IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.303-DB of 2001 Date of Decision: 22.10.2009 Ram Singh Appellant Versus The State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.R.M.Jain, Advocate for the appellant Mr.Harbhajan Singh Sran, Additional Advocate General, Haryana …. Jasbir Singh, J. (Oral) Criminal Appeal No.303-DB of 2001 Appellant has filed this appeal against judgment dated 12.5.2000, vide which, he was convicted for commission of an offence punishable under Sections 364, 302, 201 IPC. In this appeal, the appellant has also laid challenge to an order dated 22.5.2000, vide which, he was sentenced to undergo imprisonment for life for commission of an offence under Section 302 IPC and to pay a fine of Rs.2000/-. He was also sentenced to under RI for seven years under Section 364 IPC and a fine of Rs.2000/- was also imposed on him. For an offence under Section 201 IPC, he was ordered to undergo RI for three years and to pay a fine of Rs.1,000/-. In default of payment of fine, he was ordered to further undergo imprisonment for different periods, specified in the order mentioned above. It was allegation against the appellant-accused that on 27.5.1997, at night he had committed murder of Raj Kumar @ Raju, by strangulating him, within the area of village Bhattu Kalan. Process of criminal justice system was started on a statement made by Smt.Permeshwari (PW9), mother of the deceased. On the above said statement, ASI Sube Singh (PW10) registered an FIR (Ex.PK) against the appellant-accused on 28.5.1997 at 8.30 am under Section 364 IPC. It is necessary to mention here that the deceased Raj Kumar @ Raju was married to daughter of the real brother of the appellant, namely, Chanan Ram. Prosecution story, as narrated by Smt.Permeshwari (PW9) and noticed by the trial Court, in paragraph No.2 of the impugned judgment, reads thus:- “On 27.5.1997 at about 9/10 p.m. accused Ram Singh had come to her house and invited her son Raju (deceased) to accompany him to ease themselves. Permeshwari (PW9) 2 Criminal Appeal No.303-DB of 2001 stating that Raju was suffering from night blindness, accused insisted, upon which Raju (deceased) accompanied accused Ram Singh. As Raju did not return home till late in the night, Permeshwari (PW9), went to the house of Chanan Ram and informed him regarding non return of Raju to house. Chanan Ram accompanied Permeshwari, went to search Raju but he could not be found. Enquiries were made from Ram Singh accused, however, nothing could be known. In the morning complainant Permeshwari accompanied Chanan Ram went to police station and report was lodged that as accused had dispute with deceased regarding lottery payment of Rs.3000/-, therefore complainant suspected Ram Singh to have abducted her son and murdered him.” On the basis of above said statement, ASI Sube Singh (PW10) started the investigation. He went to house of the appellant-accused and arrested him. On interrogation, the appellant –accused suffered a disclosure statement (Ex.PL), for having committing murder of Raju. It was revealed that he had kept the dead body concealed, in Panchayat land under the Sand. Disclosure statement (Ex.PL) was thumb marked by Permeshwari (PW9), witnessed by Chanan Ram and it was attested by ASI Risal Singh. In pursuance to the disclosure statement, dead body was recovered and it was taken in possession against recovery memo (Ex.PM), which was also attested by Chanan Ram. The investigating officer got the dead body photographed. He also took into his possession a cup (Ex.P9), a plate (Ex.P10) and a plastic pouch (Ex.P11), which were found lying at the spot. After preparing the inquest report, the dead body was sent for post-mortem 3 Criminal Appeal No.303-DB of 2001 examination, which was conducted by Dr.D.K.Dadich (PW7) in general hospital Fatehabad on 28.5.1997 at 4.00 pm. It was observed as under:- “The length of the dead body was 5’-8”. It was a dead body of young male, poorly nourished, poorly built. It was wearing black colour shoe on both feet, black colour full pant, white kameej, two white colour mattalic ring, black colour rabbar karra on the right forearm. Its eye were closed and mouth was semi open. Face, chest and scalp covered with sand. Yellow colour plastic rope around the neck tightly in three rounds. Post mortem staining was present on the back and buttock. Rigor mortis was in passing stage slightly present on lower lib. There was ligature mark present around the neck just below the thyroid cartilage length was 30 cm, breadth was 2.5 cm. The plastic yellow colour rope with three round adjacent to each other with a knot right side of neck, all around the neck was present.(emphasis supplied) Ligature mark was dark brownish in colour and was parchment like hard. On dissection extravastion of blood into subcutaneous tissue was present under the ligature mark. The carnu of hyoid bone and carnu of thyroid cartilage were fractured. Stomach was healthy and was sent to Chemical Examiner for analysis. Large intestinea was healthy and cut piece was sent for chemical analysis. Similarly large intestines were healthy and cut piece was sent for chemical examination. The cause of death in this case was due to ashphyxial shock and strangulation which was sufficient to cause death in ordinary course of nature, and it was ante-mortem in nature.” 