Crl. Appeal No. 922-DB of 2003. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 922-DB of 2003. DECIDED ON : Suba Ram Appellant. VERSUS State of Haryana. Respondent. CORAM : HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE JORA SINGH Present: Mr. R.S.Cheema, Sr. Advocate, with Ms. Tanu Bedi, Advocate, for the appellant. Mr. Ravi Dutt Sharma, Deputy Advocate General, Haryana, for the respondent. JORA SINGH,J. Suba Ram has appealed against the judgment dated 1811.2003 in Sessions Case No.33/3 of 15.7.2002/21.1.2003, bearing First Information Report No.5 dated 3.1.2002, under Section 302 of the Indian Penal Code, Police Station Sadar, Karnal, whereby the appellant was convicted under sections 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine, he will have to further undergo rigorous imprisonment for a period of six months. Period already undergone by the Crl. Appeal No. 922-DB of 2003. 2 appellant during the investigation by the trial Court was ordered to be set off. Prosecution story, in brief, as per Bijender Singh son of Om Parkash is that he is the resident of village Ramba, Police Station Karnal. His father has four brothers . Lal Chand was the eldest and was employed at the Dera of Mangal Sain Nagra. Three years ago after Lal Chand, father of the complainant namely Om Parkash was employed at the Dera of Mangal Sain Nagra to supervise the work of other employees. Uncle of the complainant owned three acres of land and after his death, one killa fell to the share of Kalu Ram, one killa fell to the share of Mohinder Singh and half killa fell to the share of Om Parkash, father of the complainant; half killa fell to the share of the uncle of the complainant namely Prem Chand as per family settlement, Bijender Singh was posted as Orderly in the Court of Shri Parvin Kumar, Judicial Magistrate Ist Class, Karnal. Om Parkash at 9.30 P.M.on 2.1.2002 had gone to the Dera of Mangal Sain Nagra. While going to the Dera of Mr. Nagra on a bicycle, Om Parkash told the complainant that if another servant is not available at the Dera, then he will sleep at the Dera. Father of the complainant usually used to sleep at the Dera and return at about 5/6 A.M. Om Parkash, father of the complainant did not return from the Dera till 7/8 A.M. Then complainant alongwith his cousin brother Parvin had gone to the Dera of Mr. Nagra . Banarsi and Phulla Ram , other servants were also present in the Dera and had told the Crl. Appeal No. 922-DB of 2003. 3 complainant that Om Parkash did not attend the Dera on the previous night. Complainant became too worried. Then complainant alongwith his cousin brother Parvin had gone to Raghbir Singh Sarpanch. Story was disclosed to him. Complainant, his cousin brother Parvin and Raghbir Singh Sarpanch made an effort to search Om Parkash. There was a heavy fog in the morning. When complainant, Parvin, Raghbir Singh Sarpanch and Suba Singh, neighbourer of the complainant were on the western side of the village near Johar. Dead body of Om Parkash was noticed while lying on one side of the road having face down-word. Injuries were noted on the back side of the head and some portion of left ear was found chopped off. Om Parkash was murdered by some un-known persons Parvin and Sube Singh were left at the spot to guard the dead body. Complainant alongwith Sarpanch Raghbir Singh had gone to the police station to lodge the report. In P.P. Ramba, statement of Bijender Singh was recorded by Guraj Singh ASI. The same was read over and explained to Bijender Singh, who had signed the same in token of its correctness. After making endorsement, statement was sent to the Police Station, on the basis of which, formal First Information Report was recorded. Police Party headed by Gajraj Singh, ASI had gone to the spot alongwith complainant and Sarpanch Raghbir Singh. Rough site plan with correct marginal notes was prepared. Blood stained earth was lifted from the spot and the same was made into a sealed parcel. Parcel was Crl. Appeal No. 922-DB of 2003. 