Crl.A. No.823-DB of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Crl.A. No.823-DB of 2006 DATE OF DECISION: May 19, 2011 TABASSAM ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT 2. Crl.A. No.31-DB of 2008 JALALU REHMAN & ANOTHER ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT 3. Crl.A. No.881-DB of 2006 VIJAY KAPOOR ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. K.D.S. HOODA, ADVOCATE, FOR THE APPELLANT. (IN CRL.A. NO.881-DB OF 2006) MR. BIJENDER DHANKAR, ADVOCATE FOR THE APPELLANTS. (IN CRL.A. NOS.823-DB OF 2006 AND 31-DB OF 2008) MR. S.S. RANDHAWA, ADDL. A.G. HARYANA. M.JEYAPAUL, J. 1. All the four accused, namely, Vijay Kapoor, Jalalu Rehman, Crl.A. No.823-DB of 2006 -2- Rahis Rehman and Tabassam were convicted for offences under Section 302 and 201 IPC read with Section 120-B IPC. They were sentenced to undergo life imprisonment and to pay a fine of `2000/- each and in default of payment of fine, to undergo further period of 2 years R.I. for the offence under Section 302 IPC. They were sentenced to undergo R.I. for 10 years and to pay a fine of `1000/- each for the offence under Section 120-B IPC. They were also sentenced to undergo 3 years R.I. and to pay a fine of `500/- each and in default to pay to undergo further period of R.I. for 3 months for the offence under Section 201 IPC. Accused Vijay Kapoor has preferred Crl.A. No.881-DB of 2006, accused Jalalu Rehman and Rahis Rehman have preferred Crl.A. No.31-DB of 2008 and accused Tabassam has preferred Crl.A. No.823-DB of 2006. 2. The brief case of the prosecution is as follows: Deceased Abdul Rehman @ Munna was the father of Ikram Khan and Imran Khan. They were residing at SGM Nagar, Faridabad. Abdul Rehman @ Munna used to go for morning walk daily. On 23.5.2004, at about 4.00 A.M. Abdul Rehman @ Munna went out for morning walk from his house, but did not get back. His mobile phone bearing SIM Card No.9891867476 was also found continuously switched off. As there was no clue about his whereabouts, his son Ikram Khan lodged a complaint at about 8.00 P.M. on 22.5.2004 that his father was missing. A DDR entry was made, but no case was registered. 3. Imran Khan, the other son of deceased Abdul Rehman @ Munna despatched a complaint to the Hon'ble Prime Minister of India on Crl.A. No.823-DB of 2006 -3- 15.8.2004. He has alleged in the said complaint that his father who went for a morning walk at about 4.00 A.M. on 23.5.2004, did not turn up. But, on the said day between 12 midnight to 2.00 A.M., three calls had been made to his mobile phone from Airtel Mobile phone bearing SIM No.9871445094. The said mobile was attended to by Abdul Rehman. He informed his son Imran and his mother that some unknown person was making phone call again and again enquiring as to whether Abdul Rehman was speaking, but Abdul Rehman switched off the mobile line. Thereafter he went out for morning walk, but did not return. After 2-3 days of his missing, a phone call was received by his son Imran that he should make a search at village Chanderu, District Bulandshahar, U.P. Then Imran recollected the personal enmity his father Abdul Rehman had with Bhura and Kallu, brothers of Pardhan of village Chanderu. There was also litigation between them in the Allahabad High Court. Imran Khan having expressed his suspicion that those persons might have kidnapped Abdul Rehman and committed murder prayed for investigation of the matter at a higher level. 4. PW20 ASI Kirori Mal attached to Police Station NIT, Faridabad having registered the said complaint (Ex.P36) received through post registered formal FIR (Ex.P37). PW21 Inspector Prem Singh, SHO of Police Station NIT Faridabad took up this case for investigation on 22.8.2004. He found that three calls had been received from mobile phone No.9871445094 by deceased Abdul Rehman to his mobile phone No.981802965. One more call also was received by deceased to his mobile Crl.A. No.823-DB of 2006 -4- phone from mobile phone No.55537278. He proceeded to the office of Airtel company and collected the call details of above telephone numbers. It was found that the person who was making the calls from 9871445094 was Vikram. The other mobile phone No.9891867476 was used by one Shiv Raj. He seized both the mobiles. He also collected the call details of mobile No.9871445094 which stood in the name of Sehzad. Sehzad disclosed on interrogation that a girl wearing burka used his SIM Card to make a call. 5. On 11.10.2004, PW21 raided the house of accused Vijay Kapoor and arrested accused Vijay Kapoor and Jalalu Rehman. Accused Jalalu Rehman made a disclosure statement (Ex.P28) and offered to demarcate the canal where the clothes of the deceased had been thrown after burying the dead body in his house. Accused Vijay Kapoor also made disclosure statement Ex.P29. As per the disclosure statement made by this accused, the dead body was exhumed in the presence of PW11 Dr.S.C. Jain and PW8 Naib Tehsildar Naresh Kumar and PW18 Photographer Sonu. The video cassette was marked as Ex.P35. 