IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 701-DB of 2004 DATE OF DECISION : 14.02.2011 Sanjay Kmar .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Ms. Monika Jalota, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Sanjay Kumar was tried by the court of Additional Sessions Judge, Panipat, for committing the murder of Bishni wife of Chanda. The trial court, vide its judgment dated 14.6.2004 and order dated 15.6.2004, convicted the appellant under Sections 450 and 302 IPC, and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 1,000/-, in default of payment of fine to undergo rigorous imprisonment for a period of six months, under Section 450 IPC; to undergo imprisonment for life and to pay a fine of ` 5,000/-, in default of payment of fine to undergo rigorous imprisonment for a period of one year, under Section 302 IPC. Both the sentences have been ordered to run Crl. A. No. 701-DB of 2004 -2- concurrently. Against the said judgment and order, the instant appeal has been filed by the appellant through jail. 2. The appellant did not move any application for suspension of sentence. But after the completion of more than ten years of sentence by the appellant, a letter was issued by the jail authorities to the Legal Services Authority to pursue the appeal, filed by him. Thereupon, the matter was taken up and an application for suspension of sentence was filed on behalf of the appellant. However, by that time, the matter had already been listed for regular hearing. Therefore, on January 28, 2011, the application for suspension of sentence was dismissed and the appeal was ordered to be taken up for hearing. 3. Undisputedly, till date, the appellant has undergone 10 years 3 months and 26 days of imprisonment. 4. As per the prosecution version, the appellant and Chanda (husband of deceased Bishni) were working in the brick kiln of Rajinder Kumar (PW.4). On 13.9.2000 at about 12.00 noon, complainant Amarjit (PW.7), brother of deceased Bishni, had gone to see his sister in the huts of the aforesaid brick kiln. He found that many persons had gathered there and his sister Bishni, having some marks on her neck, was lying dead in the round circle of the brick kiln. At that time, his sister's husband Chanda was away to Rajasthan for making arrangement of labour for the brick-kiln, as he was working as a contractor on the said brick-kiln. On enquiry, Amarjit came to know that the appellant was residing in the hut near the hut of deceased Bishni. He got full suspicion that in the night of 12/13.9.2000, Crl. A. No. 701-DB of 2004 -3- finding Bishni alone, the appellant had misbehaved her and when she protested, the appellant killed her by strangulating her neck by means of her chunni and then, after taking her body out, he threw the same in the round circle of the brick kiln towards north side. The appellant was not found present either in the brick-kiln or in his hut. 5. After leaving one Bablu, a worker of the brick-kiln, near the dead body, Amarjit went to the Police Station and reported the matter to the police, on the basis of which at about 2.30 PM, the formal FIR (Ex.PG) was registered by SI Raghbir Singh (PW.8). The special report was sent, which was received by the Ilaqa Magistrate at 4.35 PM. 6. Thereafter, on the same day, i.e. on 13.9.2000, the police party, headed by SI Raghbir Singh, went to the place of occurrence, prepared a rough site plan (Ex.PH) with correct marginal notes, prepared the inquest report (Ex.PB/1) and sent the dead body to Civil Hospital, Panipat, for post- mortem examination. 7. On 14.9.2000 at 11.00 AM, Dr. Y.P. Singhmar (PW.2) along with Dr. K.L. Chopra, conducted post-mortem on the dead body of Bishni. During post mortem examination, they found ligature mark on the neck and irregular contusion 6.0 cm x 3.0 cm on the right side of neck. Rigor mortis was present on the lower limbs. Stomach contained semi digested food. Both the doctors opined that the cause of death in this case was asphyxia as a result of suffocation. 8. As per the prosecution version, on 17.9.2000, i.e. four days after the occurrence, the accused came on the brick-kiln of Rajinder Kumar Crl. A. No. 701-DB of 2004 -4- (PW.4) and made extra judicial confession before him regarding the commission of the offence. It is the further case of the prosecution that Rajinder Kumar was taking the accused to the Police Station on his scooter. In the way, in the area of village Naultha at turn of Brahman Majra, the police party, headed by SI Raghbir Singh (PW.8) met them. Rajinder Kumar told the police that the accused had made an extra judicial confession before him that he had murdered Bishni by wrapping a chunni in her neck. Statement of Rajinder Kumar was recorded. The accused was arrested. 9. On the same day, in pursuance of the disclosure statement (Ex.PE) made by the accused, he got recovered one chunni (Ex.P1) from the open space of brick-kiln, which was taken into possession vide recovery memo Ex.PE/1, in the presence of ASI Chander Singh (PW.5). Rough site plan (Ex.PJ) of the place of recovery of the chunni was prepared. 