4 taken into police possession vide separate recovery memo attested by the witnesses. Inquest report was prepared. Photographer was arranged. Photographs of the place of occurrence were got clicked. SHO Balbir Singh alongwith police party came to the spot. ASI Gajraj Singh had produced the case property before the SHO. After that, investigation was conducted by Balbir Singh Inspector. He had recorded the statement of the witnesses. On return to the police station, SHO had deposited the case property with the M.H.C. While returning to the Police Station, HC Gurmail Singh had produced one parcel of the clothes worn by the deceased. On 29.4.2002 Raghbir Singh Sarpanch had produced accused before Pritam Singh ASI. Accused was interrogated and on interrogation, accused suffered a disclosure statement that he had kept concealed a lathi behind iron box in Southern Eastern side of the residential house. He knew about the same and could get the same recovered. In pursuance of the disclosure statement, accused got recovered lathi from the specified place. Sketch of the lathi was prepared. Rough site plan of the place of recovery of lathi was also prepared. The case property was deposited with the MHC. Accused had also made extra judicial confession before PW 2 Raghbir Singh Sarpanch. After completion of investigation, the accused was challaned. Challan was presented. Copies were supplied to the Crl. Appeal No. 922-DB of 2003. 5 accused and the same were found correct after scrutiny. Vide order dated 1.7.2002 passed by learned Additional Chief Judicial Magistrate, Karnal, this case was committed to the learned Court of Sessions, Karnal for trial. After hearing Public Prosecutor for the State and defence counsel for the accused and from the perusal of the documents on the file, learned Additional Sessions Judge, Karnal found that a prima facie case under Section 302 of the Indian Penal Code was made out against the accused and he was charge sheeted accordingly, to which he pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined as many as 17 witnesses and tendered certain documents. To connect the accused with the crime, main witness examined by prosecution was Dr. S.P Singal, PW-1. Dr. Singal had conducted post-mortem examination on 3.1.2002 and found the following injury on the person of the deceased. 1.A lacerated wound 3 cm x 1 cm bone deep on left occipital region obliquely placed. 2.Lacerated wound 3 cm x 1 cm bone deep on left occipital region 3 cm below injury no.1. It was horizontally placed. 3.A lacerated wound 3 cm x 7 cm bone deep on left occipital region present. 5 cm below injury no.2, horizontally placed. Crl. Appeal No. 922-DB of 2003. 6 4.A lacerated wound through and through left pinna 2 cm in size. Cause of death as per Dr. Singal was due to haemorrhage and shock as a result of the head injury. Injury was found to be ante mortem in nature and sufficient to cause the death in normal course of life. Time between injury and death is variable and between death and post- mortem within 3 to 36 hours. PW-2, Raghbir Singh, Sarpanch stated that he is the Sarpanch of Village Ramba. Om Parkash, deceased was known to him. Suba Ram being resident of his village is also known to him. On 3.1.2002, early in the morning, Parveen, Suba Singh son of Charan Singh and Bijender came to his house. Bijender informed him that his father Om Parkash has not returned to the house. Om Parkash had left the house on 2.1.2002. Then, they had gone near the fields of Hukam Chand Gupta and found the dead body of Om Parkash. He further stated that then he along with Bijender went to police Station Ramba. Gajraj Singh, ASI met them. Gajraj Singh, ASI accompanied them to the place of occurrence. Blood stained earth was lifted from the spot and the same was sealed with the seal bearing impression GRS. On 29.4.2002 at about 8:00 a.m, Suba Ram came to his house and made an extra judicial confession that he had stolen some diesel oil from the farm of Mr. Nagra. Om Parkash was supervising the farm. Om Parkash had disclosed about the theft of diesel oil by him to Mr. Nagra, onwer of the farm. Crl. Appeal No. 922-DB of 2003. 7 Suba Ram and Om Parkash were working at the farm of Mr. Nagra. Suba Ram further confessed that on 2.1.2002 at about 8:00 P.M, after consuming liquor, he went to the Majar of Baba Sheikh. There he sighted Lambardar coming to his residence. He was going towards Taraori. Om Parkash had gone to answer the call of nature just ahead of the farm of Hukam Chand. When Om Parkash came back after answering the call of nature, then he chased him. There was thick fog. Suba Ram further told him that he gave him a blow of lathi on the left side of the head. Om Parkash fell down. Two more blows were given on the head of Om Parkash. Suba Ram further told that he had a grudge against Om Parkash because Om Parkash had given information to the owner of the farm Mr. Nagra regarding theft of diesel oil by him. Lastly, Suba Ram told that police is after him and requested to produce him before the police. Then Suba Ram, was produced before ASI, Pritam Singh in the CIA Staff, Karnal. Gajraj Singh, ASI had partially investigated the case. PW-13, Lachhman Dass stated that on 29.4.2002, he was present near the bus-stand of Village Ramba. Police party was sighted along with the accused. He was joined by the police party. Police had enquired from him as to whether he knows anything about this case or not. Then, accused, Suba Ram led the police party to the fields of Hukam Chand Gupta and then to his house from where he took out a lathi and gave the same to the police. Lathi was put into a sealed Crl. Appeal No. 922-DB of 2003. 