Criminal Misc. No. M-3999 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-3999 of 2009 Date of decision: October 05, 2009 Yashveer Singh .. Petitioner v. The State of Haryana and anothers .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Mahipal Malik, Advocate for the petitioner. Ms. Ritu Punj, Deputy Advocate General, Haryana for the respondents. ... Rajesh Bindal J. The petitioner, who is brother of deceased-Narendra, has approached this Court praying for transfer of the investigation in FIR No. 149 dated 26.11.2008, registered under Section 302/34 IPC, at Police Station, Mohana, District Sonepat from Crime Branch to Central Bureau of Investigation, lacking confidence in the investigation held and presentation of challan thereafter by the State Police. Briefly, the pleaded facts are that the petitioner got the FIR registered against three persons specifically naming them in the FIR, i.e., Sandeep, Jitender and Ajit. It is pleaded that the aforesaid accused were present at the place of recovery of dead body. Their clothes were blood stained. One of the accused was having nail scratches on his face. The seat of the vehicle was also blood stained. Rs. 97,000/- belonging to the deceased were recovered from their possession and the accused had even made extra-judicial confession in the presence of Sarpanch and other villagers. Autopsy on the dead body of the deceased was conducted at General Hospital, Sonepat, where it was found that he was having multiple injuries. Instead of proceeding with the investigation in the right direction, the police framed an innocent person belonging to Sansi community. Considering the fact, complaints were made to Inspector General of Police, Rohtak Range and also to the Chief Minister, Haryana. Still further, it is stated that though later on the investigation of the case was transferred to the Crime Branch, but the object was only to shield the guilty police officials who had destroyed the evidence and it is Criminal Misc. No. M-3999 of 2009 [2] only the Central Bureau of Investigation, which can probe the matter with unbiased approach and the prayer in the present petition is for transfer of the investigation of the case to Central Bureau of Investigation. Learned counsel for the petitioner submitted that the investigating agency in the present case has totally failed in the duty entrusted to it. In fact, it is a case where the Investigating Officer at the first instance had done all whatever he could do, either by not collecting the relevant evidence or by destroying the same. Even subsequent Investigating Officer has also not proceeded in the right direction in spite of the fact that the petitioner time and again had been pointing out to him the lacuna in the investigation being carried out by him. As and when a lacuna was pointed out, it was tried to be plugged in with other created evidence and whole object was to shield the guilty and file a challan against a person, who was not at all guilty of the offence and against whom there being no evidence, may be acquitted ultimately after trial. Referring to the circumstances which, according to learned counsel for the petitioner, lead to the conclusion that in fact the persons, who were named in the FIR, are the real culprits, it was submitted that the Investigating Officer at various stages had failed to give due weightage to the fact that the deceased was admittedly in the company of the accused named in the FIR before his death. The dead body was recovered in the presence of the accused and the blood was also lying there. Even the clothes of the accused were blood stained, but still no sample of blood was taken from the spot. Even the viscera was also not preserved as the case was of circumstantial evidence. Not only this, even the blood stained clothes of the accused were not taken into possession. Samples were not collected from the blood stained seat of the vehicle in which the deceased had travelled with the accused before his murder. The factum of one of the accused having nail scratches on his face was totally ignored, besides recovery of Rs. 97,000/- belonging to the deceased from the accused. Further, it was submitted that falsification of the story sought to be projected by the investigating agency while shielding the real accused and implicating an innocent for the reasons best known to them, is evident from the fact that the offence though being cognizable, the accused named in the FIR were never arrested. Rather, one Sulender alias Subhash son of Guddu, caste Jhimar, was arrested. The story, which was projected in the application for