10. On 9.10.2000, Dharam Pal SI (PW.3) moved an application (Ex.PC) before Dr. Y.P. Singhmar (PW.2) to seek his opinion as to whether injury on the neck of deceased could be caused by chunni (Ex.P1) and whether death could be caused by wrapping chunni around the neck. Vide his opinion (Ex.PC/1), the doctor opined that injury around the neck could be caused by chunni and that death could be possible by wrapping chunni around the neck. 11. After completion of investigation, the challan was filed and charges under Sections 302 and 450 IPC were framed against the accused, to which he did not plead guilty and claimed trial. Crl. A. No. 701-DB of 2004 -5- 12. In support of its case, the prosecution examined eight witnesses, out of whom PW.2 Dr. Y.P. Singhmar, who along with Dr. K.L. Chopra, conducted post mortem examination on the body of the deceased; PW.3 Dharam Pal SI, who moved application (Ex.PC), upon which Dr. Y.P. Singhmar (PW.2) gave opinion (Ex.PC/1); PW.4 Rajinder Kumar, owner of the brick-kiln, where the deceased and the appellant were working, before whom the accused made extra judicial confession; PW.5 ASI Chander Singh, a witness to the recovery of chunni at the instance of the accused in pursuance of his disclosure statement; PW.7 Amarjit (complainant), on the basis of whose statement the FIR was registered in this case; and PW.8 Raghbir Singh, Inspector, the Investigating Officer in the case, are the material witnesses. 13. In his statement under Section 313 Cr.P.C., the accused denied all the incriminating evidence, appearing against him, pleaded his innocence and false implication in the case. However, he did not lead any evidence in his defence. 14. The trial court, after hearing learned counsel for the parties and taking into consideration the evidence of extra judicial confession, recovery of chunni, and in the backdrop of the medical evidence, convicted and sentenced the appellant under Sections 302 and 450 IPC, for committing the murder of Bishni. 15. Learned counsel for the appellant argued that case of the prosecution is based upon circumstantial evidence and in order to establish the case against the accused, the prosecution is relying upon three types of Crl. A. No. 701-DB of 2004 -6- circumstantial evidence, i.e. (i) the evidence of extra judicial confession made by the accused before PW.4 Rajinder Kumar; (ii) recovery of chunni (Ex.P1) on the basis of the disclosure statement (Ex.PE) made by the accused; and (iii) the accused having absconded from the place of his residence since the day of occurrence i.e. intervening night of 12/13.9.2000 till he made extra judicial confession before PW.4 Rajinder Kumar on 17.9.2000. 16. Learned counsel for the appellant argued that the recovery of chunni (Ex.P1) in this case is doubtful, because as per the recovery memo (Ex.PE/1), the chunni was found lying in an open place under the heap of bricks, on the brick-kiln, where the occurrence had taken place. Moreover, at the time of recovery, no independent witness was associated by the police. Thus, according to the learned counsel, this recovery from an open place creates doubt. She further argued that the extra judicial confession is also doubtful, because in order to confess his guilt before the owner of the brick-kiln, the accused would not have come to the brick kiln, where the occurrence had taken place. Learned counsel further argued that as per the prosecution version, after committing the murder of Bishni, the accused had dragged her dead body and threw the same in the circle of brick-kiln, but the prosecution did not try to lead any evidence in that regard. According to the learned counsel, there is no evidence, either in the shape of medical evidence or otherwise, regarding the dragging of the dead body. On this count also, learned counsel argued that the prosecution has failed to prove the guilt of the accused beyond shadow of a reasonable doubt. Crl. A. No. 701-DB of 2004 -7- 17. On the other hand, learned counsel for the respondent-State, argued that an accused can be convicted only on the basis of extra judicial confession, if the court finds the same to be reliable and trust-worthy. He further argued that in this case, even if the recovery of chunni is found to be suspicious, even then on the basis of the extra judicial confession and the fact that the accused remained absconding for three/four days, the conviction of the appellant for the alleged offence can be upheld. In nutshell, learned counsel for the respondent-State argued that in the facts and circumstances of the case, the trial court is fully justified in convicting and sentencing the appellant. 18. After hearing learned counsel for the parties and going through the record as well as the evidence led by the prosecution, we are of the opinion that in the instant case, the prosecution has failed to establish its case against the accused beyond the shadow of a reasonable doubt. 