6. PW11 Dr.S.C. Jain conducted the post mortem examination on 11.10.2004, on the human skeleton in a highly decomposed condition. Age and sex of the skeleton and cause and manner of death of the dead person could not be ascertained. There was no clothes found on the skeleton. PW4 Dr. S.K.Dhattarwal, Assistant Professor, Department of Forensic Medicine, PGIMS, Rohtak expressed his expert opinion after the examination of the skeleton as follows:- Crl.A. No.823-DB of 2006 -5- “The body was covered with wet soil and sand. White colour half sleeve banyan, dirty white underwear and one mettallic chain were found on the dead body. The skull, mandible, survical vertebra were joined by the pieces of tendon and ligaments. There was a depressed fracture of right parietal bone.” He opined that the head injury which could have been caused by heavy blunt weapon would have caused the death. The death would have taken place about 6 months prior to the post mortem examination. 7. PW1 Ashok Kumar Gupta was a dealer of Airtel Company Western Telecom, Shahadra, Delhi. PW2, Naveen Sharma was his salesman. He speaks about the distribution of 25 SIM cards during the relevant point of time through his salesman. PW2 Naveen Sharma who was the salesman of Western Telecom could not recollect which SIM card was given to which person. In fact, he turned hostile to the case of the prosecution. PW3 Constable Sunil Kumar was a witness to the disclosure statement of accused Tabassam and the recovery of Acid bottle by PW14 ASI Rohtash Singh. PW6 Shehzada would depose that on 22.5.2004, a lady came alongwith a small child and obtained Airtel SIM card bearing No.9871445094. As her mobile was not in order, she borrowed his mobile handset for making an urgent call to her husband who was to divorce her and thereafter she returned his handset. PW7 Ram Kishan was the witness to the arrest of accused Rahis Rehman and recovery of a key and cycle part on the basis of disclosure statement given by her. PW10 Swaran Singh who was cited as a Crl.A. No.823-DB of 2006 -6- witness to speak about the recovery memo from accused Jalalu Rehman turned hostile. PW22 Imran, son of the deceased spoke about the identification of the clothes recovered in this case as that of his deceased father Abdul Rehman. 8 Two parcels containing clothes and chain of the deceased were received by PW21 after the post mortem examination was over. PW14 ASI Rohtash Singh attached to Police Station NIT Faridabad took up the investigation on 13.10.2004. As per disclosure statement of accused Vijay Kapoor he inspected the spot where the fire was shot and recovered a purse containing a key and a receipt. He prepared rough site plan (Ex.P20) and recorded the statements of witnesses. On 19.10.2004, he arrested accused Tabassam and recovered Acid bottle vide memo Ex.P2. Having completed the investigation, final report was laid as against all the four accused. 9. All the four accused responding to the incriminating circumstances spoken to by the witnesses came out with a total denial of the prosecution version. 10. The trial Court having completely relied upon the disclosure statements of the accused, the recovery of the material objects and demarcation of the burial place made by the accused, the telephone conversation made by accused just before the missing of Abdul Rehman and the recovery of the skeleton at the instance of the accused, returned a finding that the accused having hatched a criminal conspiracy called upon deceased Abdul Rehman over phone during the intervening night of 22/23.4.2004 to the house of Rahis Rehman and murdered him with the help Crl.A. No.823-DB of 2006 -7- of axle of rickshaw and also administered acid through his mouth. The dead body was concealed by digging the earth in a room of accused Rahis Rehman by all the accused. Having held that prosecution could establish the recovery of the weapon of offence, clothes last worn by the deceased, his purse containing key and receipt of loan and his skeleton from the house of Rahis Rehman, in the background of the conspiracy hatched by them, the trial Court returned a verdict of conviction as against all the four accused as stated supra. 