8 parcel and was taken into police possession. PW-4, Gajraj Singh, ASI had partly investigated the case, He had prepared inquest report. Injury noted on the person of the deceased was with a sharp edged weapon. PW-15, Pritam Singh, ASI, had investigated the case in hand after Gajraj Singh, ASI. On 19.4.2002, investigation of the case was entrusted to Pritam Singh, ASI. On 29.4.2002, appellant-accused was produced before Pritam Singh, ASI by Raghbir Singh, PW-2, Sarpanch of Village Ramba. Raghbir Singh was freed. After that Buta Singh came to CIA Staff . In the presence of Buta Singh and Ram Chander, accused was interrogated. Accused had suffered disclosure statement that he has kept concealed a lathi used in the crime. After that Buta Singh was freed. Appellant- accused was produced in the Court. After medical examination, accused was remanded to police custody for two days. Then Pritam Singh, ASI along with appellant-accused went to Village Ramba. Near bus stand Ramba, Lachhman Das, PW-13 met police party and was joined in the investigation of the case. In the presence of Lacchman Dass, lathi was got recovered as per the disclosure statement. PW-11, Shish Pal is the Photographer. As per Shish Pal on 3.1.2002 at 10:00 a.m, he had reached the place of occurrence, where dead body was lying by the side of pucca road. PW-16, Bijender Singh is the son of the deceased. He is the complainant but not eye witness. Crl. Appeal No. 922-DB of 2003. 9 After the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. to explain the allegations, levelled against him. Accused denied all the allegations and claimed to be innocent. The defence version of the accused was that he is innocent. He was summoned to the police on several occasions alongwith some other persons of the village. They were tortured. He was made to sit in the police station long before his arrest shown by the police. He was given beatings. Due to party faction in the village he was implicated on account of suspicion. Opportunity was given to lead defence evidence but no defence evidence was led. After hearing learned Public Prosecutor for the State and the defence counsel and also from the perusal of the record, learned Additional Sessions Judge, Karnal opined that accused committed an offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/-. In default of payment of fine, he will have to further undergo rigorous imprisonment for six months. Feeling aggrieved against the judgment dated 18.11.2003; Criminal Appeal No. 922 DB of 2003 was instituted by the accused. Vide order dated 9.12.2003, leave to appeal was admitted. We have heard Shri R.S.Cheema, Senior Advocate, with Ms. Tanu Bedi, Advocate for the appellant and Shri Ravi Crl. Appeal No. 922-DB of 2003. 10 Dutt Sharma, Deputy Advocate General, Haryana, for the respondent. Learned counsel for the appellant-accused argued that there is a delay in lodging the First Information Report. Occurrence was on the intervening night of 2/3.1.2002. First Information Report is dated 3.1.2002. Place of occurrence was at a distance of 16 kilometer from the Police Station Sadar Karnal. RUQA Ex.PH is dated 3.1.2002 at 12.30 P.M. whereas Ex.PN is the report of Forensic Science Laboratory, Madhuban. As per the report , date and time of departure of Scientific Team was at 11.00A.M. Police had information of the present occurrence at 12.30 P.M. Concerned Police party was expected to inform the Scientific Team to reach the place of occurrence for analysis purposes. Before 12.30 P.M., employee of the Forensic Science Laboratory, Madhuban had no information about the present occurrence. Prosecution is not clear how the employees of Forensic Science Laboratory, Madhuban had started from their office at 11 A.M. on 3.1.2002. Recovery of lathi as per disclosure statement is not sufficient to connect the accused with the crime because lathi was not found to be stained with blood. Occurrence had taken place on the intervening night of 2/3.1.2002. If appellant-accused had committed the crime, then there was no idea to make extra judicial confession before PW2 Raghbir Singh Sarpanch on 29.4.2002. Appellant-accused was not named in the First Information Report. The police was not after the appellant-accused, so there was no idea to confess Crl. Appeal No. 922-DB of 2003. 