judicial remand of Sulender alias Subhash, is totally undigestable and rather reveals much more than what is sought to be concealed by the investigating agency. To cover up the story, statement of another person, namely, Ashok Kumar was recorded in support Criminal Misc. No. M-3999 of 2009 [3] of the prosecution version. Ashok Kumar was an attendant at a liquor vend, who had allegedly seen the accused with the deceased at about 10.00/10.30 P.M. Supplementary statement of Ashok Kumar was also recorded, wherein he changed his earlier statement regarding time and persons which he had seen initially. No identification parade was made before Ashok Kumar for identification of the deceased or the accused. Though Ashok Kumar stated that Sulender was carrying a Danda, but the injury on the deceased was with a sharp edged weapon. The post- mortem report shows that two types of weapons were used. However, the story of the prosecution is that the assailants were having only one weapon. Ajaib Singh- Sarpanch, who had in fact informed the police about the dead body, was not even examined. The weapon of offence was later on shown to have been recovered from the possession of Sulender and it was carrying blood thereon, but still in the absence of blood samples of the deceased it had no value. Even motive for Sulender to commit murder of Narendra also could not be established. The projected motive to rob two mobile phones which he was carrying, is totally unbelievable as the alleged accused-Sulender was already having a mobile. It was further submitted that call details of the accused named in the FIR when related to the tower to which they were connected at the relevant time do not match with the site shown by the prosecution where they have been shown to be present at the relevant time. As far as polygraph test is concerned, learned counsel for the petitioner submitted that it is not a perfect science. Reliance was placed upon Punjab and Haryana High Court Bar Association,Chandigarh through its Secretary v. State of Punjab and others, AIR 1994 SC 1023; Braham Prakash v. State and others, 1997(1) C. C. Cases (Delhi) 212; Krishan Kumar Saini v. Union of India and others, 1997(1) C.C. Cases (Delhi) 285; Pammi alias Preeti v. State of Haryana and others, 2002(1) C. C. Cases (P&H) 33 ; Meena v. State and others, 2006(1) C. C. Cases (Delhi) 308; Ramesh Kumar i v. State (N.C.T. Of Delhi) and others, 2006(2) C.C. Cases (SC) 45; Gali Venkataiah v. State of A.P., 2007(4) C. C. Cases (SC) 193 and Central Bureau of Investigation v. The Joint Commissioner of Customs IGI Airport, New Delhi, 2006(2) C. C. Cases (Delhi) 296. Learned counsel for the State submitted that in the present case, the State itself had taken effective steps to see that fair investigation of the case is carried out. The FIR in question was registered on 26.11.2008 for the incident which occurred in the previous night. The Investigating Officer- Inspector Ram Pal, who was initially in-charge of the case, was changed and the investigation was entrusted to CIA staff on 2.12.2008. Thereafter, it was even referred to State Crime Branch. In the present case, after investigation challan has already been Criminal Misc. No. M-3999 of 2009 [4] presented. One of the accused named in the FIR, namely, Jatinder has already expired. Polygraph test of the accused has been held and nothing incriminating was found therein. On the weapon of offence recovered from Sulender, human blood was found. Once investigation of the case has already been conducted by State Crime Branch, the petitioner should have faith in this independent agency and prayer for transfer of investigation, especially when the challan has already been presented, should not be considered and the petition deserves dismissal. Heard learned counsel for the parties and perused the relevant referred record. For appreciating the contentions raised by learned counsel for the parties, it would be appropriate to extract the facts stated by the prosecution in the application for judicial remand of Sulender alias Subhash: “ Brief facts of the case are that on 26.11.2008, Inspector/SHO Rampal, P. S. Mohana along with his staff was busy in investigation of FIR No. 129/08, u/s 148/149/302/307 IPC, at village Pinana where he received a call on his official phone from Sh. Azaib Singh Sarpanch of village Jaji who informed that one young boy is lying dead in the fields of village Jaji near the extremity of village Bhatgaon and on this information Sh. Rampal Inspector/SHO, P. S. Mohana along with his staff reached at the field of Billu s/o Jile Singh Jat \r/o Nangal in