11. Learned counsel appearing for the appellants would vehemently submit that in a case of blind murder none of the links of the chain of circumstances was established by the prosecution. There was no evidence to prove that the skeleton was that of deceased Abdul Rehman. No motive was established by the prosecution as against the accused. Unfortunately, the investigation was not directed in the light of suspicion raised in the complaint lodged by PW22 Imran. All the three persons who were connected with the mobile phones recovered were conveniently let-off by the investigating official. The prosecution has come out with a totally self- contradictory versions before the Court. Quite unfortunately, the trial Court believed the entire untrustworthy materials produced by the prosecution and recorded conviction as against all the four accused. 12. Per contra, Mr. S.S.Randhawa, learned Addl.A.G., Haryana, appearing for the State would submit that the skeleton was identified by PW22 Imran, son of the deceased with the help of a dress lastly worn by the deceased. No satisfactory explanation was forthcoming from accused Jalalu Crl.A. No.823-DB of 2006 -8- Rehman and Rahis Rehman as to the burial of the dead body in their very house. The only inference that could be drawn in such circumstances is that they are the culprits who committed the crime of murder. Drawing the attention of this Court to the telephone conversations that took place just before the missing of Abdul Rehman, he would submit that the role of accused Tabassam has also been established. Therefore, it is his submission that the prosecution could establish beyond reasonable doubt the charges levelled against them. 13. The fact remains that the prosecution has come out with a totally blind murder. Admittedly, a skeleton was projected in this case after a lapse of about 6 long months and it was urged that the said skeleton was that of deceased Abdul Rehman. 14. In a case based on circumstantial evidence, the prosecution is bound to establish the material circumstances from which the conclusion of guilt is to be drawn. The facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved. Lastly, there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 15. In the background of above principles, let us now take up the chain of circumstances projected by the prosecution. At the outset, let us make an observation on the basis of the facts projected in this case that no Crl.A. No.823-DB of 2006 -9- motive was attributed to the accused-appellants herein. Further no motive also was established during the course of trial of the accused. It is a case where one of the family members of the deceased, namely, PW22 Imran has virtually set the law in motion. It is to be noted in this context that the man missing report submitted by Ikram Khan, the other son of the deceased Abdul Rehman and registered as DDR, did not lead to registration of FIR and investigation of the matter. The investigation commenced only on the basis of the complaint Ex.P36 lodged by PW22 Imran Khan. PW22 has categorically stated in the First Information Report that he received a phone call about 2-3 days after the missing of his father Abdul Rehman informing him to make a search at village Chanderu, District Bulandshahar, Uttar Pradesh State. PW22 has expressed his suspicion over the role of Bhura and Kallu, brothers of Pardhan of village Chanderu with whom deceased Abdul Rehman had personal enmity. PW22 also referred to some litigation between the parties. But quite unfortunately, there is nothing on record to show that the investigating official made some investigation in the direction of the suspicion raised by the very family member of the deceased. No explanation is forthcoming from the investigating official as to why no investigation was done in that direction inspite of strong motive for the murder alleged in the FIR (Ex.P36). No effort was taken by the investigating official to connect the telephone call received by the first informant Ikram with the stranger who informed such information that Ikram could make a search at village Chanderu in Uttar Pradesh. To say the least, the investigation had been proceeded on a wrong premises. The Crl.A. No.823-DB of 2006 -10- whole process of investigation done by the investigating official was thoroughly analyzed by us. In fact it lacked the spirit of enquiry to reach the bottom of the truth to unravel the truth surrounding the murder. 