IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 46-DB of 2003 DATE OF DECISION : 07.01.2011 Rajesh .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Raj Mohan Singh, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Rajesh (who is in custody since the day of his arrest on 28.9.2001) was tried by the court of learned Sessions Judge, Bhiwani, for the offences under Section 302 IPC and 25, 54, 59 of the Arms Act, 1959 (hereinafter referred to as `the Act'), for committing the murder of Jai Singh, aged about 70 years, by using a sword. The trial court, vide its judgment dated 5.12.2002 convicted the appellant under Sections 302 IPC and 25 of the Act. Vide order dated 9.12.2002, passed by the trial court, he has been sentenced to undergo imprisonment for life and to pay a fine of ` 2,000/-, in default of payment of fine to undergo rigorous imprisonment for six months, under Section 302 IPC; and to undergo rigorous imprisonment for a period Crl. A. No. 46-DB of 2003 -2- of two years and to pay a fine of ` 500/-, in default of payment of fine to undergo rigorous imprisonment for three months, under Section 25 of the Act. Both the sentences have been ordered to run concurrently. Against the said judgment and order, the instant appeal has been filed by the appellant. 2. The case of the prosecution is based upon the statement of Joginder (PW.10), son of deceased Jai Singh, a resident of village Chhapar. In his statement (Ex.PG), he stated that they are three brothers. Eldest is Kamal and youngest is Ramesh. They are living separately. His father Jai Singh (deceased) was living with him. On 3.6.2001 at about 2 PM, after taking meal from his house, he (complainant Joginder) came to the Nohra, where his father was living. He heard some noise. Thereupon, he ran inside and saw that a man armed with a small sword, like big knife, was present there. Within his sight, the said person inflicted injury twice on the neck of his father. On seeing that, the complainant perplexed; and he tried to apprehend the assailant, but he succeeded in running away. The complainant did not know his name, as he was a stranger. Dharampal son of Udey Ram, a resident of the village, and Prabhu (uncle of the complainant) had also seen him running in the street. They could identify him, if he comes before them. Thereafter, several other persons came on the spot. The complainant further stated that some one had murdered his father due to old enmity or due to some other reason. The above statement (Ex.PG) was recorded by ASI Bishamber Dayal (PW.8) on 3.6.2001 at 5.30 PM, when he along with Constables Satpal and Surender reached the place of occurrence, on Crl. A. No. 46-DB of 2003 -3- receiving a telephone message from Ravinder Sarpanch that some unknown person had committed the murder of Jai Singh. On the basis of the said statement, formal FIR (Ex.PG/1) was recorded on the same day at 6.15 PM and special report was sent, which was received by the Ilaqa Magistrate in the night at 8.00 PM. On the same day, SI Ajaib Singh (PW.3) reached the place of occurrence. On spot inspection, the dead body was found lying on a cot in the corridor of the house. Blood was lying under the cot. Two marks of injuries were noticed on the neck of the deceased. Fresh blood was oozing. The inquest report (Ex.PB) was prepared, which was signed by Dharam Chand son of Prabhu Ram and Raghbir son of Data Ram. The dead body was sent to Civil Hospital, Charkhi Dadri, for post mortem examination. 3. On 4.6.2001, Dr. Anil Chaudhary along with Dr. Giri Raj conducted post mortem examination over the dead body of Jai Singh. He found two incised wounds, measuring 3 x 2 cms and 3 x ½ cm on the neck. In the opinion of the doctors, the cause of death was haemorrhage and asphyxia due to injuries on the vital organs, trachea and esophagus. All the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. The probable duration between injuries and death was within few minutes and the probable time between death and post- mortem was within 24 hours. 4. During investigation SI Ajaib Singh interrogated various persons, including Kamal (eldest son of the deceased) on the basis of Crl. A. No. 46-DB of 2003 -4- suspicion. In the middle of investigation, the Investigating Officer was changed and SI Partap Singh (PW.9) took over the investigation of this case. On 14.9.2001, he recorded the supplementary statement of the complainant as well as statement of Kamal Singh. On 19.9.2001, he recorded statements of other persons, including Hawa Singh (PW.11), before whom the accused allegedly suffered extra judicial confession. On that basis, the accused was arrested on 28.9.2001, and on 30.9.2001, his disclosure statement (Ex.PK) was recorded in the presence of complainant Joginder and his elder brother Kamal Singh. In pursuance of the said disclosure statement, on the same day, the accused got recovered a sword (Ex.P1), which was taken into possession vide recovery memo (Ex.PK/2) in the presence of the same witnesses. 