4 Criminal Appeal No.303-DB of 2001 Dr.D.K.Dadich (PW7) sent viscera for chemical examination. Vide report (Ex.PJ), the chemical examiner gave positive report for presence of ethylalcohal in the viscera. On completion of investigation, final report was put in Court for trial. The appellant-accused was charge sheeted for commission of offences punishable under Sections 364, 302 and 201 IPC. He pleaded not guilty and claimed trial. Prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the appellant-accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him. He denied the same, claimed innocence and false implication. However, despite opportunity given, he led no evidence in defence. The trial Court on appraisal of evidence, found the appellant- accused guilty for the offence with which he was charged and accordingly convicted and sentenced him, as found mentioned in earlier part of this order. Hence, this appeal. Counsel for the appellant has vehemently contended that it is a case of no evidence against the appellant. Conviction was ordered solely on the basis of contradictory statement made by mother of the deceased, namely, Permeshwari (PW9). It was further argued that the prosecution has miserably failed to prove any motive, to commit crime, by the appellant. No independent witness was joined either at the time when alleged disclosure statement of the appellant was recorded or at the time when dead body and other material was recovered. Counsel further argued that the chain of circumstances, to convict the appellant-accused, was not complete. He also stated that the appellant was unnecessarily kept confined in jail for a period 5 Criminal Appeal No.303-DB of 2001 of more than six years. He prayed that appeal be allowed, impugned judgment and order be set aside and the appellant be acquitted of the charges framed against him. Prayer made has vehemently been opposed by the State counsel. He by making reference to the statements made by Dr.D.K.Dadich (PW7), Permeshwari (PW9) and ASI Sube Singh (PW10), argued that guilt of the appellant-accused was proved on record and the trial Court was justified in passing the judgment and order under challenge. He further argued that the deceased was ‘last seen’ with the appellant-accused at about 7.30 pm in the evening and the next day, the dead body was recovered on a disclosure statement made by the appellant. He further argued that on account of existing dispute regarding payment, there was a motive with the appellant-accused to commit the crime. He prayed that appeal, having no substance, be dismissed. In this case, no independent corroboration is available. Conviction of the appellant-accused has been ordered on the basis of circumstantial evidence (last seen with the deceased). Now, it is to be analysed whether conviction of the appellant- accused was justified, in view of evidence on record or not. Their lordships of the Supreme Court in Mohibur Rahman and another v. State of Assam, (2002) 6 Supreme Court Cases 715, has laid down the parameters, as to under what circumstances, on the basis of 'last seen' evidence, an accused can be convicted. After analyzing evidence, in that case, it was observed thus:- “The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more 6 Criminal Appeal No.303-DB of 2001 establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.” In the present case, as per statement made by Permeshwari, mother of the deceased, appellant-accused and the deceased were ‘last seen’ together at about 9/10 pm on 27.5.1997. On the next day, dead body of the deceased was recovered. The prosecution has failed to show that during the intervening period, none else has any opportunity to meet the deceased. The factum of ‘last seen’ of the accused with the deceased do not have any close proximity with the death of the deceased in view of time lost in between. The stand taken by Smt.Permeshwari, mother of the deceased is self contradictory. In Ex.PK, which was recorded at her statement, she has said that on 27.5.1997, at about 9/10 pm, on asking of the appellant-accused, the deceased went out from his house. When his son failed to return for a long time, she went and narrated the fact to Chanan Ram, father-in-law of the deceased, (who is also brother of the appellant- accused). It is further case of the prosecution that then Permeshwari and Chanan Ram enquired from the appellant-accused about whereabouts of the deceased. When the appellant-accused failed to give satisfactory reply, they became suspicious. Thereafter, they also made enquiries, about the deceased, from here and there but failed to get any clue. In the morning Smt.Permeshwari, in the presence of Chanan Ram, went to the police station 7 Criminal Appeal No.303-DB of 2001 and upon her statement, FIR was recorded against the appellant-accused. In the FIR, it was further stated that there was a dispute between the appellant and the deceased for payment of an amount of Rs.3000/- towards lottery amount. To the contrary, when Permeshwari (PW9) appeared in the witness box, in her cross-examination, she virtually demolished entire case of the prosecution. She has specifically stated that settlement regarding dispute of money, was made two years prior to the date of death. In the past two years, there was no dispute between Chanan Ram, Ram Singh and the deceased. She has further stated that during this period, the deceased and the appellant-accused used to roam together. It was further stated that the appellant-accused was blessed with a son and on account of that, he invited the deceased over a liquor party. On the date of occurrence, Raju, Chanan Ram, appellant-accused and another person continued to take liquor between 5.00 pm and 11.00 pm. Thereafter, on asking of the appellant- accused, deceased went out from his house. She has further stated that at midnight, she had gone to the house of the appellant-accused and found him sleeping. Chanan Ram was also sleeping in his house besides the appellant- accused. She disclosed factum of missing of Raj Kumar to Chanan Ram. She has specifically stated that she has seen Ram Singh at about 8.30 am in his house. Police Station Bhattu is situated at a distance of 1 ½ killa from her house. In the morning, she had a talk with head of Biradari, many people collected at the spot, then she along with 