Criminal Appeal No.179-DB of 2002 1 .. .. .. .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.179-DB of 2002. Date of Decision : September 8 th, 2010 Kamal Singh and others ......Appellants Versus The State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE NAWAB SINGH Present: Ms. Baljeet K. Mann, Advocate, with Mr. APS Mann, Advocate, for the appellants. Mrs. Shubhra Singh, DAG, Haryana. for the respondent-State. NAWAB SINGH J. This appeal has been filed by above named accused-appellants against the judgment of conviction dated February 16 th, 2002 and order of sentence dated February 18 th, 2002 passed by learned Additional Sessions Judge, Gurgaon, whereby, they were convicted for the offence punishable under Sections 302 and 452 read with Section 34 of Indian Penal Code (for short “IPC”) and sentenced as under :- All the accused-appellants Offence Sentence Fine In default u/S 302/34 IPC Imprisonment for Rs. 500/- RI for one Life month. u/S 452/34 IPC RI for 2years Rs. 200/- RI for 15 days. Lakhi Ram, accused-appellant u/S 354 IPC RI for 2 years Rs. 300/-. RI for one month. The sentences were ordered to run concurrently. Criminal Appeal No.179-DB of 2002 2 .. .. .. .. 2. On May 21 st, 1999 at about 8.30 P.M., Krishan Kumar (PW-9) – author of First Information Report, was coming to his house from his shop, situated in village Jamalpur. When he reached in front of the house of Bhadlu, Lakhi Ram, accused- appellant met him and asked whether Bimla, wife of his brother Bhagwan Singh (deceased) told him about some incident. Krishan Kumar told him that Bimla (PW-11) had not revealed anything to him. Thereafter, Lakhi Ram, accused-appellant told Krishan Kumar that on May 19 th, 1999, he had given lift to Bimla in his four-wheeler and pinched her. Krishan Kumar asked Lakhi Ram that he should not have behaved in such a manner and not to tell about this to his brother Bhagwan Singh (deceased). Lakhi Ram became furious and started hurling abuses to Krishan Kumar and grappled with him. Malkhan, a passerby intervened and separated them. Krishan Kumar left for his house. Lakhi Ram followed him hurling abuses. One Master Daya Ram also came and he advised Lakhi Ram to behave properly and requested him to go to his house. Meanwhile, Hans Raj and Kamal Singh brothers of Lakhi Ram and Jagdish, accused-appellants, also reached the spot. Bhagwan Singh (deceased) also came out of his house. All the accused-appellants started kicking and fisting Krishan Kumar and Bhagwan Singh. Bhagwan Singh told the accused-appellants that they had insulted his wife by cutting a joke to defame them and even then they were being pinned-down. Raj Singh (PW-10) brother of Krishan Kumar (PW-9) and deceased also came to the spot. He was also given fist blows. Hans Raj and Kamal Kumar caught hold of Raj Singh and Lakhi Ram and Jagdish took away Bhagwan Singh in his house. Meanwhile, Lata, wife of Krishan Kumar came out of the house and took him inside the house. 3. Raj Singh (PW-10) got himself released from the clutches of Kamal Kumar and Hans Raj and went towards Bhagwan Singh's room. He (Raj Singh) saw that Lakhi Ram and Jagdish were holding Bhagwan Singh from the neck in his room. The accused- Criminal Appeal No.179-DB of 2002 3 .. .. .. .. appellants threatened him with dire consequences. Out of fear, Raj Singh went to his house. At about 11.00 PM, Lakhi Ram and Jagdish left the house of Bhagwan Singh. Thereafter, Krishan Kumar (PW-9) and Raj Singh (PW-10) entered the room of Bhagwan Singh and found him lying dead on the floor. Krishan Kumar went to the house of Dharam Singh, Sarpanch of Gram Panchayat, Jamalpur, but he was not found available. Since it was night time, they remained present at their house. Next day – May 22 nd, 1999 Dharam Singh met them and the entire incident was narrated to him. On his asking, Krishan Kumar proceeded to the Police Station to lodge the report. Madan Lal, Station House Officer, Police Station, Bilaspur, met Krishan Kumar (PW-9) on the way. He made his statement (Exhibit PC) to him. Madan Lal (PW-2) appended his endorsement (Exhibit PC/1) on the statement and sent the same to Police Station Bilaspur. First Information Report (Exhibit PC/2) was recorded. Mahabir Singh, Inspector, CIA, Gurgaon (PW-12) was entrusted the investigation of this case by Deputy Superintendent of Police (Headquarters), Gurgaon. He reached the spot. Inquest proceedings (Exhibit PG) were conducted. Rough site plan of the spot (Exhibit PD) was prepared. A piece of rope and a bundle of rope were seen lying near the dead-body of Bhagwan Singh. Both these items were taken into possession vide seizure memorandum (Exhibit PE). 