16. Firstly, it is found that Ikram Khan who lodged the complaint of man missing immediately after the missing of his father had not spoken anything about the telephone calls received by his father during midnight. He had come out with a version that the mobile phone of his father was found continuously switched off. For the first time in the FIR (Ex.P36) lodged by PW22, a persistent call given to the mobile phone of his father had been referred to by PW22. If such a suspicious call had been received by Abdul Rehman just before his departure from his house, there was no reason for his son Ikram Khan to suppress it in the complaint he submitted first in point of time. Secondly, the prosecution has come out with a case that between 12.00 midnight and 2.00 a.m. on 23.5.2004, three calls were received by the deceased Abdul Rehman on his mobile phone bearing No.9871445094. According to the investigation done by PW21 it was only Vikram and Shiv Raj who had made calls to the deceased at the relevant point of time. It is baffling to note that no satisfactory investigation was done as against those Vikram and Shiv Raj from whose mobile phone three calls had been made to the mobile phone of the deceased. It is also not explained by the investigating agency with regard to the nexus between Vikram and Shiv Raj to the accused herein. 17. Yet another unbelievable story has been reeled out by the investigating official with regard to the phone conversation alleged to have Crl.A. No.823-DB of 2006 -11- been made by Tabassam to the deceased through the mobile set of one Shehzada. We find that Shehzada who was examined as PW6 has come out with a totally untrustworthy evidence. To put to acid test the version of PW6 Shehzada, reference will have to be made to the testimony of PW1 and PW2. PW1 Ashok Kumar Gupta, dealer of Airtel Company has categorically deposed to the fact that 25 SIM cards received during the relevant point of time were distributed through his salesman Satish Kumar. But, quite unfortunately, said Satish Kumar was not examined by the prosecution. Whereas one Naveen Sharma, of course, working as Salesman in Western Telecom, was examined as PW2. He has turned hostile to the version of the prosecution. In fact, he could not recollect which number was given to which person. But PW6 Shehzada has deposed before the Court as though he in fact sold Airtel SIM Cards bearing No.9871445094 to Tabassam. Under what authority he had sold the Airtel SIM card to Tabassam was not explained by the prosecution. 18. PW6 comes out with the information allegedly shared by Tabassam that she had to make an urgent call to her husband who was to divorce her. Under these circumstances, PW6 had to part with his mobile set, as the mobile set possessed by Tabassam was not properly functioning. PW6 has come out with a totally unbelievable story. At any rate it could be found that the mobile set possessed by PW6 was used with Airtel SIM Card bearing No.9871445094 to the mobile set possessed by the deceased. When the story reeled out by PW6 was found to be totally a false story, the investigation should have been directed against PW6 Shehzada also to find Crl.A. No.823-DB of 2006 -12- out his role in the crime of murder. The investigating officer has not directed his investigation towards PW6 Shehzada inspite of some clue he got with respect to the use of the mobile set of PW6. The false story of PW6 was completely stomached by the investigating official and as a result of which there had been a misdirection in the investigation towards accused Tabassam. 19. It is the consistent case of the prosecution that during the midnight between 12.00 and 2.00 a.m., more than three calls had been received by the deceased to his mobile phone. The prosecution through the evidence of PW6 has projected a self-contradictory story that during day time some call was given by accused Tabassam to deceased Abdul Rehman in the guise of conveying an urgent message to her husband who was to be divorced in the days to come. Such a conflicting version of the prosecution cuts the very root of the case. 20. Let us now take up the identification of the dead body of Abdul Rehman. It is to be noted that PW22 Imran had not identified the dead body of his father. He would say that he identified the dress of his father. The medical evidence would go to establish that only a skeleton which could be manually joined together alone was produced for post mortem examination. PW11 Dr.S.C.Jain has categorically stated that the age and sex of the skeleton and the cause and manner of death could not be ascertained as the skeleton alone was the subject matter of post mortem examination. He was very categorical that there was no clothes found on the skeleton. But, strangely PW7 Dr.S.K.Dhattarwal who subjected the skeleton to Crl.A. No.823-DB of 2006 -13- examination for experts opinion comes out with a version that a white colour half sleeve banyan, a dirty white underwear and a while metallic chain were found on the dead body. It is relevant to refer in this context the evidence of PW8 Naresh Kumar, Naib Tehsildar who was present throughout the process of exhumation. He has stated that no cloth was visible on the skeleton. Only the skeleton was taken into possession and nothing else was taken into possession in his presence. 