Crl.Appeal No.37-DB of 1998 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. Criminal Appeal No.37-DB of 1998 Date of decision: February 06 , 2008 Mangat Ram ........ Appellant vs. State of Haryana ..Respondent CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE SHAM SUNDER. --- Present: None for the appellant. Mr. J.S.Toor,Addl.Advocate General,Haryana, for the State. -- J.S.KHEHAR,J. The instant appeal has been filed by Mangat Ram against the judgment rendered by Additional Sessions Judge, Gurgaon in Sessions Case No.2 of 1996 decided on 19.9.1997,wherein the appellant was held guilty for the murder of Madan Pal, as also against the order dated 20.9.2007 by which the appellant was sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/. In default of payment of fine he was ordered to undergo further imprisonment for three months. The prosecution version of the incident is that the deceased Madan Pal after having divorced his wife was living with his brother Raj Pal at village Kasan. Madan Pal and the accused Mangat Ram were friends and used to drink together. On 25.10.1995, Madan Pal is stated to have been taken from the residence of the complainant Raj Pal by his friend and accused Mangat Ram at 8 A.M. On the following day i.e. 26.10.1995 at about 11.15 A.M. Raj Pal was informed that his brother Madan Pal was Crl.Appeal No.37-DB of 1998 2 lying drunk at the “kotha” of Siri Chand in a drunken state. Siri Chand is the father of the accused Mangat Ram. Raj Pal along with his elder brother Rati Ram went to the “kotha” of Siri Chand where he found that his brother Madan Pal lying dead. One cup, one steel glass and one liquor bottle were also found from the “kotha”. After finding Madan Pal , the elder brother of Raj Pal, Rati Ram sent Rajpal to fetch Dharam Pal a third brother of the deceased from Bahadurgarh. Dharampal is stated to be younger to Raj Pal but older to Madan Pal. On his return from Bahadurgarh, Raj Pal was informed by his wife Roshni that the accused Mangat Ram and Lala Ram had taken Madan Pal along with them at about 8 A.M on 25.10.1995. On getting the incident's information Raj Pal made efforts to trace the accused Mangat Ram but he was absconding whereupon Raj Pal made a report to the police that Mangat Ram had quarrelled with his brother Madan Pal after taking liquor and had strangulated him to death. The First Information Report was registered vide No.242 at Police Station Bilaspur in district Gurgaon on 20.6.1995 at 5.15 P.M; whereupon, the dead body of the deceased Madan Pal was sent for post mortem examination. The post mortem examination was conducted by Dr,Parveen Bindal, Surgeon, Civil Hospital, Gurgaon. In the post mortem report bearing No.PKB-20 of 1995, cause of death mentioned is strangulation of the neck of the deceased Madan Pal by hand. On completion of investigation, a challan was presented before the Judicial Magistrate Ist Class, Gurgaon on 17.1.1996. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Magistrate by his order dated 25.1.1996, committed the case to the Court of Session for trial. Crl.Appeal No.37-DB of 1998 3 On 12.2.1996, the Additional Sessions Judge, Gurgaon framed a charge against Mangat Ram and his accomplice Lala Ram for having committed the offence of murder punishable under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code. Both the accused were confronted with the charge to which they pleaded not guilty and claimed trial. During the course of trial, the prosecution examined S.I.Satyawati who had investigated the case as PW1, Sat Narain, Superintendent from the office of the Chief Post Master General, Delhi Circle i.e. the employer under whom the accused Lala Ram was engaged has appeared as PW2. Pawan Kumar who had taken the photographs of the dead body of Madan Pal was examined as PW3. ASI Ram Singh, Police Station Nagina, was examined as PW4. The first witness examined for the incident under consideration was Rajpal i.e. the complainant. His examination was recorded as PW5, Roshani the wife of aforesaid Raj Pal was examined as PW6. The eldest brother of the complainant Raj Pal as well as of the deceased Madan Pal i.e. Ratti Ram was examined as PW7. The Lambardar of village Kasan in which the incident occurred was examined as PW8. Mahesh son of Braham Dutt appeared as PW9. Mahesh resiled from the fact that he had made any statement in connection with the alleged occurrence to the police. Jai Lal Kataria son of Nathu Ram was examined as PW10. He also resiled from the fact that he had made any statement in connection with the alleged occurrence to the police. ASI Ishwar Singh was examined as PW11. S.N.Sharma, Suprintendent from the office of the Post Master General, Delhi Circle, was examined as PW13, whereupon the prosecution evidence was closed. Crl.Appeal No.37-DB of 1998 4 Statements of the accused Mangat Ram and Lala Ram were recorded under Section 313 of the Code of Criminal Procedure on 10.6.1997. The incriminating evidence appearing on the record was put to the accused. Both the accused pleaded innocence and asserted that they had falsely been implicated due to suspicion. On 15.9.1997, both the accused made a statement that they did not desire to lead any evidence in defence. Accordingly, the