4. On May 22 nd, 1999, the dead-body of the deceased was sent to General Hospital, Gurgaon. Autopsy was conducted by Dr. Sanjay Narula (PW-1). 5. Kamal Singh, Hans Raj and Lakhi Ram accused- appellants were arrested on June 8 th, 1999 and Jagdish was arrested on June 10 th, 1999 by Niadar Singh, Inspector (PW-5). 6. After completion of the investigation and other formalities, the accused-appellants were arraigned for trial. 7. Charge, in respect of commission of offence punishable under Sections 302, 452 read with Section 34 IPC and Criminal Appeal No.179-DB of 2002 4 .. .. .. .. 354 IPC was framed against the accused-appellants. They pleaded not guilty and claimed trial. 8. In support of its case, prosecution examined thirteen witnesses viz. Dr. Sanjay Narula (PW-1), Madan Lal, Sub Inspector (PW-2), Daya Ram, Assistant Sub Inspector (PW-3), Sumer Singh, Sub Inspector (PW-4), Niadar Singh, Inspector (PW- 5), Naresh Kumar (PW-6), Pawan Kumar, Photographer (PW-7), Babu Lal, Head Constable (PW-8), Krishan Kumar – complainant (PW-9), Raj Singh (PW-10), Bimla wife of the deceased (PW-11), Mahabir Singh, Inspector (PW-12) and Surender (PW-13). 9. In their examination recorded under Section 313 of the Code of Criminal Procedure, accused-appellants pleaded innocence. Jagdish stated that he was elected Sarpanch of Gram Panchayat Jamalpur by defeating Dharam Singh, who is relation of the deceased. His uncle got registered a criminal case bearing First Information Report No. 952 dated August 3, 1997 under Sections 420, 467, 468, 471 IPC in Police Station – City Gurgaon against Dharam Singh. A civil suit was also filed by his uncle against Dharam Singh. On December 31 st, 1998, one Sunil was murdered in which Lakhi Ram, co-accused was an eye-witness. First Information Report in that case was also lodged by him. The accused in that case were the supporters of Dharam Singh. It was further stated that Bhagwan Singh committed suicide. He was seen for the first time by Puja daughter of Krishan Kumar (PW-9) in the morning on May 22 nd, 1999 when she had gone to serve tea to Bhagwan Singh. Prior to that, Lata (PW-11) wife of Krishan Kumar brought milk from Shakuntla wife of Samey Singh, brother of Lakhi Ram accused. He along with his co-accused were falsely arrested in this case at the instance of Dharam Singh, who wanted to settle his score with them. Similar stances were adopted by the other accused-appellants. 10. In defence, accused-appellants examined seven witnesses. Harikesh, Constable (DW-1) has proved First Information Criminal Appeal No.179-DB of 2002 5 .. .. .. .. Report No. 952 dated July 22, 1997 registered against Dharam Singh. Usha Vohra (DW-2) an employee of Sessions Court, Gurgaon, on the basis of summoned record of the case titled Jagdish Vs. Dharam Singh proved that an Election petition was decided by Civil Judge (Senior Division), Gurgaon on December 12 th, 1997. Mohinder Singh, Constable (DW-3) proved the First Information Report No. 2 dated January 1 st, 1999 recorded on the statement of Lakhi Ram against Dinesh and others. Ram Dhari, Criminal Ahlmad to the Court of Chief Judicial Magistrate, Gurgaon (DW-4) , on the basis of the summoned record, proved complaint titled Jagdish Vs. Dharam pending in the Court of Chief Judicial Magistrate, Gurgaon. Rajender Singh (DW-5), Registration Clerk in the office of Sub Registrar, Gurgaon has proved the relinquishment deed executed by Dharam Singh in favour of Pushkar. Ram Phool Singla, Deed Writer (DW-6) proved the relinquishment deed No. 5476 dated July 22 nd, 1997 (Exhibit DG). Shakuntla wife of Samey Singh (DW-7) deposed that on May 22 nd, 1999 at about 5.45/6.00 AM, wives of Raj Singh and Krishan came to her house to take the milk. Later on, she learnt that Bhagwan Singh committed suicide. 11. The evidence on record, circumstances of the case and the arguments addressed by learned counsel for the parties have been appraised. 12. In this case, material evidence consists of statements of Dr. Sanjay Narula (PW-1), Krishan Kumar-author of First Information Report (PW-9), Raj Singh-eye witness (PW-10) and Mahabir Singh, Inspector-Investigator (PW-12). 