11 guilt before PW2 on 29.4.2002. Case is based on circumstantial evidence. Prosecution was to explain what was the motive to commit he crime. As per story, some one had stolen diesel of Mr. Nagra from the farm house. As per prosecution, Om Parkash was supervising the farm of Mr. Nagra. Om Parkash had informed Mr. Nagra that diesel was stolen by the appellant-accused. So, the appellant-accused had the motive to murder Om Parkash, but no report was made by Mr. Nagra as to whether someone had stolen diesel from his farm house. No complaint to any authority that Om Parkash had disclosed to Mr. Nagra that diesel was stolen by the appellant-accused. When there was no report to any authority regarding theft of diesel and there was no complaint by Om Parkash that diesel was stolen by Suba Ram accused-appellant, then why accused-appellant alongwith some other villagers were detained by the police. Earlier investigation of the case was with Police Station Sadar Karnal. Later on investigation was with the CIA staff, Karnal. Upto 27.4.2002, there was no clue from any side that the crime was committed by the appellant-accused who was detained by the police. Arrest of the appellant-accused was shown on 29.4.2002 and this fact is clear from Ex.DC. Request was made to the Civil Hospital, Karnal for examination of the accused. Ex.DB is the second application for medical examination, date was changed from 27.5.2002 to 1.5.2002, cutting of the date of Ex.DB shows that appellant-accused was falsely implicated in the present Crl. Appeal No. 922-DB of 2003. 12 accused, after introducing the statement of Raghbir Singh PW2 to the effect that on 29.4.2002, appellant-accused had made extra judicial confession. Recovery of lathi was shown to connect the appellant-accused with the crime which is not safe to convict the appellant-accused. In view of the extra judicial confession before PW2 Raghbir Singh and recovery of lathi as per disclosure statement when the lathi was not found to be stained with blood, particularly, when first extra judicial confession before Smt. Bala Devi is not on the file. If the appellant-accused had really committed the crime then Smt. Bala Devi, widow of the deceased should have appeared in the Court.If appellant-accused had committed crime, then why appellant-accused had chosen to make extra judicial confession dated 21.4.2002 before the widow of the deceased. The trial Court did not appreciate the legal and factual position. The learned counsel, thus, requested to accept the appeal. Learned Deputy Advocate General, Haryana, argued that appellant-accused had no enmity with the deceased. Without enmity, there was no idea to implicate the appellant-accused by leaving the real culprits. RUQA was drafted at 12.30 P.M. meaning thereby before 12.30 P.M., police had the information about the present occurrence. On receipt of information, message was sent to laboratory to send experts for investigation purposes. No effort was made by the appellant-accused to summon the record from the concerned police station that before 12.30 P.M., complainant Crl. Appeal No. 922-DB of 2003. 13 was not in the Police Station. If prosecution had the intention to implicate the accused, then name of the accused could easily be mentioned in the First Information Report. Sarpanch had no enmity with the appellant-accused. He was not related to the deceased. Sarpanch was expected to save the appellant-accused. That is why appellant-accused had made extra judicial confession before the respectable person of the village. In pursuance of the disclosure statement, lathi was got recovered. No question was put to the doctor who noted the injuries on the person of the deceased that injuries cannot be with a lathi. Nothing to presume that with the change of Investigating Officer appellant-accused was implicated in this case. No doubt, there is a cutting in the date on Ex.DB, but if appellant-accused was in the custody of the police before 29.4.2005, then complaint could easily be sent to different authorities. There was no idea to remain silent, if due to mistake date is wrongly written while preparing the document, then on the basis of cutting in the date, the entire story is not to be ignored. Trial Court rightly convicted and sentenced the appellant-accused. The learned counsel, thus, requested to dismiss the appeal. Blind murder, case is based on circumstantial evidence. No eye witness. The first point to be considered is whether there is a delay in lodging the First Information Report. Occurrence had taken place on the intervening night of 2/3.1.2002. Matter was brought to the notice of police by Bijender Singh complainant on 3.1.2002 at 12.30 P.M. First Crl. Appeal No. 922-DB of 2003. 