5. On 30.10.2011, by showing the recovered sword (Ex.P1) to Dr. Anil Chaudhary, SI Partap Singh moved an application (Ex.PC) regarding his opinion whether the injuries on the person of the deceased could be caused with that sword. Dr. Anil Chaudhary, vide his endorsement (Ex.PC/1), opined that injuries on the person of the deceased were possible by the weapon shown to him. 6. After completion of investigation, the challan was filed and charges under Sections 302 IPC and 25 of the Act were framed against the appellant, to which he did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined twelve witnesses. Crl. A. No. 46-DB of 2003 -5- 8. PW.1 Dr. Anil Chaudhary, who along with Dr. Giri Raj conducted post mortem examination over the body of deceased Jai Singh, proved the Post Mortem Report (Ex.PA), the skiagram (Ex.PA/1) and the opinion (Ex.PC/1) given by him on the application (Ex.PC) moved by the Investigating Officer of the case. 9. PW.2 Amir Chand Taneja, Draftsman, proved the scaled site plan (Ex.PD) of the place of occurrence. 10. PW.3 SI Ajaib Singh, who conducted the initial investigation in the case, proved the inquest report (Ex.PB). In his cross-examination, he stated that investigation of the case remained with him for two months. During that period, he had interrogated few persons as suspected persons from villages Rasiwas and Kitlana. Rampal Pandit from village Kitlana, Bhim Singh and Kamal Singh son of deceased Jai Singh from village Chhapar were also interrogated as suspected persons. 11. PW.4 HC Bhudev Parshad proved the formal FIR Ex.PG/1, recorded by him. 12. PW.5 HC Kanwar Singh, PW.6 Constable Daljit Singh and PW.7 Dharam Singh SI/SHO are the formal witnesses. 13. PW.8 ASI Bishamber Dayal proved the statement (Ex.PG) of the complainant, recorded by him, on the basis of which formal FIR Ex.PG/1 was recorded. 14. PW.9 SI Partap Singh, who took over the investigation of this case from PW.3 SI Ajaib Singh and recorded supplementary statement of Crl. A. No. 46-DB of 2003 -6- complainant Joginder and statements of Kamal Singh and other persons, proved the arrest of the accused, his disclosure statement (Ex.PK) and recovery of the knife as well as chadar vide recovery memo (Ex.PK/2). He also proved the application (Ex.PC) moved by him to the Medical Officer and the opinion (Ex.PC/1) given by the Doctor. He also stated that he had recorded the statement of Hawa Singh under Section 161 Cr.P.C., before whom the accused is alleged to have made extra judicial confession. 15. PW.10 Joginder is the complainant, who supported the case of the prosecution. 16. PW.11 Hawa Singh, before whom the accused allegedly made extra judicial confession, stated that the accused came to his house and in the presence of Kanwal son of Balbir and Anil, he confessed that he had murdered Jai Singh and requested them to get the matter settled. Thereupon, this witness said that how he can get the matter compromised. Thereafter, the accused left the house. In his chief-examination as well as cross- examination, this witness has admitted that his statement was recorded by the police after 2-3 days of the arrest of the accused. 17. PW.12 Constable Balwant Singh is the formal witness. 18. The prosecution had also cited Dharampal, Prabhu, Kanwar Singh, Anil and Ravinder, but they were given up on the pretext that they have been won over by the accused. 19. In his statement under Section 313 Cr.P.C., the accused denied the incriminating evidence appearing against him and pleaded his Crl. A. No. 46-DB of 2003 -7- innocence. He stated that he was falsely challaned by calling from his house and it was a case of blind murder. He took the plea that he had taken money from his father for the purchase of buffalo and the amount was taken into custody by the police by way of personal search. His mobile telephone was also also taken by the police in their custody. However, in defence, he did not examine any witness. 20. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the extra judicial confession made by the accused before PW.11 Hawa Singh, recovery of the sword at the instance of the accused and the oral as well as the medical evidence, the trial court convicted and sentenced the appellant, as mentioned in the first para of the judgment. 