13. Dr. Sanjay Narula conducted autopsy on the dead body of Bhagwan Singh on May 22 nd, 1999. He found three injuries on his person besides the ligature mark on the neck. The injuries were (i) two contused abrasions over left side of face near left angle of jaw 9 cm from trigus of left ear of the sizes 2 cm x 1 cm and 1 cm x ½ cm with irregular margins. There was subcutaneous ecchymosis; (ii) there was contusion over right side of chin oval, size half cm in Criminal Appeal No.179-DB of 2002 6 .. .. .. .. diameter. Cut sections showed subcutaneous ecchymosis and; (iii) contusion over the forehead just above and lateral left eye-brow of the size half cm in diameter. Cut sections showed subcutaneous ecchymosis. Ligature was irregular starting from mid line going transversely on the right side with ecchymosis 1.25 cm in width going around the neck posteriorly and absent over left side finishing 8 cm behind tragus of left ear. On cut sections, there was subcutaneous ecchymosis. In examination, the cause of death was opined to be asphyxia on account of strangulation. The Medical Officer further opined that injury No.1 could not be caused with fist blows and possibility of injuries No.2 and 3 due to fall could not be ruled out. A reading of the medical evidence shows that deceased died due to strangulation and it could not be the act of the deceased himself. So, it could not be a suicidal death. Simultaneously, it could not be accidental death. The death was homicidal. The question arising for consideration is who committed the murder ? 14. At this juncture, it is pertinent to recall the golden thread that runs through criminal jurisprudence system of the country. It is that it will be unfortunate if any perpetrator of the crime goes scot free, it will be more unfortunate and unwarranted if any innocent person is held responsible and is convicted for the offence which he never committed. 15. Now it is to be seen as to whether the prosecution could establish beyond reasonable shadow of doubt that the accused-appellants were the perpetrators of the crime. 16. Krishan Kumar (PW-9) has given the version of the occurrence which has been described in paragraphs 2 and 3 of this judgment while narrating the facts. Four brothers-Krishan Kumar (PW-9), Raj Singh (PW-10), Bhagwan Singh (deceased) and Parkash were residing separately having common boundary wall of their house. According to Krishan Kumar, he and Lakhi Ram-accused exchanged fists blows firstly at about 8.30 PM while he was returning from his shop and reached near the house of Badlu. After Criminal Appeal No.179-DB of 2002 7 .. .. .. .. exchanging fist blows while he was on his way to his house, Lakhi Ram again challenged him and once more there was exchange of hot words and fist blows. Thereafter, two brothers of Lakhi Ram, Kamal Singh and Hans Raj along with Jagdish-accused also reached the scene of occurrence. Hearing voice, Bhagwan Singh (deceased) came out of his room. Raj Singh (PW-10) also reached there. His wife took him inside his house. In cross-examination, it has been categorically stated by Krishan Kumar that he did not know how many blows were given to Bhagwan Singh (deceased) by the accused-appellants because none of the accused gave fist blows to the deceased in his presence. In view of this, Krishan Kumar can not be an eye witness of the occurrence. The eye witness account has been rendered by Raj Singh (PW-10). Per him, on the ill-starred day at about 8/8.30 PM, he was taking rest in his house. He heard noise outside his house. He came out of the house. He noticed all the four accused-appellants giving fist blows to his brother Bhagwan Singh and Krishan Kumar. He tried to intervene but Hans Raj and Kamal Singh accused caught hold of him. Lakhi Ram and Jagdish took his brother Bhagwan Singh inside his house giving beating to him. He freed himself from the clutches of Hans Raj and Kamal Singh and went inside the house of Bhagwan Singh where he saw Lakhi and Jagdish-accused pulling the rope put around his neck. All the accused allegedly threatened to kill him and asked him to leave the place. He returned to his house. He kept on watching the door of the house of Bhagwan Singh. He noticed the accused-appellants leaving the house of Bhagwan Singh at about 11 PM. He then called his brother Krishan Kumar and went to the room of Bhagwan Singh and saw his brother lying dead. Krishan Kumar went to call Dharam Singh, Sarpanch but he was not available. Out of fear, he along with his brother remained sitting throughout the night in the room of Bhagwan Singh. Next morning at about 6/6.30 AM, Krishan Kumar again went to the house of Dharam Singh and on his asking, Krishan Kumar proceeded to the Police Station to lodge the report. Criminal Appeal No.179-DB of 2002 8 .. .. .. .. 