (Partap Singh and others) had caused injuries on his person, for which a case was registered against them, which ultimately ended into a compromise. 16. In order to prove the motive for committing the alleged crime, the prosecution examined PW.10 Satbir Singh and PW.15 Dhiraj Kumar. PW.10 Satbir Singh is the real uncle of the deceased. He stated that on the day of occurrence at about 6.15 AM, when he came to know from Jasbir Crl. A. No. 728-DB of 2001 -9- Singh that the deceased had been injured, he along with Partap Singh, grand-father of the deceased, and complainant Ravinder, went to the place of occurrence, near Balaji Plywood Factory, where the deceased was lying unconscious. They took him to the Hospital, where Doctor declared him dead. On 20.12.1997, this witness had handed over to the police the letter (Ex.P1) and the new year greeting card (Ex.P2). According to him, these were found by complainant Ravinder in the book of the deceased. In cross- examination, he stated that on 20.12.1997, complainant Ravinder had given the aforesaid letter and the new year greeting card to him for producing the same before the police. He further admitted that on the day of occurrence, Jit Singh (father of the deceased) was not present, whereas wife and children of complainant Ravinder were present in the house. This fact contradicts the statement of PW.7 Ravinder Singh regarding the presence of his wife in the house and the statement of PW.14 Jit Singh regarding the last seen of the accused with the deceased. PW.15 Dhiraj Kumar, a resident of village Bupania in District Jhajjar, stated that the deceased was his maternal uncle's son. According to this witness, the deceased was having love affairs with Reena. They used to meet in his presence. He further stated that A-2 is cousin (uncle's son) of Reena. About 3-4 months prior to the day of occurrence, in his presence, Reena told to the deceased that she had been sexually exploited by A-2 and she was carrying pregnancy from him and wanted to get the same aborted. He further stated that A-2 had warned that he shall take life of the deceased. About that Reena had cautioned the Crl. A. No. 728-DB of 2001 -10- deceased. This witness further stated that he identify the handwriting of Reena on letter (Ex.P1) and the greeting card (Ex.P2). Reena had passed on and delivered certain letters through him to the deceased and the deceased also used to pass on certain letters through him to Reena. On that account, he identified the handwriting of Reena. 17. In addition to the aforesaid witnesses, the prosecution also examined PW.17 Inspector Satyawati, the Investigating Officer of the case, and PW.19 Suresh Kumar SI, who had also partly conducted the investigation. The other witnesses, examined by the prosecution, were formal in nature. 18. In their statements under Section 313 Cr.P.C., the incriminating evidence appearing against the accused was put to him, which were denied by them. They pleaded innocence and false implication in the case. However, they did not lead any evidence in their defence. 19. After considering the evidence on record and hearing the arguments of learned counsel for the parties, the trial court vide judgment dated 10.11.2001 convicted all the three accused under Section 302 read with Section 34 IPC and Section 120-B IPC and vide order dated 12.11.2001, they have been sentenced, as indicated above. Against the said judgment and order, the instant appeal has been filed by the appellants. 20. Shri R.S. Cheema, Senior Advocate, learned counsel for the appellants, argued that in the instant case, the prosecution has miserably failed to prove the charge against all the three accused beyond a reasonable Crl. A. No. 728-DB of 2001 -11- doubt. The evidence led by the prosecution is wholly unreliable and untrustworthy. The first version given by complainant Ravinder Singh was based upon suspicion. He named A-1 and A-3, who had called the deceased from the house in the early hours of the day, for morning walk. It has not been explained that after the day of occurrence, why these two accused, who were residents of the same village, were not arrested even for more than one month. Further, during investigation, A-3 was found innocent. However, subsequently, on a private complaint filed by the father of the deceased, A-3 was also summoned as an additional accused. Learned counsel submitted that Jit Singh (PW.14), while appearing in the court, had categorically stated that only A-1 and A-3 were responsible for the murder of his son. He further argued that Jabir Singh (PW.8), who had allegedly seen the occurrence, had not supported the prosecution case. According to him, at the time of the occurrence, some migrant labourers from Bihar were surrounding the deceased. Except them, no other person was present at the spot. Though in his statement (Ex.PR) before the police, he stated that at that time, A-1 was standing on the other side of the road, but while appearing in the court, he has not supported the said part of his statement. While referring to the statement of Smt. Krishna, who was also a witness of the last seen, learned counsel argued that according to this witness, only A-1 met her in the way. At the spot, the deceased was lying unconscious and at that time, there was no person present there. According to the learned counsel, statements of PW.7 Ravinder Singh, PW.8 Jasbir Singh, PW.13 Smt. Krishna and PW.14 Crl. A. No. 728-DB of 2001 -12- Jit Singh, who are witnesses of last seen, are contradictory, highly improbable and unreliable. Even presence of some of them in the village on the day of occurrence is highly doubtful. 