19. Firstly, as per the evidence of extra judicial confession, the appellant committed the murder of Bishni by strangulating her in the night of 12/13.9.2000 and thereafter, he dragged the dead body from some distance and threw it in the circle of the brick-kiln. However, as per the medical evidence, except the ligature mark on the right side of neck, no other injury was noticed on the person of the deceased. As per the extra judicial confession (Ex.PD), made by the accused, he had adopted two modes to cause the death of Bishni, i.e., firstly he strangulated her neck in the night, while she was lying on the cot; and thereafter, he took her chunni, wrapped the same around her neck and crushed it till she died. This version, Crl. A. No. 701-DB of 2004 -8- given by the accused in the extra judicial confession, in our opinion, is not being corroborated by the medical evidence. PW.2 Dr. Y.P. Singhmar, while appearing in the witness box, has categorically stated that in his opinion, the deceased died due to asphyxia as a result of suffocation. He has further stated that the ligature mark was only on the right side of the neck of the deceased, whereas PW.4 Rajinder Kumar, the owner of the brick-kiln, before whom the extra judicial confession was allegedly made, while appearing in the witness box, did not state that the accused had used his hand to strangulate Bishni. According to him, the accused had murdered Bishni only by putting a chunni around her neck. Moreover, it is also unlikely that the accused will come present at the place of occurrence in order to confess his guilt. Even if he wanted to confess his guilt, he could have approached his employer at his residence at Panipat. This fact further creates doubt regarding the genuineness of the extra judicial confession, allegedly made by the accused. 20. Secondly, the recovery of chunni in this case is doubtful. As per the statements of PW.5 ASI Chander Singh and PW.8 Raghbir Singh, Inspector, after four days of the occurrence, recovery of chunni was effected from the open place in the brick-kiln. It has been categorically stated by him that the chunni was lying on the ground, but no mud was found on it. It does not stand to reason that the chunni will remain lying at the place of occurrence in an open place for four days, without being noticed by any one, particularly when so many workers had been working on the brick-kiln. Further, at the time of the alleged recovery, no independent witness was Crl. A. No. 701-DB of 2004 -9- associated by the prosecution. Only two official witnesses were present at the time of the alleged recovery, out of whom only one, namely ASI Chand Singh (PW.5), has been examined. In these circumstances, in our opinion, the alleged recovery of the chunni is also doubtful. 21. Thirdly, the dead body was admittedly found in the circle of the brick-kiln, which was at a distance of about 200-300 yards from the hut, where the deceased was residing. As per the prosecution version, Bishni was murdered in her hut. Thereafter, the accused dragged her dead body and threw it in the circle of the brick-kiln. During the post mortem examination, except the ligature mark on the right side of the neck, no other injury on the body of the deceased was noticed by the doctors. This fact further creates doubt in the prosecution case. 22. Fourthly, Rajinder Kumar, owner of the brick-kiln and employer of the accused, while appearing in the witness box as PW.4, did not produce the attendance register to show that the accused remained absent from duty from 13.9.2000 to 16.9.2000. He even did not state that the accused remained absconding for these four days. The argument of learned counsel for the respondent-State to the effect that the accused remained absconding for four days is based only on the inference, because in the FIR, it was stated by the complainant that after the occurrence, the accused absconded. Thus, in our opinion, this circumstance also cannot be taken against the accused. 23. In view of the aforesaid discussion, the evidence of extra judicial confession and recovery of chunni do not inspire confidence. There Crl. A. No. 701-DB of 2004 -10- is no other evidence, on the basis of which conviction of the appellant can be upheld. It is true that if the Court finds an extra judicial confession to be reliable, conviction of an accused can be recorded, but as a rule of prudence, such kind of extra judicial confession must be corroborated by the other material on record. In the instant case, except the extra judicial confession, which is also doubtful, there is no other evidence, which may corroborate the version given in the extra judicial confession. Therefore, in our opinion, the circumstantial evidence, led by the prosecution, is not sufficient to convict the appellant. 24. Thus, in view of above, the appeal is allowed and the impugned judgment of conviction and the order of sentence is set aside. Appellant Sanjay Kumar, who is in custody, is acquitted of the charges and he be set at liberty forthwith, if not required in any other case. ( SATISH KUMAR MITTAL ) JUDGE February 14, 2011 ( M. JEYAPAUL ) Reema/ndj JUDGE