Crl.A. No.133-DB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.133-DB of 2002 DATE OF DECISION: August 18, 2010 ASHOK KUMAR AND ANOTHER ...APPELLANTS VERSUS STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE NAWAB SINGH. PRESENT: MR.NAMIT SHARMA, ADVOCATE FOR THE APPELLANT. MR.PRADEEP SINGH PUNIA, ADDL.A.G., HARYANA. ASHUTOSH MOHUNTA, J. The appellants have filed this appeal impugning the judgement of conviction dated 20.10.2001 and order of sentence dated 24.10.2001, passed by the Addl. Sessions Judge, Panipat whereby the appellants have been convicted under Section 302/24 IPC and have been sentenced to undergo R.I. for life and to pay a fine of Rs.2000/- each and in default of payment of payment to further undergo R.I. for two months. The FIR (Ex.PE/2) in the present case was registered by MHC Randhir Singh on the basis of the statement (Ex.PC) made by Bhajan Lal (PW1) before SI Shamsher Singh wherein it is stated that on 30.9.1997, at about 8/8.30 p.m. his brother Bittu @ Gurbachan Singh (deceased) who was working with GC Furnishing came back from his duty. After some time, two boys, namely, Ashok son of Prithi Pal, who used to reside with his sister three houses away from his house and Kuldip, son of Avtar Singh Sharma, who used to reside at Kaptan Nagar, Rajiv Colony near Police Post Killa Panipat enquired about Bittu. At that time, he and his father were present in the house. Both the accused took Bittu alongwith them as they Crl.A. No.133-DB of 2002 -2- were on visiting terms with Bittu. While going together, Ashok took an English wine bottle from his brother-in-law Om Parkash. On 1.10.1997, at about 8.30 a.m. they searched for Bittu as he had not returned back. Thereafter he and his father reached Sabzi Mandi park in search of Bittu and found the dead body of Bittu lying on the grass in the corner of the park. They found a blue mark near the left eye and the arms of Bittu and blood was oozing out from his nose and he also seemed to have received injuries on his private part. The complainant further stated that he was sure that Ashok and Kuldip had committed the murder of his brother Bittu, as Ashok had a grudge against Bittu for solemnizing his engagement prior to Ashok. Thereafter, leaving his father near the dead body of Bittu, Bhajan Lal proceeded for reporting the matter to the Police and met SI/SHO Shamsher Singh, who alongwith other Police officials was present near the Sabzi Mandi and got recorded his statement. On the basis of the aforesaid statement, FIR (Ex.PC/1) was registered against accused Ashok Kumar and Kuldip Singh. The spot was inspected by the by SI Shamsher Singh and inquest proceedings (Ex.PE/2) were initiated. Rough site plan (Ex.PK) of the place of occurrence was got prepared. From the place of occurrence, one pair of Chappal stained with blood (Ex.P1 and Ex.P2), one plastic jug and one glass, one empty bottle of foreign made liquor in which some liquor was there, one packet of cigarette, one currency note of Rs.10/- stained with blood, one piece of stone stained with blood and green grass stained with blood were made into sealed parcels and taken into possession vide recovery memo Ex.PD and the dead body of Bittu was sent for post mortem examination through Constable Ram Bhul and HC Jai Bhagwan. One packet Crl.A. No.133-DB of 2002 -3- of viscera, one packet of handkerchief and one packet of clothes of deceased, handed over by the Doctor after conducting of the post mortem examination, were also taken into possession vide recovery memo Ex.P2. On 3.10.1997, PW2 Devi Singh produced accused Ashok and Kuldip before SI Shamsher Singh by disclosing that the accused had made extra judicial confession before him that they had committed a mistake and wanted to be surrendered before the Police. After completion of the investigation, challan against the accused were filed. Both the accused were charge-sheeted for the offence under Section 302 read with Section 34 IPC to which they pleaded not guilty and claimed trial. The prosecution examined total of 6 witnesses. PW1 Bhajan Lal (complainant) deposed that on 30.9.1997, at about 8/8.30 p.m. his brother Bittu @ Gurbachan Singh (deceased) who was an employee of GGP Furnishing, Panipat came back from his duty. At that time he and his father were present at home. After about 10/15 minutes, Ashok, who was residing with his sister 3-4 houses away from his house, and Kuldip, who was residing at Rajiv Colony, Panipat came there and called his brother Bittu and Bittu, after having a talk with them, came out of the house and accompanied them. He further stated that Ashok and Kuldip were on visiting terms with them. On that night, Bittu did not turn up back at home and in the morning at about 8.00 a.m., he and his father started searching him. When at about 9.30 a.m., they reached near the New Sabzi Mandi, Panipat, they found some persons standing near the park of said Mandi. They went there and found the dead body of his brother Bittu lying in the park and injuries were there on his eye and private parts. After Crl.A. No.133-DB of 2002 -4- leaving his father there, he left for Chandni Bagh Police Station and met the police on his way and recorded his statement Ex.PC. PW2 Devi Singh deposed that accused Ashok and Kuldip were known to him for the last about 2 years. He further deposed