Criminal Appeal No. 466-DB of 1999 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 466-DB of 1999 Date of decision : 20.5.2008 Silak Ram @ Silak .....Appellant Versus State of Haryana ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. R.K. Dahiya, Advocate for the appellant. Mr. Ajit Attri, Advocate as Amicus Curiae Mrs. Naveen Malik, Additional Advocate General, Haryana. S. D. ANAND, J. The appellant Silk Ram @ Silk was convicted by the learned Trial Judge, on a charge under Section 302 IPC and also under Section 201 IPC. The prosecution plea, as upheld at the trial, was under:- On the relevant date, the dead body of Daya Nand deceased was found in front of a godown on the Kacha Beri Road. On being notified of that fact, Harbir Singh first informant identified the dead body to be of his uncle. It was found that there were injuries on his private parts which (injuries) had been caused by sharp edged weapon and lot of blood was oozing out from there. There were also signs of strangulation on his neck. Criminal Appeal No. 466-DB of 1999 -2- **** Deceased, a pensioner of Punjab Police, had been to Rohtak on 1.12.1995 to collect his pension but he did not return home. In the course of investigation, the investigating agency collected last seen evidence in the statement of PW-6 Sarv Sukh son of Molar Chand, also a retired pensioner, and extra judicial confession purporting to have been made by appellant PW-7 Kitab Singh. It goes without saying that the case was based upon circumstantial evidence. Learned Trial Judge placed implicit reliance on both the facets of the evidence. A reference, though with brevity, to the entire evidence produced by the prosecution would appear to be appropriate. PW-1 Constable Sumit Kumar had prepared scaled site plan Ex. PA, on the pointing of Harbir on 30.12.1995. He had also prepared scaled site plan Ex. PB. PW-2 Contable Ram Bhagat had photographed the spot and proved photographs Ex. P-1 to Ex. P-4 and also their negatives Ex. P-5 to Ex. P-8. PW-3 ASI Ram Bhaj, on receipt of ruqqa Ex. PC on 2.12.1995, recorded formal FIR Ex. PC/1. PW-4J.P. Khuller, an Officer of the State Bank at Rohtak, proved the fact of renewal of an RD at the instance of Daya Nand on 9.1.1995. PW-5 Pawan Kumar, an officer in the office of Sub Registrar, Rohtak, proved a sale deed, photostat copy whereof is Ex. PK, to which Ranbir Singh and Daya Nand were parties. The documentation afore- mentioned was in respect of a 156 sq. yards plot situated near Pahania Public School on Gohana Road. PW-6 A Sarv Sukh is the only witness of last-seen evidence. Criminal Appeal No. 466-DB of 1999 -3- **** PW-7 Kitab Singh and PW-12 Satpal are witnesses of the extra judicial confession which the appellant/Silk Ram (and the acquitted accused Ranbir) made before them on 6.12.1995. PW-8 Harbir is the first informant and a nephew of the deceased. PW-9 DSP Diwan Singh, then posted as Inspector at Police Station City, Rohtak, had filed the report under Section 173 Cr.P.C. PW-10 Dr. Nidhi Jain had conducted the post-mortem examination on the dead body of Daya Nand and found that “there was brownish black ligature mark around the neck situated anteriorly at the level of thorid, 4.5 cm below the center of chin in mid line. Its encircled neck completely all around. On right side it was 3 cm below the mastriod process, whereas on left side thelegature mark was 2 cm below left angle of mengible, 5 cm below the mestiod process. On the back it was 6 cm below the mid point of external occipital protuderance. It was situated transversely all around the neck. Width of the ligature mark varied from 7 to 10 mm. The underlying tissues including muscle of neck was deeply echymosed. Right cornu of thiorod cartridge was fractured.“ The following injuries were found on the dead body of Daya Nand:- “1. Ligature mark as described earlier. 2. A defused reddish contusion present over the hytogastric and at the base of penis, of size 8x4 cm. On dissection, underlying tissue was eccymosed. 3. Shaft of penis was contused all along its entire length and at places reddish abrasion of size varing from 2 cm x 1 cm, 3.5x 2 cm were present alone the entire length Criminal Appeal No. 466-DB of 1999 -4- **** including glance. On dissection cortora cavernose and carpora spongioscion showed infiltration of blood along the entire length including its glance. 4. A defused contusion was present on both the scorum sacs and over panerial region in an area of 20 x 12 cm. There was lacerated wound of size 7.5 cm x 2.5 cm over right scortum sac in oblique direction and a lacerated wound of size 6 x 2 cm in oblique direction was present over the left scrotum sac. On dissection the right tastics was found to be not in its respective scrotum sac rather it was ascended in the right inguinal canal. The track of the passage was eccymosed deeply in its entire length i.e. Between scrotum sac and the inquinal canal, whereas on the left side, haematocoel was seen and testicular tissues were found to be in multiple small pices of size 0.5 cm x 0.5 cm to 0.7 cm x 0.7 cm (crushed). The whole of scrotal sac was echymosed and deeper tissues in perineum were also echymosed. No ticipcal abrasion, charactericts of grazing was found over the body.” PW-11 Nafe Singh had attested the disclosure statement Ex. PT which had been made by the