14 Information Report was recorded at 1.20 P.M. No doubt, accused was not named in the First Information Report, but story qua reporting of the matter to the police seems to be not genuine one. Statement of Bijender Singh complainant, was recorded by Gajraj Singh, Assistant Sub Inspector on 3.1.2002 at 12.30 P.M. After that, endorsement was made and the statement was sent to the Police Station, on the basis of which, formal First Information was recorded. After recording the statement of the complainant or the First Information Report, concerned Police Station was expected to send message to the Forensic Science Laboratory to send experts to join investigation. Before 12 P.M.or 12.30 P.M. there was no idea to inform the Officials of Forensic Science Laboratory, Madhuban (Karnal), but Ex.P.N. is the Crime Scene Visit Report. PW-8, Dr. K.P.S Kushwaha in Court stated that on 3.1.2002 and on 7.1.2002, he visited the place of occurrence and gave report Ex.PN. As per Ex.PN, the Officials of the Forensic Science Laboratory, Madhuban (Karnal) had gone to the place of occurrence at 11.A.M.on 3.1.2002. Kambal was found stained with blood, cut marks in the stained area were noted. No other incriminating evidence was found on the place of occurrence. If the complainant had reported the incident to Gajraj Singh, Assistant Sub Inspector at 12.30 P.M., then how Officials of the Forensic Science Laboratory, Madhuban (Karnal) left the office to visit the place of occurrence at 11 A.M. Shish Pal, photographer appearing as PW11 on oath stated that on 3.1.2002, he had Crl. Appeal No. 922-DB of 2003. 15 reached the place of occurrence at 10 A.M. Dead body was lying near the field on the berm of the pucca road. That means statement of complainant Bijender Singh was not recorded at 12.30 P.M. No explanation is forthcoming from the side of the police as to how Officials of the Forensic Science Laboratory, Madhuban (Karnal) and photographer had left the office at 11 A.M. How the photographer had reached the place of occurrence at 10 A.M. As per Ex.PN, Crime Scene Visit Report by the Officials of the Forensic Science Laboratory, Madhuban (Karnal), only kambal stained with blood was noticed at the place of occurrence, cut mark in the stained area were also noted. After the recovery of the dead body, inquest report (Ex.PC) was prepared. As per inquest report, weapon used was sharp edged weapon, that is why cut marks in the stained area were noted. Ex.PN was not suitable to the prosecution that is why prosecution is not owing the report of Forensic Science Laboratory, Madhuban (Karnal). Trial Court did not consider the report Ex.PN whether the delay in lodging the FIR is fatal and whether statement of Bijender Kumar was actually recorded at 12:00 P.M on 3.1.2002. Next question is whether there was a motive to commit the crime or not. Motive is a double edged weapon. Motive is always in the heart of the accused. Sometime without motive heinous crimes are committed. When the case is based on circumstantial evidence, then motive assumes importance. As per evidence on the file, Om Parkash was Crl. Appeal No. 922-DB of 2003. 16 supervising the farm of Mr. Nagra. Oil was stolen from the farm of Mr. Nagra. Om Parkash reported to Mr. Nagra that oil was stolen, by Suba Ram. On account of this reason, crime was committed by the accused but Mr. Nagra was not produced to state as to whether oil was stolen from his farm. Whether Om Parkash was employed to supervise the farm. Whether Om Parkash had reported that oil was stolen by the appellant-accused. No report to any authority that any one had stolen the oil. No witness stated that Om Parkash was supervising the farm of Mr. Nagra and someone had stolen oil from the farm of Mr. Nagra. When no motive, then story becomes doubtful. That appellant-accused had murdered Om Parkash because he had informed Mr. Nagra that oil was stolen by the accused. So, in the absence of motive, evidence on the file is to be scrutinized with great care and caution. Trial Court failed to appreciate that no report by Mr. Nagra regarding theft of the oil then what was the motive to commit the crime when no eye witness. The allegation of the defence counsel was that story qua extra judicial confession is not natural one. Raghbir Singh, Sarpanch (PW2) is the main witness to connect the accused with the crime. Raghbir Singh, Sarpanch in examination-in-chief stated that on 3.1.2002 in the morning, Parveen, Sube Singh son of Charan Singh and Bijender Singh complainant came to his house and reported that Om