that on 12-13 months ago, at about 12.00 noon, both the accused came to his residence and told that Police of Police Station Chandni Bagh was harrasing them. They further told that they had committed a mistake and wanted PW2 Devi Singh to make them surrender before the Police. PW2 Devi Singh further deposed that the accused made an extra-judicial confession before him that on 30.9.1997, in the evening, they brought Bittu from his house and a bottle of liquor was also brought from his brother-in-law Om Parkash and further that they alongwith Bittu consumed liquor in a park near Sabzi Mandi, Panipat and while consuming liquor Bittu called Kuldip as impotent. On this Kuldip picked up a stone and hit the same on the eye of the deceased and thereafter he gagged the mouth of Bittu by inserting a hanky and Bittu died at the spot. Thereafter accused Kuldip also narrated the entire incident as stated by co-accused Ashok. PW3 Dr. S.K. Dhattarwal, Reader, Department of Forensic Medicines, PGIMS, Rohtak, who conducted the post mortem examination on the dead body of deceased Bittu found the following injuries on the person of the deceased:- “1. There was a lacerated wound of size 1 cm over lateral end of right eye brow, bone deep with evidence of ecchymosis. 2. There was a lacerated wound of size 3 cm over lateral end of left eye brow, bone deep with ecchymosis. Crl.A. No.133-DB of 2002 -5- 3. Brain was congested, larynx, treaches were congested, lungs showed mark congestion, in heart, fluid blood was present. The Doctor opined the cause of death due to asphyxia as a result of gagging. The Doctor further opined that the gagging was due to blocking of pharynx by hanky. PW6 SI Shamsher Singh deposed that on 1.10.1997, he was posted as SHO P.S. Chandni Bagh, Panipat and on that day at about 10.00 a.m., he was present near Sabzi Mandi, Panipat alongwith other police officials. There PW1 Bhajan Lal and PW2 Gurnam Singh met him and made a statement (Ex.PC). Thereafter, said statement was sent to the Police Station for registration of case, on the basis of which FIR (Ex.PC/1) was registered. Thereafter, spot was inspected and inquest proceedings were initiated. From the place of occurrence, one pair of Chappal stained with blood (Ex.P1 and Ex.P2), one plastic jug and one glass, one empty bottle of foreign made liquor in which some liquor was there, one packet of cigarette, one currecncy note of Rs.10/- stained with blood, one piece of blood stained stone and green grass stained with blood were taken into possession after making the same into sealed parcels. The dead body of Bittu was sent for post mortem examination through Constable Ram Bhul and HC Jai Bhagwan. One packet of viscera, one packet of handkerchief and one packet of clothes of deceased, handed over by the Doctor after conducting of the post mortem examination, were also taken into possession. This witness further deposed that on 3.10.1997, PW2 Devi Singh produced accused Ashok and Kuldip before SI Shamsher Singh by disclosing that that the accused made extra judicial confession before him that they had Crl.A. No.133-DB of 2002 -6- committed a mistake and wanted to surrender before the Police. Apart from other formal witnesses, report of FSL was also tendered into evidence. As per the report, the clothes of the deceased contained human blood. Thereafter prosecution evidence was closed. Statements of the accused under Section 313 Cr.P.C. were recorded. They denied the allegations and pleaded innocence and stated they have been falsely implicated. After taking into consideration the depositions of the witnesses, extra judicial confession of the accused and the circumstantial evidence, the trial Court convicted both the accused under Section 302/34 IPC and sentenced them to undergo imprisonment as detailed in the opening paragraph. Counsel for the appellants has contended that the entire case rests on circumstantial evidence and that the prosecution has not been able to establish a complete chain of events which would suggest that it were the accused who committed the murder of Bittu @ Gurbachan Singh. Learned counsel has argued that the complainant Bhajan Lal, PW1 has stated that both the accused came to their house around 8/8.30 a.m. on 30.9.1997 and took Bittu alongwith them. However, Bittu did not return to the house in the night and it was only in the morning, around 8.00 a.m. that they saw the dead body of Bittu lying in a park in New Sabzi Mandi, Panipat. It has been contended that park in the Sabzi Mandi is very a busy place and it is highly unnatural for anyone to commit the murder at such a place. It has further contended that the accused persons were on visiting terms with the deceased and on earlier occasions also, all of them used to go out, as the accused were Crl.A. No.133-DB of 2002 -7- friendly with deceased Bittu and hence there was nothing unusual that the accused had taken along Bittu with them on the date of occurrence. It has next been contended that even the extra judicial confession made by the accused before Devi Singh PW2 also cannot be believed as Devi Singh PW2 wrongly identified accused Kuldip as Ashok. He has further submitted that Devi Singh PW2 was not a man of influence or repute in the area and therefore, his deposition cannot be accepted. It has lastly been contended that