the revenue estate of Jaji where Yashveer s/o Sahab Singh, brother of deceased was present near the dead body and made the statement as under: “Statement of Yashveer Singh S/o Sahab Singh Caste Jat R/o Bhatgaon Malyan, aged 27 years, I reside at the aforesaid address and doing agriculture. We are four brothers and Anand is eldest. Narendra is youngest and Anand is residing separately and we others are living jointly. I and Narendra are unmarried. We have three married sisters. My deceased brother Narendra was working as a driver with my maternal uncle's grandson Sandeep s/o Karan Singh Jat R/o Bali Chamrada for about two months. On 25.11.2008, my brother Narendra left for village Bhatgaon from village Bali in Sandeep's vehicle No. HR 26.AC-6616. Ajit R/o Village Bhagan, who is grandson of my maternal uncle, Jitender S/o Gulab Jat R/o Bali Chamrada were also with them. Today, at about 7.00 AM, I received a call at my mobile No. 9728767730 from Sandeep S/o Karan Singh R/o village Bali Chamrada who told me that their Criminal Misc. No. M-3999 of 2009 [5] vehicle has entrapped in a muddy path near Ratangarh and asked me to bring tractor to take out their vehicle. I took tractor of my friend Balraj S/o Mahabir Jat R/o Bhatgaon and reached at Ratangarh Road but the vehicle was not visible there, thereafter, I took the tractor to Garhi where their vehicle was found entrapped in a muddy path and I took out it with the help of my tractor and I took all of them to my house along with their vehicle and they all took bath at my house and ate the food. They told me that Narendra had come to house in the night itself to take out the vehicle but did not return, then I asked them why did they send him alone and any one out of them must have accompanied him. They did not talk about Narendra before coming to my house and taking food and they disclosed it only when I asked. I, Jitender and 2-3 other villagers went in search of Narendra in Sandeep's vehicle and we came to know that dead body of Narendra is lying in the fields of Jaji near the extremity of village Bhatgaon. We reached at the spot and I found that dead body of my brother was lying in reverse position and blood is oozed out from his head. Ajit, Sandeep and Jitender have committed murder of my brother Narendra. Legal action be taken against them.” The case was got registered and the investigation was carried out by Inspector Rampal SHO, P. S. Mohana. During investigation, Jitender, Sandeep and Ajit were interrogated and during interrogation they told that they went to Samalkha from Delhi in their Bolero vehicle. On the way from Samalkha to Delhi they purchased and consumed liquor at Ganaur Chowk and came from Murthal to Sonipat and from Sonipat to Machri. They consumed liquor at Machri Hotel and ate the food and became under the influence of liquor. Narendra said that we will go to village Bhatgaon through the small route passing by the side of village Garhi Hakikat. Thereafter, we left for village Bhatgaon and forgot the route due to influence of liquor. We went on a muddy path from Garhi Hakikat and our vehicle entrapped in that muddy path in the night. Narender took mobile of Jitender and Sandeep and went to take tractor. He did not come at night. We slept in the vehicle. In the morning we made a call at the mobile of Narender's brother and called tractor, which took out their vehicle. We all three went to village Bhatgaon. Later on we came to know that dead body of Narender is lying in the fields of village Jaji and Criminal Misc. No. M-3999 of 2009 [6] Narender had our two mobile phones which were not recovered. During investigation application was moved to search the call details and IMIE of mobile phone no. 9891275120 and 9711818970. It revealed that the instrument bearing IMIE No. 355733021473021 is used in SIM No. 9813225359 and when the ID of the SIM No. 9813225359 was verified it came to know that it has been used by Jitender S/o Karne R/o Palda. Said Jitender was interrogated and he told that about 1- 1-1/2 years ago he purchased the said Sim No. from Bahalgarh for Sulender S/o Guddu caste Jhimar R/o Khanabadosh and do not know where he is and he was searched. During search Sulender was arrested from village Juan on 7.12.2008 and on sustained interrogation he made a disclosure statement that in the intervening night of 25/26.11.2008 a person came at his camp and told him that he has forgotten the route. That person asked to leave him at village Bhatgaon. I asked his name and he disclosed as Narendra R/o Bhatgaon. On his request I accompanied him and consumed the liquor and became