appellant-accused. He had also attested recovery memo Ex. PU, vide which the pension book got recovered by the appellant/accused in pursuance of his disclosure statement, was taken into possession. PW-13 ASI Sandeep Singh and PW-14 Inspector Fateh Singh are the Investigating Officers of the case. Criminal Appeal No. 466-DB of 1999 -5- **** Ex. PGG and Ex, PHH are the FSL reports. Appellant Silk Ram pleaded innocence and raised the following plea:- “Daya Nand, my brother-in-law was a vagabond, drunkard and a womaniser. He used to mal-treat my sister, for which many a times, I had asked Daya Nand deceased not to mis-behave with my sister, to which the family members of Daya Nand deceased were annoyed and for that reason, I have been falsely implicated in this case. Subsequently, my sister had also been got murdered by the family members of Daya Nand deceased. I have been falsely implicated in this case. I am innocent.” The appellant did not adduce any evidence in defence. As would be apparent from a perusal of the record, the finding recorded by the learned Trial Judge is based upon the last-seen evidence in the statement of PW-6 Sarv Sukh and extra judicial confession made by the appellant Silak Ram (and acquitted accused Rabir Singh) before PW-7 Kitab Singh and PW-12 Satpal. We have examined the criticism directed at the finding under challenge in the light of the facts obtaining on the file. We find that the impugned finding cannot be affirmed. The reasons therefor are as under:- On the own showing of PW-6 Sarv Sukh, he was not even familiar with the name of appellant-accused Silak Ram, which came to his notice 3-4 days after the impugned incident. He cannot be said to be a reliable witness inasmuch as he did not immediately bring the fact of last seen evidence to the notice of any member of the family of the deceased. He does not even claim to have been familiar with the identity of the Criminal Appeal No. 466-DB of 1999 -6- **** acquitted accused Ranbir Singh. It is not even the prosecution version that any test identification parade was held. It follows therefrom that this witness identified the appellant/accused and also acquitted for the first time in court. Insofar as the evidence pertaining to extra judicial confession (in the statement of PW-7 Kitab Singh and PW-12 Satpal) is concerned, both of them do not qualify to be the persons before whom the appellant/accused could have been actuated to make extra judicial confession. None of them holds any public office or is a village functionary. There is also no averment that they had any special qualification which could have entitled them to be recipient of extra judicial confession. It may be noticed in the context that PW-7 Kitab Singh conceded in the very opening sentence in the cross examination “None of the accused knew me prior to the day they visited in my presence house of Satpal nor accused were known to me and vice versa.” He claimed having told the police that the appellant/accused ( and also acquitted accused) visited him in the first instance and he had noticed that they were perplexed. However, when he was confronted with his statement Ex.DB( which he had allegedly made before the Investigating Agency), it transpired that the said fact does not find mention in the statement. Wiser by that experience, he informed the Court that he did not tell the police that Silak Ram had uttered that Daya Nand and Sat Pal have good relations and that witness afore-mentioned could be of some help to him. He further stated that he did not tell the police that Sat Pal informed him that family members of the deceased are in grim condition and he may not expect any concession from them. He further stated that he did not tell the police that Satpal told Silak Ram (appellant) that former would simply hand the latter over to the police. This witness is married to the niece of the deceased. All these facts indicate Criminal Appeal No. 466-DB of 1999 -7- **** that he is not a reliable witness. Insofar as PW-12 Satpal is concerned, he too does not appear to be a reliable witness. He claimed having told the police that on being told by the appellant/accused (and the acquitted accused) that they have committed a mistake, he called upon them to indicate the nature of mistake committed by them and also the cause thereof. He was confronted with Ex. DC (copy of the statement under Section 161 Cr.P.C. made by him before the Police) where these facts are not recorded. As in the case of PW-7 Kitab Singh, this witness became wiser on account of the omission afore-mentioned and proceeded to claim that he did not inform the police of certain very relevant facts including the confessional utterances attributed to the appellant/accused. The last-seen evidence and the evidence pertaining to the extra judicial confession having been discarded by this Court for noticed reasons, we do not find that mere recovery of the clothes and the foot wear of the deceased (at the instance of the appellant) would be sufficient to connect the appellant with the crime for which he stands convicted. In light of the afore-mentioned discussion, the appeal shall stand allowed. The finding of the conviction recorded by the learned Trial Judge shall stand set aside. The appellant is acquitted of the charge. ( S. D. ANAND ) JUDGE May 20, 2008 (ADARSH KUMAR GOEL) Pka JUDGE