8-10 persons, gone to the police station to lodge a report. She has further stated that when her son and the appellant –accused left her house, they did not have any cup, plate or pouch with them. 8 Criminal Appeal No.303-DB of 2001 Reading of cross-examination of this witness clearly indicates that she has failed to establish that the murder was committed by the appellant-accused. For whole of the night, she continued to roam here and there and did not go to the police station, which was situated at a short distance from her house. Chanan Ram, father-in-law of the deceased was the best person to depose the circumstances, regarding efforts made, to know the whereabouts of the deceased, however, he was not produced in the witness box. It is also apparent from the records that the dead body was recovered from the land, which was ownership of the Gram Panchayat. Permeshwari (PW9) has specifically stated that the body was half buried in the sand and it was visible. She has further stated that Sarpanch of the village was called to witness recovery of the dead body, however, as per record, Sarpanch of the village had not signed the recovery memo. Though motive to commit crime is not very important in a case of murder, however, in this case, the Court is convinced that the prosecution has miserably failed to prove motive to commit the crime, which was projected by it. There is no evidence on record that there was any dispute regarding payment of money between the parties. To the contrary, Permeshwari (PW9) has stated that dispute was settled two years earlier and thereafter, the deceased and the appellant-accused used to roam together and at times, appellant-accused also served liquor to the deceased. Furthermore, as per evidence on record, the appellant and the deceased are of the same age. As per chemical examiner’s report (Ex.PJ), presence of ethylalchol, in the viscera was upto extent of 57.5 mg. % Dr.D.K.Dadich (PW7) has specifically stated that with that much amount of ethylalchol, an individual will remain conscious. If that is so, this Court 9 Criminal Appeal No.303-DB of 2001 feels that it could not have been possible for the appellant-accused to tie plastic rope around neck of the deceased, in the manner, in which it was found by the above said witness. PW7 has stated that at the time of post- mortem examination, a plastic yellow colour rope with three rounds, adjacent to each other, with a knot on right of the neck, all around was found present. No mark of struggle was seen on body of the deceased. To tie three rounds of rope, around neck of the deceased, could have been possible only if the deceased was totally immobilized, either under the influence of liquor or by somebody else. Single person, probably, may not be in a position to tie rope around the neck of an able bodied person, in the manner, as mentioned above. At the time of recovery, no footprints were seen at the spot. PW9 has specifically stated that when deceased and the appellant-accused left her house, they did not have cup, plate and pouch with them, however, at the spot, above said articles were recovered. The prosecution made no attempt to trace fingerprints on those articles, which could have been the best evidence available. The investigating officer has not joined any independent witness at any time during investigation. Father-in-law of the deceased (who is also brother of the appellant-accused) Chanan Ram was joined in the investigation but he was not produced in the witness box. It was a case of circumstantial evidence. Under what circumstances, an accused, during trial, can be convicted on the basis of such like evidence, the parameters were laid down by their lordships of the Supreme Court in Bablu alias Mubarik Hussain v. State of Rajasthan, 2007 (1) RCR (Criminal) 296. In that case, after analyzing approximately entire case law on the subject, it was observed that when a case rests only on 10 Criminal Appeal No.303-DB of 2001 circumstantial evidence, the evidence led against the accused must satisfy the following tests:- “a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. b) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; c) 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 d) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than 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. e) If the evidence is reasonably capable of two inferences, the one in favour of the accused must be accepted. f) 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. g) Where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence 11 Criminal Appeal No.303-DB of 2001 of the accused and bring the offences home beyond any reasonable doubt.” In the present case, as has been observed earlier, the prosecution has failed to form a complete chain of circumstances, on the basis of which, it can safely be said that any offence was committed by the appellant-accused. Motive to commit crime is missing. In Court, Permeshwari (PW9) has virtually demolished entire case of the prosecution. Appellant-accused and the deceased were of the same age and probably death by strangulation, in the manner, as was depicted in the post-mortem report, could not have been possible. No independent witness was joined in the investigation at any time though available. Smt.Permeshwari (PW9) mother of the deceased failed to go to the police station, at a distance of half a kilometer, to report regarding missing of her son, however, she remained satisfied by roaming here and there. The appellant has already undergone more than six years of actual sentence. In view of above, this appeal is allowed, judgment of conviction and order of sentence, under challenge, are set aside and the appellant-accused is acquitted of the charges framed against him. (Jasbir Singh) Judge 22.10.2009 (Daya Chaudhary) gk Judge 12