dishonest on seeing two mobile phones with him. We both started for village Bhatgaon on the side by side of the canal and from there to a muddy path. We reached at a vacant field and I attacked on his head with a spade from backside and he fell on the ground in reverse position. I also caused injuries on his person in that condition also and I took out two mobiles and Rs. 210/- from his pocket and came at my camp. I have concealed the mobile phones and the spade with which I have committed murder of Narender at village Juan towards Machri in the bushes and I can point out that place to effect the recovery and I can also point out the place of occurrence. The accused pointed out the place of occurrence and got recovered the mobile phones and the spade in pursuance to disclosure statement. But the investigation is still incomplete. Therefore, the accused be remanded to judicial custody for fourteen days.” The aforesaid version was the action, which was quite close to the registration of FIR. What emerges out from the aforesaid application is that the deceased was working as a driver with his maternal uncle's grand son -Sandeep for about two months before the incident. On 25.11.2008, the deceased had gone in Sandeep's vehicle along with Jitender and Ajit. In the morning of 26.11.2008, at 7.00 AM, the complainant, brother of the deceased, received a call on his mobile Criminal Misc. No. M-3999 of 2009 [7] from Sandeep informing that their vehicle had been trapped in a muddy path and requested him to bring the tractor to take out the vehicle. The complainant followed the instructions and reached the spot after borrowing the tractor of his friend-Balraj and took out the vehicle which was trapped in muddy path. All of them then came to the house of the complainant, took bath and ate food. It was there that the complainant was informed that his brother- Narendra (deceased) had come to the house during the previous night, but did not return back. When they went out in search of Narendra, they came to know that his dead body was lying in the fields of Jaji in village Bhatgaon. It was found that the deceased was lying in reverse position and the blood was oozing out from his head. FIR was got registered specifically naming Sandeep, Jitender and Ajit as the main accused. On interrogation, the accused informed that from Samalkha, they went to Delhi in Bolero vehicle. On the way, they purchased and consumed liquor at Ganaur Chowk and came from Murthal to Sonipat and from Sonipat to Machri. At Machri Hotel, they again consumed liquor and ate food. As they planned to go to village Bhatgaon through a short cut, however, forgot the way on account of influence of liquor. On the way, their vehicle was trapped in a muddy path during night. The deceased took mobiles of Jitender and Sandeep during night and went to take the tractor to pull the vehicle from muddy path. However, he did not come back. The accused named in the FIR, who were accompanying him, slept in the vehicle. In the morning, they made a call to the brother of the deceased and called for a tractor. Later on, Sulender was arrested on 7.12.2008, who disclosed that in the intervening night of 25/26.11.2008, a person named-Narendra came to his camp and told that he had forgotten the route for village Bhatgaon and requested him to leave him there. On his request, Sulender accompanied him. On the way, they consumed liquor and Sulender became dishonest by seeing two mobiles with him. On the way, Sulender attacked Narendra with spade. When he fell down on the ground, he took out two mobiles and Rs. 210/- from his pocket and came back to his camp. The aforesaid was the position at the time of presentation of application for remand of Sulender. The petitioner in the present case had been running from pillar to post to get fair investigation of the case conducted. Prior to the arrest of Sulender, the petitioner had written a letter to Inspector General of Police, Rohtak Range on 2.12.2008 (Annexure P.3) stating therein that due to political pressure, the police, instead of booking the real accused, his going to implicate a person belonging to Sansi community, which was found to be correct later on, when Sulender Criminal Misc. No. M-3999 of 2009 [8] belonging to Sansi community was arrested and confessed of having committed the murder. The aforesaid complaint was followed by another letter dated 5.12.2008 to Hon'ble the Chief Minister of Haryana (Annexure P4) and to the Director General of Police, Haryana (Annexure P5). When in spite of all these efforts, the investigation of the case continued in a wrong