21. Learned counsel for the appellant argued the present case is a case of blind murder, in which the appellant has been falsely implicated by the police in connivance with the complainant and his brother Kamal, who at a time was interrogated by the police as a suspect. According to the learned counsel, even as per the statement of complainant Joginder, the person who had caused two injuries to his father, was not known to him. The assailant was seen by him, his uncle Prabhu and Dharampal son of Udey Ram, a resident of the village. After arrest of the accused, no identification parade was conducted by the police to get the accused identified from the complainant, Prabhu and Dharampal. Even the complainant, while appearing in the witness box as PW.10, has Crl. A. No. 46-DB of 2003 -8- categorically admitted in his cross-examination that for the first time, he had seen the accused after three months of the occurrence, when he was in police custody. At that time, he was summoned by the police in the Police Station, where he was told that the accused had committed the murder of his father. Learned counsel further argued that the other two persons, namely Prabhu and Dharampal, who had allegedly seen the accused after the occurrence while running in the street, and who could have identified the accused, were not examined by the prosecution. He further argued that when the accused was arrested on 28.9.2001, he was not known to the Investigating Officer, who arrested him. At the time of his arrest, none of the aforesaid three persons, who according to the prosecution case had seen the accused at the time of commission of the offence, was present. Therefore, from the evidence, collected by the prosecution, it is not clear that on what basis and on whose identification, the appellant was arrested and identified to be the real culprit. All these factors clearly indicate that identification of the appellant-accused as the person, who had inflicted two sword blows on the person of the deceased, has not been established. 22. Learned counsel further argued that during the period, when the investigation remained with ASI Ajaib Singh, various persons, including Kamal Singh (eldest son of the deceased) were interrogated by him being suspected persons. Thereafter, the investigation was handed over to SI Partap Singh, who recorded the supplementary statement of complainant Joginder and statements of various other persons, including Kamal Singh, Crl. A. No. 46-DB of 2003 -9- Bhup Singh, Anil and Prabhu. In his supplementary statement, recorded on 14.9.2001, it was stated by complainant Joginder that his father Jai Singh (deceased) was addicted to charas and was also selling it. Several persons, including the accused, were coming to Jai Singh to sell charas, and Jai Singh was owing some money to the accused and since he did not repay the money, therefore, the accused committed murder of Jai Singh. For the first time, in the supplementary statement of the complainant recorded on 14.9.2001, the prosecution put the case that the deceased was addicted to charas and the accused was supplying charas to the deceased. Learned counsel argued that the said supplementary statement demolishes the entire case of the prosecution. If the complainant was knowing the accused, then in his initial statement (Ex.PG), he should have named the accused, when he had seen him in the day time. This further creates doubt in the prosecution case and gives support to the defence version that the accused has been falsely implicated in this case. 23. Learned counsel further argued that the extra judicial confession, alleged to be made by the accused before Hawa Singh has also not been proved. It has come on record that Hawa Singh is the real cousin of the deceased and he has admitted that four days prior to the arrest of the accused, he had made the said extra judicial confession before him, in the presence of Kanwar and Anil. None of these two persons has been examined by the prosecution. Further, in view of the fact that statement of Hawa Singh under Section 161 Cr.P.C., was recorded by the police after the arrest Crl. A. No. 46-DB of 2003 -10- of the accused, the evidence of extra judicial confession looses its significance. 24. Learned counsel further argued that recovery of the sword has not been proved. Both the recovery witnesses, namely Kamal Singh and Joginder, are the sons of the deceased, out of whom Kamal Singh was already interrogated being a suspected person in the case. No independent witness was jointed at the time of the alleged recovery. According to the learned counsel, the alleged recovery has been falsely planted upon the appellant. 