the handkerchief was stuffed in the mouth of the deceased which led to the death of Bittu. It is contended that the handkerchief has not been connected with either of the accused. On the basis of aforementioned arguments, learned counsel submits that the accused are entitled to be acquitted. The arguments raised by the counsel for the appellants have been controverted by the counsel for the State, who has submitted that the prosecution has, not only, proved the last seen evidence in the form of testimony of Bhajan Lal PW1, but the last seen evidence also stands corroborated by the extra judicial confession made by the accused before Devi Sngh PW2. Learned counsel has also supported the judgement of the trial Court and has contended that the appeal filed by the accused is liable to be dismissed. We have heard the counsel for the parties at length. The entire case of the prosecution rests on circumstantial evidence. Bhajan Lal PW1 has stated that both the accused were on visiting terms with his brother Bittu even prior to the occurrence. On 30.9.1997, at about 8/8.30 p.m. the accused had taken away Bittu with them and when Bittu did not return to his house till 1.10.1997, then at about 8.00 a.m. they Crl.A. No.133-DB of 2002 -8- started for his search. When they reached near the Sabzi Mandi, Panipat, at about 9.30 a.m., they found the dead body of Bittu lying in the park. They observed injuries on his eyes and private parts. A perusal of the statement of Bhajan Lal PW1 shows that the accused Ashok Kumar is the son of the brother-in-law of the uncle of the deceased and PW1. As per the deposition of PW1, the accused used to come to their residence often, as they were friendly with deceased Bittu. Thus, there was no nothing uncommon or unusual when they came to their house on 30.9.1997. The deceased used to go out with the accused on earlier occasions also. Therefore, merely, because the deceased had gone with the accused on the date of occurrence, would not be sufficient to arrive at a finding that it were the accused who committed the murder. The last seen evidence in this case is not sufficient to convict the accused and it has to be supported by other evidence in order to complete the entire chain of evidence. Now, coming to the extra judicial confession made by the accused before Devi Singh PW2 is concerned, we find that Devi Singh PW2 was a mere milk vendor. He was not a man of any influence in the locality or some one who was a leader of a repute. This witness in his cross examination had wrongly identified accused Kuldip as Ashok. He had further stated that the accused are resident of Ward No.11 of Panipat, but corrected his statement and said that accused Ashok is resident of Ward No.12. While saying so, he again wrongly identified and pinpointed accused Kuldip to be Ashok. He has further stated that the accused were known to him for the last 2/3 years only. The evidence of this witness also does not inspire confidence, as neither he was a man of repute in the area Crl.A. No.133-DB of 2002 -9- being a milk vendor, nor he could correctly identify both the accused. In his cross examination, he had even mentioned wrong residential address of the accused and thus, the extra judicial confession made by the accused before PW2 Devi Singh does not inspire confidence and as such the same cannot be believed. Furthermore, the recovery of the handkerchief from the mouth of the deceased also has not been connected with the accused. There is nothing on record to show that the handkerchief belonged to the accused and therefore, even the said recovery does not implicate the accused in any manner. Lastly, a perusal of the facts of the present case shows that the dead body of Bittu was recovered from a park near the Sabzi Mandi at Panipat. The park being near to such a busy place, it is highly improbable that no person from the public had come forward to inform the complainant and witness the occurrence. Moreover,the motive, as spelt out in the statement of Bhajan Lal, PW1, brother of the deceased, is also not sufficient to connect the accused with the crime. Bhajan Lal, PW1 has stated that the accused had committed the murder of his brother Bittu, because accused Ashok had a grudge against Bittu for solemnizing his engagement prior to Ashok. This motive is hardly sufficient to commit the murder of a person. In view of aforementioned discussion, it is clear that prosecution has not been able to prove the guilt of accused beyond any reasonable shadow of doubt. Neither last seen evidence is convincing, nor the extra judicial confession inspires confidence. Moreover, even recovery effected does not implicate the accused in any manner with the commission of crime and even the motive of committing crime is very weak. Crl.A. No.133-DB of 2002 -10- For the foregoing reasons, we are of the considered opinion that the conviction and sentence of the accused, as recorded by the trial Court, cannot be sustained. The prosecution has completely failed to connect the accused with the crime and hence we accept this appeal and set aside the judgement of conviction and order of sentence passed by the trial Court. The accused are acquitted of all the charges for which they were tried. Their bail bonds stand discharged. (ASHUTOSH MOHUNTA) JUDGE August 18, 2010 (NAWAB SINGH) Gulati JUDGE