21. Learned counsel further argued that the testimony of PW.9 Randhir Singh, before whom the extra judicial confession was alleged to have been made by A-1 and A-2, is also wholly unreliable. The accused were having no relation with the said witness. He was not a man in a position. There was no reason for the accused to make extra judicial confession before him. Learned counsel further argued that it has not been explained that why the accused had made extra judicial confession before him after the expiry of more than one month of the occurrence. Learned counsel further pointed out that when this witness produced A-1 and A-2 before the police, he stated that they had made extra judicial confession before him, but his statement was not recorded by the police. Learned counsel further argued that the fact of extra judicial confession being made by A-1 and A-2 did not find mention in the remand papers of both these accused, which clearly indicates that no such extra judicial confession was made by them before PW.9 Randhir Singh. Therefore, conviction of all the three accused on the basis of such type of weak evidence is not safe. 22. Learned counsel further argued that in the instant case, the prosecution has failed to prove the alleged motive. He argued that four of the family members of the deceased, namely Ravinder Singh (brother), Smt. Krishna (Bua), Jit Singh (father) and Satbir Singh (uncle), have been Crl. A. No. 728-DB of 2001 -13- produced as witnesses, but none of them had spoken regarding the love affairs of the deceased with Reena, a resident of the same village. He further argued that as per the prosecution version, the letter (Ex.P1) and the new year greeting card (Ex.P2) were found by complainant Ravinder Singh in the house from the book of the deceased and he had handed over the same to Satbir Singh (PW.10), which were produced before the police. But in his statement, the complainant did not utter even a word about the same. He further argued that the prosecution has not proved that the letter (Ex.P1) and the greeting card (Ex.P2) were in the hand of Reena. Though PW.15 Dhiraj Kumar has been examined by the prosecution, who stated that he identified the hand-writing of Reena, because he was the mediator between Reena and the deceased for delivering letters to them, but according to the learned counsel, this statement of PW.15 Dhiraj Kumar is not sufficient to establish that the aforesaid letter (Ex.P1) and the greeting card (Ex.P2) were written by Reena. While referring to Explanation to Section 47 of the Indian Evidence Act, 1872, learned counsel argued that handwriting of a person can be proved by another person, who is acquainted with the writing of that person, when he had seen that person writing or when he had received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person had been habitually submitted to him. According to the learned counsel, none of these circumstances exist in the present case. Crl. A. No. 728-DB of 2001 -14- Learned counsel further argued that when PW.10 Satbir Singh was examined, Reena was also present in the court, but later, she was not examined by the prosecution without any explanation. According to the learned counsel, only Reena could have prove the alleged motive. Merely on the basis of the statement of PW.15 Dhiraj Kumar, it cannot be held that the prosecution has proved the alleged motive. According to the learned counsel, PW.15 Dhiraj Kumar is neither a resident of the village nor he was related to Reena. The deceased and Reena were residing in village Jalota, whereas the said witness is resident of a different village. There was no occasion for him to exchange the love letters of the deceased and Reena. Learned counsel argued that there is no evidence on record to prove that A- 2 is related to Reena. Therefore, according to the learned counsel, the prosecution has failed to establish the evidence of last seen, extra judicial confession and motive against the accused. 23. Learned counsel further argued that the prosecution has not even led any link evidence to establish that all the three accused were connected with the alleged crime. No recovery was effected from A-1 and A-3. The recovery of blood stained clothes i.e. shirt (Ex.P8), pant (Ex.P9) and sweater (Ex.P10), which were worn by A-2 at the time of the alleged occurrence, has not been connected with the alleged offence, as according to the report of the Forensic Science Laboratory, Haryana, Madhuban (Ex.PK), no blood was found on those clothes. In this case, the weapon of offence has not been recovered at all. Crl. A. No. 728-DB of 2001 -15- 24. Learned counsel further argued that in the instant case, the prosecution has not led any evidence to prove the offence of conspiracy. There is no evidence on record, which establish that the accused had ever agreed to cause death of the deceased. There is no evidence that in furtherance of a conspiracy between them, they have committed the alleged crime. Even there is no evidence that all the three accused, who are residents of the same village, are good friends and they had conspired to kill the deceased for a particular motive. In view of these submissions, learned counsel argued that case of the prosecution is based upon circumstantial evidence. Before convicting the accused on the basis of such evidence, the court is to satisfy itself as to whether the proved circumstances are sufficient to bring home satisfactorily the guilt of the accused. The established circumstances must not only be consistent with the guilt of the accused, but at the same time, they must be inconsistent with his innocence. Learned counsel argued that the circumstantial evidence led by the prosecution