25. Learned counsel further argued that in the initial prosecution version, no motive has been alleged and the only motive, introduced in the supplementary statement of complainant Joginder, has not been proved at all. 26. Learned counsel further argued that it is the specific case of the prosecution that the occurrence took place in the Nohra, which is adjacent to the house of the complainant. However, in the inquest proceedings, it has been recorded by the police that the dead body, lying on a cot, was found in the house of the complainant. In the site plan also, the dead body is shown to be lying on a cot in a room of the house of the complainant. Thus, the prosecution version and the inquest proceedings are contradictory. 27. In view of the aforesaid submissions, learned counsel argued that the appellant has been falsely implicated in this case; and the prosecution has miserably failed to establish the guilt of the accused beyond Crl. A. No. 46-DB of 2003 -11- a shadow of reasonable doubt, therefore, the impugned judgment and order of the trial court is liable to be set aside and the appellant is entitled to be acquitted of the charges framed against him. 28. On the other hand, learned counsel for the respondent-State, while supporting the impugned judgment and order, argued that in view of the extra judicial confession made by the accused before PW.11 Hawa Singh, recovery of the sword at his instance and the oral as well as the medical evidence, the trial court has rightly convicted and sentenced the appellant. 29. We have considered the submissions made by learned counsel for the parties and have gone through the impugned judgment as well as the trial court record. 30. As per the prosecution case, on 3.6.2001 at about 2.00 PM, when Jai Singh (deceased) was present in the Nohra, an unknown person armed with a small sword, like a knife, inflicted two injuries on his neck. Complainant Joginder (PW.10) had seen the said unknown person causing the injuries. He tried to apprehend him, but the assailant succeeded in running away. The assailant, while running in the street after the occurrence, was also seen by Dharampal son of Udey Ram and Prabhu (uncle of the complainant). Further, as per the prosecution case, all the three persons could identify the assailant, if he comes before them. The complainant, in his statement (Ex.PG) before the police, on the basis of which the formal FIR (Ex.PG/1) was registered, specifically stated that the assailant was a Crl. A. No. 46-DB of 2003 -12- stranger and some one had murdered his father due to old enmity or due to some other reason. After the occurrence, many persons gathered at the spot. Ravinder, Sarpanch of the village, informed the police that some unknown person had committed the murder of Jai Singh. On receiving this information, the police reached village Chhapar and recorded the statement of the complainant. As per the medical evidence, available on the record, two incised wounds, measuring 3 x 2 cms and 3 x ½ cm, were found on the neck of the deceased and in the opinion of the doctor, those injuries, which were ante-mortem in nature, were sufficient to cause death in the ordinary course of nature. The death was homicidal. 31. Now, the question arising for consideration is : whether the assailant, who caused two injuries with a sword on the neck of the deceased, due to which he died, was the appellant? It is the responsibility of the prosecution to establish the identity of the appellant as assailant in the alleged crime. In order to establish the identity of the appellant as the accused in the instant case, the prosecution is relying upon the statement of PW.10 Joginder, who had identified the appellant as accused in the court. According to the initial statement of this witness made before the police, the assailant was not known to him and he was a stranger, but he could not be identified by him as well as by Dharampal son of Udey Ram and Prabhu, who had also seen him on the day of occurrence, while running in the street. Except the complainant Joginder, the other two persons, namely Dharampal and Prabhu, though cited as witnesses, were not examined by the Crl. A. No. 46-DB of 2003 -13- prosecution on the pretext that they had been won over. Undisputedly, after the arrest of the accused in the present case, no test identification parade was conducted by the Investigating Officer. On the other hand, complainant Joginder (PW.10), in his cross-examination, has stated that for the first time, he saw the accused three months after