defence evidence was closed on 15.9.1997. The Additional Sessions Judge, Gurgaon, delivered the judgment in Sessions Case No.2 of 1996 on 19.9.1997 wherein Mangat Ram accused was found guilty of having committed the murder of Madan Pal and was accordingly convicted under Section 302 of the Indian Penal Code. Lala Ram accused was however, acquitted of the charges framed against him on the ground that the prosecution had failed to prove his guilt. On 20.9.1997, counsel for the rival parties were heard on the question of sentence, whereupon, Mangat Ram accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/-. In default of payment of fine he was ordered to undergo further imprisonment for three months. Against the judgment of conviction and order of sentence Mangat Ram has filed the instant appeal. A perusal of the evidence produced on behalf of the prosecution as well as the judgment rendered by the Additional Sessions Judge, Gurgaon, reveals that the conviction of the appellant Mangat Ram is based on the statements of two witnesses i.e. Raj Pal PW5 and Roshni PW6 wife of Raj Pal. A perusal of the impugned judgment reveals that the trial Court placed emphatic reliance on the last seen evidence in order to record a finding of guilt against Mangat Ram accused. The aforesaid last Crl.Appeal No.37-DB of 1998 5 seen evidence emerges out of the deposition of Roshni wife of Raj Pal who appeared for the prosecution as PW6. A perusal of the statement of Roshni reveals that the deceased Madan Pal, was her brother-in-law and further that he resided in the same house along with Roshni and her husband Rajpal. As per her statement recorded before the trial Court Mangat Ram accused had come to their residence at 8.30 A.M., on 25.10.1995 in order to fetch Madan Pal. Madan Pal is stated to have been sleeping at the time when Mangat Ram had come to call him. According to the statement of Roshni, Madan Pal accompanied Mangat Ram,and that the two were joined by Lala Ram who was waiting for them outside. All the three, according to Roshni, had gone away talking to one another. Her husband Raj Pal according to Roshni PW6 left for Bahadurgarh at 8 A.M. i.e. before Mangat Ram came to fetch Madan Pal. After receiving the information about the death of Madan Pal, she had gone to the house of Mangat Ram but she could not inform her husband about the death of Madan Pal on 25.10.1995. As per her examination-in-chief, she informed her husband that Mangat Ram had come to their residence to fetch Madan Pal on 26.10.1995 i.e. on the day when her husband Raj Pal returned from Bahadurgarh. It would be pertinent to mention the statement of Roshni PW6 wife of Rajpal PW5 that she had told the police that the deceased Madan Pal had been taken away by the accused Mangat Ram at 8 A.M. on 25.10.1995.Roshni PW6 was confronted with her statement under Section 161 of the Code of Criminal Procedure recorded on 26.10.1995, where she had not made any such statement. The second witness on whom substantial reliance has been placed by the trial Court is that of Raj Pal who appeared before the trial Crl.Appeal No.37-DB of 1998 6 Court as PW5. According to the statement of Raj Pal, he came to know about the death of his brother Madan Pal from Mangtu (younger brother of the accused Mangat Ram) at about 11 A.M. on 25.10.1995. Whereupon, Raj Pal PW5 went to inform his elder brother Rati Ram about the factum of the death of their brother Madan Pal. According to the statement of Raj Pal, he along with his elder brother Rati Ram reached the “kotha” of Mangtu (younger brother of accused Mangat Ram) where they found the dead body of their younger brother Madan Pal. Along with his dead body they found one glass, one cup and an empty liquor bottle in the “kotha”. At the time when they had reached the spot, many villagers had collected there. According to Raj Pal PW5, from the place where he had found the body of his deceased brother Madan Pal ,he was sent by his elder brother Ratti Ram to Bahadurgarh to call their third brother Dharampal. According to Raj Pal, he returned to his village from Bahadurgarh on 26.10.1995, whereupon his wife Roshni told him about the fact that accused Mangat Ram and Lala Ram had come to their residence to fetch Madan Pal on the morning of 25.10.1995. According to the statement of Raj Pal, PW5, his wife Roshni PW6 also reached the spot after about one and half hours of his having reached the spot, and that, the two together remained at the spot for about one hour. According to the statement of Raj Pal PW5, he had no conversation with his wife Roshni at the spot. The third important witness examined in the matter which led to the eventual conviction of Mangat Ram was Dr. Pardeep Bindal, Surgeon, Civil Hospital, Gurgaon, who was examined as PW12. According to the statement of Dr.Pardeep Bindal PW12, he conducted the post mortem examination of the deceased Madan Pal on 26.10.1995,and prepared the Crl.Appeal No.37-DB of 1998 7 post mortem report. According to the report, the death of the deceased Madan Pal, was due to manual strangulation. The conviction of the accused Mangat Ram was recorded on the basis of the three statements analysed in the preceding paragraphs. From the statement of Dr.Pardeep