17. Krishan Kumar and Raj Singh were not medically examined nor was this their case that they had marks of injuries on their person. In the statement (Exhibit DA) recorded by the Police under Section 161 of Code of Criminal procedure, it was not stated by Raj Singh that he witnessed Lakhi Ram and Jagdish pulling the rope put around the neck of the deceased rather he stated that these two accused-appellants had caught hold of his brother by neck. According to him, occurrence started at about 8.30 PM and the accused left the house of Bhagwan Singh at 11 PM, meaning thereby, the accused-appellants remained present on the scene of occurrence--at the house of the deceased for about two and a half hours. It does not appeal to common sense that the murderer would remain on the spot continuously for about 2/2-1/2 hours particularly when the occurrence was witnessed by none else than the brother of the deceased who was residing in the same premises as in the case in hand. The house of Bhagwan Singh was situated in the midst of the village. In case Raj Singh was an eye-witness, his normal conduct should have been to clamour for the help after coming out of the house of Bhagwan Singh seeing the accused-appellants killing him rather than to wait at his house looking towards the door of room of Bhagwan Singh. Raj Singh even did not inform his brother Krishan Kumar that Jagdish and Lakhi Ram were pulling the rope put around the neck of Bhagwan Singh particularly when they were residing in the houses having the common boundary wall. The matter does not rest here. The name of accused-appellants figured on the first day viz May 22 nd, 1999. Mahabir Singh, Inspector Investigator issued notice under Section 160 Cr.P.C to the accused-appellants requiring their attendance before him on May 30 th, 1999. The accused-appellants made themselves available for investigation on the appointed date, that is, May 30 th, 1999. The accused-appellants were interrogated by the Investigator on May 31 st, 1999 but he let them go away because he could not ascertain the true facts of the case as deposed by the Investigator. Thereafter, no other evidence could be collected by the Criminal Appeal No.179-DB of 2002 9 .. .. .. .. Investigating Agency against the accused-appellants, a fact which is not in dispute. The prosecution witnesses were also interrogated by Mahabir Singh-Inspector (PW-12) on May 31 st, 1999. Mahabir Singh has further deposed that during investigation, Raj Singh (PW-10) had informed him that at the time of alleged occurrence, he was present in his fields and was putting cow dung manure which he brought in a tractor from village Moklawas. Mahabir Singh-Investigator has also stated that he was informed by Krishan Kumar (PW-9) during investigation that his daughter had gone to the room of Bhagwan Singh (deceased) to serve him tea in the morning of May 22 nd, 1999 but he was found dead. In view of this erratic and unconvincing evidence of the prosecution, it is proved that Raj Singh did not witness the occurrence at all rather he is an introduced witness to give the version of an eye witness account. 18. Krishan Kumar (PW-9) in his deposition has stated that after the occurrence, he immediately went to the house of Dharam Singh, Sarpanch but he was not present. Early in the morning, he again went to meet Dharam Singh. Dharam Singh asked him to report the matter to the Police as it was a case of murder. To seek the advice of Dharam Singh or to wait for his arrival to report the matter to the Police further lends substance to the plea of the accused-appellants that the case was registered against them at the behest of Dharam Singh who was inimical towards them as proved from the evidence led in defence detailed in paragraph No. 9 of this judgment. Otherwise, there was no point for the complainant to wait and seek advice of Dharam Singh in reporting the matter to the Police. 19. For the reasons aforesaid, this Court is constrained to hold that the prosecution altogether failed to bring the guilt home to the accused-appellants beyond reasonable doubt. Thus, the appeal is accepted. The impugned judgment of conviction and order of sentence passed by the learned trial Judge are set-aside and the accused-appellants are acquitted of the charges. The bail/surety Criminal Appeal No.179-DB of 2002 10 .. .. .. .. bonds shall stand discharged. (ASHUTOSH MOHUNTA) (NAWAB SINGH) JUDGE JUDGE 08.09.2010. som Whether refer to reporter : Yes