the occurrence, when he was in police custody. He specifically stated that he was summoned in the police station, where he was told that the accused was the assailant of his father. When he went to the police station, he was accompanied by Prabhu, Hawa Singh and Kamal Singh. Thus, in our opinion, identification of the accused by the complainant in the court looses its significance. It is true that the substantive evidence against the accused is the identification made by the witness in the court, yet the test identification parade has its own importance in establishing the identity of the accused. In a criminal offence, identification serves a two-fold object. Firstly, it is meant to satisfy the investigating authorities before sending up a case for trial to Court that the person arrested, who was previously not known to the witness, was one who committed the crime; secondly, it is to satisfy the court that the accused was a real offender. Therefore, in order to have some assurance of the truth, the test identification parade is held. In the present case, not only the test identification parade was not conducted to get the accused identified from the complainant or from Dharampal or Prabhu, who had seen him on the day of commission of the crime, but Dharampal and Prabhu have also not been examined by the prosecution, to corroborate the version given by PW.10 Crl. A. No. 46-DB of 2003 -14- Joginder. Even PW.10 Joginder has stated that for the first time, he saw the accused 3 months after the occurrence, when he was in police custody. This is one aspect of the matter. 32. Further, it has come in evidence i.e. statement of PW.3 SI Ajaib Singh, who conducted the initial investigation of the case, that during the course of investigation, he interrogated several persons of villages Rasiwas and Kitlana as suspects. He also interrogated Bhim Singh from village Chhapar and Kamal Singh, the elder son of the deceased, on the basis of suspicion. This witness has admitted that the investigation remained with him for two months. Thereafter, it was handed over to SI Partap Singh (PW.9). As per the record, till the investigation remained with SI Ajaib Singh, no evidence came before him that deceased Jai Singh was addicted to charas and selling it, or that the accused used to supply charas to him and on that account, there was some dispute between them, due to which Jai Singh was murdered by the accused. As per the statement of PW.9 SI Partap Singh, investigation of the case was entrusted to him on 12.9.2001 and on 14.9.2001, he recorded the supplementary statement of complainant Joginder and the statement Kamal Singh. The statements of Hawa Singh, Anil and Prabhu under Section 161 Cr.P.C., were recorded on 19.9.2001. In his supplementary statement (which is available on the record), complainant Joginder stated that his father Jai Singh (deceased) was addicted to charas and was also selling it. Several persons, including the accused, were coming to Jai Singh to sell charas, and he (Jai Singh) had purchased 11 Kgs., of Crl. A. No. 46-DB of 2003 -15- charas at the rate of ` 2,500/- per Kg. from the accused, and in spite of 2/3 visits of the accused, Jai Singh had not paid the money to the accused, therefore, he committed murder of Jai Singh. To the similar effect, the statement of Kamal Singh was also recorded. It appears that for the first time, in the supplementary statement of the complainant, recorded by the second Investigating Officer, name of the appellant appeared as accused during investigation. In our opinion, this supplementary statement of the complainant completely goes against the prosecution case. As per the said statement, the complainant knew the accused before the occurrence, as he used to supply charas to his father. If this was the position, then at the time of the commission of the offence, when the complainant had seen the assailant, why his name was not disclosed by the complainant to the police in his initial statement. This fact creates doubt in the prosecution version. It appeared for the first time in the supplementary statement of the complainant that his deceased father was addicted to charas and the accused was supplying the charas to him and the alleged motive of committing the crime was introduced by the prosecution, while recording statements of certain persons, including Kamal Singh, who was earlier interrogated as a suspect in the crime. This is the second aspect of the matter. 33. Thirdly, as per the statement of PW.9 SI Partap Singh, the appellant was arrested on 28.9.2001 in village Gaddi Kherri, District Rohtak. He has not stated that