Bindal PW12, it was sought to be concluded that the deceased Madan Pal was murdered by way of strangulation. The statement of Roshni PW6 was accepted to conclude that the deceased Madan Pal was last seen in the company of the accused Mangat Ram and Lala Ram on 25.10.1995 at 8 A.M. and his dead body was found at 11 A.M. on the same day. In addition to the above, the prosecution had relied on the statements of Raj Pal PW5 and his wife Roshni PW6 to the effect that Madan Pal deceased and Mangat Ram accused used to take drinks together. Along with the body of the deceased Madan Pal, the police recovered an empty liquor bottle besides a steel tumbler and a cup from the “kotha” of Mangtu. This, according to the trial Court substantiated the fact that Madan Pal and Mangat Ram were taking liquor together at the “kotha” of Mangtu (younger brother of accused Mangat Ram). On the basis of the aforesaid circumstantial evidence, the trial Court concluded that there was sufficient evidence to record a finding of guilt against the accused Mangat Ram. The Additional Sessions Judge, Gurgaon, vide his judgment dated 19.9.1997, therefore, held accused Mangat Ram guilty of the murder of Madan Pal. No one has appeared on behalf of accused Mangat Ram. We have, therefore, examined the evidence produced by the prosecution to determine the validity of the conviction of Mangat Ram at the hands of the trial Court. A perusal of the order of the trial Court reveals that a finding Crl.Appeal No.37-DB of 1998 8 stands recorded therein that there was no established motive for Mangat Ram accused to have murdered Madan Pal. It is, therefore, apparent that in the absence of proved motive the only evidence before the Court is circumstantial evidence. Undoubtedly a conviction can certainly be based on circumstantial evidence alone. However, in a case based on circumstantial evidence alone, it should be tested on the touchstone of law relating to circumstantial evidence laid down by the Supreme Court. In this regard it would be appropriate to refer to the judgment rendered by the Apex Court in Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, A.I.R.1952 Supreme Court 343, wherein it was held as under:- “.....In dealing with the circumstantial evidence the rules specifically applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge (1838)2 Lew wherein he said: “The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a litte, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.” 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 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. Crl.Appeal No.37-DB of 1998 9 Again, the circumstances should be of a conclusive nature and tendency and they should be such at to exclude every hypethesis 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.....” The parameters referred to above, came to be crystalised in Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 Supreme Court 1890, wherein it was held as under:- “30. .....This Court in a line of decisions has consistently held 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 or 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.” The aforesaid parameters were approved recently by the Supreme Court in Shivu vs. Registrar General, High Court of Karnataka (2007) 4 SCC 713 and in State of U.P. vs. Satish (2005) 3 SCC 114. Crl.Appeal No.37-DB of 1998 10 We have found various discrepancies in the evidence produced in this case. For instance, an apparent and obvious conflict in the statement of Roshni PW6 with that of PW5 Raj Pal on a number of material and vital issues. These conflicts render even the veracity of the last seen evidence in this case subject matter of doubt and suspicion. The aforesaid witnesses are in fact husband and wife. According to the statement of Roshni, her husband had left for Bahadurgarh at 8 A.M. on the date of death of Madan Pal i.e. on 25.10.1995. But Raj Pal PW5 states that he came to know that his brother had died at 11 A.M. on 25.10.1995 and had immediately gone to the spot after collecting his elder brother Ratti Ram. Roshni PW6 also states that she had come to know about the death of Madan Pal at about 11.15 A.M. She reiterated that her husband Raj Pal had already left for Bahadurgarh when she came to know about the death of deceased Madan Pal. Whereas, according to the statement of Raj Pal who appeared as PW5, he was informed about the death of his brother Madan Pal on 25.10.1995 itself at about 11 A.M. whereupon he along with his brother reached the “kotha” of Mangtu, after the receipt of the aforesaid information. At the “kotha” of Mangtu, according to Raj Pal PW5, they had found the body of the deceased Madan Pal, whereafter he was sent by his elder brother Rati Ram to Bahadurgarh for calling their third brother Dharampal. It therefore emerges from the statement of Raj Pal PW5 that he left for Bahadurgarh well after 11 A.M. on 25.10.1995 although according to Roshni PW6 he had left for Bahadurgarh before 8 A.M. on 25.10.1995. In the facts and circumstances of this case, it would make a world of a difference in either of the two situations mentioned above. If Raj Pal had left at 11 A.M. he would have known from his wife whether or Crl.Appeal No.37-DB of 1998 11 not