direction, the petitioner filed the present petition in this Court on 11.2.2009. Thereafter, on 27.2.2009, the police recorded the statement of Ashok Kumar under Section 161 Cr.P.C. stating that in the intervening night of 25/26.11.2008, at about 10.00 AM, four persons sitting in a Scorpio had come to his liquor vend and bought one half of ACP. After consuming the same in their vehicle, they went away. After about one-and-a-half or two hours, one of the occupants of the vehicle along with another person came there on foot and bought one more half and went away. One of the aforesaid two persons was having a Danda in his hand. Thereafter, supplementary statement of Ashok Kumar was recorded on 12.4.2009, which was totally in contradiction to the earlier statement. In the supplementary statement, he stated that during the night of 25/26.11.2008, he had closed his shop at about 9.30 and slept inside the shop. At about 12.00 mid night, four young men came and asked for two bottles of English wine, but he denied the same because the liquor vend was only for country made liquor. He did not know whose these young men were. In the aforesaid supplementary statement, it is only once four persons went to the liquor vend of Ashok Kumar. A site plan showing the locations of village Bhatgaon, Garhi Hakikat, the place where the vehicle was trapped in muddy path, jhugi of Sulender and liquor vend at Machri was also produced in court. A perusal thereof shows the place where the vehicle was trapped. The way to village Bhatgaon, where according to the case set up by the prosecution deceased-Narendera was to go, is located in opposite direction if considered the location of the jhugi of Sulender. The liquor vend from which the deceased and Sulender purchased liquor, as per the first version given by Ashok Kumar- the vendor at liquor vend, is located in altogether a different direction. It was also pointed out during the course of arguments that identification parade was not carried out before Ashok Kumar, who was added as a witness by the prosecution to recognise as to who had come to the liquor vend to ask for liquor. From the aforesaid facts, it is evident that there are number of loose ends in the investigation carried out by various authorities. The story sought to be projected by the prosecution does not sound to reason. In fact, it seems to be a case Criminal Misc. No. M-3999 of 2009 [9] of destruction of evidence at the very first instance by the Investigating Officer, who was conducting the investigation and the reason therefor is that medical examination of all the three named accused in the FIR was not conducted. The viscera of the deceased was not preserved. Blood-stained clothes of the deceased or the accused named in the FIR were not preserved. In spite of the fact that the offence being grievous, the accused named therein were not arrested. To cover up the falsification in the story at every stage, new facts were added. Even if accepted for arguments' sake, the story projected upto the stage the vehicle in which all the four persons including the deceased were travelling was stuck in the muddy path is one part, however, thereafter the same is quite shaky. There is no answer to the question as to why Narendra was sent alone during mid night to bring a tractor to take out the vehicle stuck in muddy path by handing over two mobiles to him in spite of the fact that admittedly, all the four persons were drunk. However, even in that position, they ensured that two mobile phones were handed over to Narendra, out of which one was having the facility of torch and one was having some balance for making a call as the mobile, which was having torch facility, was not having any balance amount lying in credit. Why not phone call was made by the accused during night to the brother of the deceased for bringing a tractor during night and the deceased was sent alone when admittedly in the morning, the petitioner brought the tractor on a call made by one of the accused named in the FIR. Another contradiction is that though initially, Ashok Kumar, a liquor vendor, was introduced as a witness to corroborate the story of consumption of liquor initially at about 10.30 P.M. by all the four persons and later on by two persons, namely, the deceased and Sulender. However, the same was later on denied by him at all in the supplementary statement. Not only this, in his initial statement, Ashok Kumar stated that one of the two persons, who came later to his vend, was carrying a Danda, whereas Sulender in his statement had stated that he was carrying a spade with him. His statement to