21. It is surprising that a cotton banyan and underwear were found on the skeleton during the course of examination of PW7. Further the evidence of PW7 and PW11 is found to be totally self-contradictory. At any rate, the identification of the skeleton was not done by PW22 based on the clothes or the metallic chain allegedly found on the dead body. 22. As per the evidence of PW21, the Investigating Officer in this case, accused Jalalu Rehman made a disclosure statement to the effect that the clothes of the deceased had been thrown after burying the dead body in his house. PW22 Imran Khan would also depose before the Court that accused Jalalu Rehman made a disclosure statement (Ex.P28) that dead body of his father had been buried in his house and the wearing apparels of the deceased had been thrown in the canal. Very strangely, they come out with a disclosure statement of Jalalu Rehman as though he disclosed that he kept the clothes of the deceased under the stones in the area of Badhkal Lake. In our considered view, the investigating official had created an artificial story as through the second disclosure statement of Jalalu Rehman brought to light the clothes of the deceased kept concealed in the area of Crl.A. No.823-DB of 2006 -14- Badhkal lake. There was no reason for accused Jalalu Rehman, if at all he had chosen to bury the dead body in his house, to preserve the clothes of the deceased in a lake as though it was a very precious material. The investigating agency has come out with cock and bull stories which do not stand to reason. 23. As to the mode of death of Abdul Rehman, the prosecution has advanced three sorts of modes used by the accused to murder Abdul Rehman. The first one is that an attack was launched on the right parietal region of his head with an axle of a rickshaw. Secondly, it was stated that the deceased was administered acid. Thirdly, it has been projected that Abdul Rehman was shot to death. There was no reason for causing the death of a person by adopting three modes simultaneously. The story of PW14 ASI Rohtash that accused Vijay Kapoor suffered a disclosure statement to the effect that he would locate the spot where he gave a fire shot appears to be a totally new story. In weaving a story on the basis of a skeleton unearthed, the prosecution has faulted at every stage to convince the Court as to the offence committed by the accused. 24. The prosecution has not embarked upon any Super Imposition Test or the DNA Test to clinchingly establish the identity of the skeleton. When the identity of the deceased could be established by scientific evidence, the investigating officials had virtually groped in darkness in the matter of identifying the dead body. The conventional method adopted by by them also does not convince the Court as regards the identification of dead body of Abdul Rehman. Crl.A. No.823-DB of 2006 -15- 25. To say the least, the investigating officials have not shown seriousness required for unraveling the truth surrounding a blind murder. PW21, the Investigating Officer in this case and PW14 who partly investigated in this case, have spoken in different voices. Totally artificial and untrustworthy materials have been produced before the trial Court. The disclosure statements alleged to have been given by the accused, the recovery of the material objects and the skeleton, the telephone conversations between the accused and the deceased projected by the prosecution do not inspire confidence. In fact, the prosecution has miserably failed to establish that the skeleton allegedly unearthed did belong to Abdul Rehman. The whole story has been completely concocted with an aid of a skeleton, having slumbered over a period of 6 long months. Unfortunately, the trial Court has relied upon the entire story concocted by the prosecution. We find that the prosecution has miserably failed to bring home the guilt to the accused. 26. We very much