the accused Mangat Ram had taken his brother Madan Pal from his house in the morning of 25.10.1995 itself. If not, he would only come to know about the said fact after his return from Bahadurgarh on 26.10.1995. Roshni PW6 is also stated to have gone to the place of occurrence after she got information about the death of Madan Pal. Despite the fact that both Raj Pal PW5 and Roshni PW6 went to the spot almost at the same time and on the same day i.e. 25.10.1995, they claim that they had not met one another at the place of the occurrence on 25.10.1995 and that they met at the place of occurrence for the first time on the following day i.e. on 26.10.1995. This is a strong contradiction on the factual position depicted in the statements of Raj Pal PW5 and Roshni PW6. Furthermore, according to the statement of Raj Pal PW5, he along with his wife Roshni remained at the spot for about one and half hours. If Raj Pal PW5 and Roshni PW6 as per their respective statements had both gone to the “kotha” of Mangtu on receipt of information about the death of Madan Pal, it is not possible for them to forget the same, as they are husband and wife. If this was so, his wife Roshni PW6 would have definitely told him that the accused Mangat Ram had taken away the deceased a few hours before the recovery of the dead body of Madan Pal. This factual position however does not emerge from the statement of Roshni PW6. In fact, according to the statement of Roshni PW6, her husband never visited the spot where the dead body was found, as he had already left for Bahadurgarh. This is another vital contradiction in the statements of Raj Pal PW5 and Roshni PW6. Roshni PW6 made a statement to the police on 26.10.1995 but did not state therein that the deceased Mangat Ram had visited their house at 8 A.M. and taken away deceased Madan Pal. Roshni PW6 was duly confronted with her said Crl.Appeal No.37-DB of 1998 12 statement during the course of her cross examination on this aspect of the matter. She however, could not tender any valid explanation. If someone had taken the deceased Madan Pal just a few hours before his dead body was found, that would have been the first information that would have been divulged by the person who had seen Madan Pal being taken away. This would be natural as well as logical, the inverse would lead to opposite. Therefore, Roshni PW6 not having disclosed in her statement to the police recorded on 26.10.1995 that the deceased Madan Pal had been taken away by the accused Mangat Ram a few hours before his dead body was found is not only unnatural but is also illogical. Even Raj Pal PW5 introduces the date 26.10.1995 when his wife Roshni told him the fact that the accused Mangat Ram had taken the deceased Madan Pal at 8 A.M. on 25.10.1995, possibly with the sole object of filling the lacuna in the evidence. The last seen evidence was, therefore, obviously introduced at some later stage. Such or similar evidence, if it was not surrounded in doubt or suspicion could have established the presence of the deceased Madan Pal and the accused Mangat Ram together in the “kotha” from where the dead body of Madan Pal was found. It cannot be forgotten that Roshni PW6 is the author of the last seen evidence which resulted in the conviction of Mangat Ram accused. She kept the said fact to herself on a number of occasions, after having come to know about the death of Madan Pal, as for instance, immediately on being informed of the same, again when she reached the place of occurrence, and also when her statement was recorded by the police on 26.10.1995. If Raj Pal PW5 and his wife Roshni PW6 were together at the place of occurrence (as per the statement of Raj Pal PW5), why did his wife Roshni not pass on this vital information to him there, Crl.Appeal No.37-DB of 1998 13 but waited to come back to their residence to do so ? It seems to us that the accused Mangat Ram was named by the family of the deceased Madan Pal merely on suspicion, as was suggested in the statement of the accused Mangat Ram recorded under Section 313 of the Code of Criminal Procedure. A perusal of the evidence produced before the trial Court leaves no doubt in our mind that introduction of the last seen evidence through Roshni PW6 was thought of after she had recorded her statement before the police on 26.10.1995. All these facts, and the discrepancies referred to above make the statements of Raj Pal PW5 and Roshni PW6 highly suspicious. Besides the statements of the two witnesses, Raj Pal PW5 and Roshni PW6, referred to above, there is no evidence whatsoever which can lead to the inference that Madan Pal and Mangat Ram were together at the “kotha” of Mangtu (younger brother of accused Mangat Ram). Interestingly in the statement of PW5 Raj Pal, the factual position asserted is that his brother Madan Pal had good relations with Mangat Ram and that there was no enmity between the two. This important piece of evidence was also not taken into consideration by the trial Court. In the aforesaid background, therefore, specially in the background of the legal position the issue of circumstantial evidence declared by the Supreme Court, it would be difficult to record a finding that the guilt of the accused Mangat Ram is cogently and