Criminal Appeal No. 405-DB of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No. 405-DB of 2006 Date of decision : 20.5.2008 Sukhbir Dass @ Sukhan .....Appellant Versus State of Haryana ...Respondent 2. Criminal Appeal No. 429-DB of 2006 Mukesh .....Appellant Versus State of Haryana ...Respondent 3. Criminal Appeal No. 518-DB of 2006 Manoj .....Appellant Versus State of Haryana ...Respondent 4. Criminal Appeal No. 1049-DB of 2007 Zile Singh .....Appellant Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. H.S. Gill, Senior Advocate with Mr. R.K. Dhiman, Advocate for the appellants in Criminal Appeals No. 429-DB and 1049-DB of 2006. Mr. Ashok Kaushik, Advocate for the appellant in Criminal Appeal No. 405-DB of 2006. Mr. Shiv Kumar, Advocate for the appellant in Criminal Appeal No. 518-DB of 2006. Mrs. Navin Malik, Additional Advocate General, Haryana. Criminal Appeal No. 405-DB of 2006 -2- S. D. ANAND, J. The appellants before this Court are Sukhbir alias Sukhan, Mukesh, Manoj and Zile Singh who have preferred individual appeals against their conviction by the learned Trial Judge. While acquitting Narender, the learned Trial Judge convicted all the four appellants for an offence under Section 302 read with Section 149 IPC. Besides that offence, appellant Zile Singh was also convicted for the commission of an offence under Section 25 of the Arms Act. The charge was upheld in the context that he kept an unlicensed spring actuated knife in his possession. It is that knife with which the impugned crime had been committed. Learned Trial Judge noticed that Vinod and Daya Chand accused are facing trial before the Juvenile Court. In the course of presentation before the Trial Court, the prosecution alleged as under:- Tirlok Chand PW-3, a shop keeper running business in a shop in market no. 1, NIT, Faridabad, had four children including Himanshu who (Himanshu) accompanied Lal Singh and Namit @ Nikki from his house. In the course of an altercation, Namit @Nikki received injuries on his ear and Himanshu received a knife blow in his stomach. As a result of injuries, Himanshu died. The offence was notified to the police by Tirlok chand on that very day. The prosecution examined as many as 19 witnesses to prove the charge. PW-1 Namit Kumar and PW-2 Lal Singh are eye witnesses of the impugned occurrence who did not support the prosecution plea. PW-3 Tirlok Chand is father of deceased Himanshu. PW-4 HC Sube Singh who was posted at Police Station City, Faridabad on 14.1.2005, had attested memo Ex. PE vide which blood Criminal Appeal No. 405-DB of 2006 -3- stained earth lifted from the spot had been taken into possession by the police. PW-5 Constable Anis Ahmed had carried ruqqa Ex. PC to the Police Station. He had got post-mortem examination conducted on the dead body of Himanshu. The Medical Officer, who conducted the post- mortem examination, had handed over to him a parcel containing the clothes of the deceased and the post mortem report, which the witness handed over to the SHO. PW-6 ASI Govind Ram had taken the post mortem report and the sealed parcel containing clothes of the deceased into possession, vide memo Ex. PF. PW-7 Constable Amar Singh had delivered the special report to the learned Illaqa Magistrate and the higher officers of the police on 14.1.2005. PW-8 Dr. Vinay Gupta, M.O., B.K. Hospital, Faridabad, had conducted the post mortem examination on the dead body of Himansu and found the following injuries:- “1. Incised wound which was dressed and present in lower abdomen 6 cms lateral to public symphysis on right side. Wound was 3 x 2 cm in size. On probing, wound was going slightly upward and posteriorly into the abdominal cavity. There were corresponding cuts on pant and underwear. Common illiac vessels on right side were ruptured and clotted blood was presented in pelvic cavity. 2. A wound 1.2 x ½ cm (incised) eleptical in shape present in umblical region 5 cm below the umblicus, 2 cm left to mid line. There were corresponding curts in clothes which were encircled and signed by me. On probing Criminal Appeal No. 405-DB of 2006 -4- wound going posteriorly downward in abdominal cavity.” PW-9 Dr. Navdeep Kumar Singhal informed the police on 14.1.2005 (vide ruqqa Ex. PJ/1 in his own hand) that Himanshu son of Tirlok Chand resident of Adarsh Nagar, Ballabgarh had been brought dead to the hospital by his friend Lal Singh. PW-10 Constable Sarwan Kumar had prepared scaled site plan Ex. PK on the demarcation of lal Singh. PW-11 Inspector Balbir Singh had investigated this case. It was he who had received complaint Ex. PC from Tirlok Chand and made his endorsement Ex. PC/1 thereupon and forwarded it to the Police Station, for registration of the case through Constable Anis Ahmed. He prepared inquest report Ex. PH/1. He had also sent the dead body for post-mortem examination. He got the rough site plan Ex. PM prepared. He also lifted blood stained earth from the spot and put the same into a parcel, which he sealed with seal BS. Further, it was he who filed the report under Section 173 Cr.P.C. in this case on 18.2.2005. PW-12 SI Anoop Singh had partly investigated this case inasmuch as he had interrogated all the appellants who got the recoveries effected in pursuance thereof. PW-13 HC Braham Parkash tendered his affidavit Ex. PX into evidence on 14.1.2005. He testified on oath that aforesaid affidavit of his may be read as part of the statement. However, he was categorical that “during the period the case property remained in my custody neither I nor anybody else was allowed to tamper with the same.” PW-14 ASI Bhim Singh (then posted as ASI at CIA, Ballabgarh) had attested the various disclosure statements made by four convicted appellants/accused. It was in his presence that the makers of disclosure statements got the recoveries (in pursuance of their disclosure statements) effected. Criminal Appeal No. 405-DB of 2006 -5- PW-15Constable Dalsher Singh is a witness of link evidence inasmuch as MHC, Police Station, Ballabgarh had handed over a sealed parcel to him for delivering the same at the FSL. He delivered the same parcel on that very day and handed over the receipt (issued by the office) to the M.H.C. He categorically indicated that “during the period the case property remained in my custody neither I nor anybody else was allowed to tamper with the same.” PW-16 Constable Umar Chand had delivered the case property at the FSL against receipt. PW-17 ASI Jeet Singh was present at the time the appellants were arrested and interrogated by ASI Anoop Singh. PW-18 ASI Ravish Chand had also partly investigated this case. PW-19 Dr. Joginder Singh had examined Namit son of Ram Kumar on 16.1.2005 and found the following simple injury on his person:- “A bruise 1.5 X 0.5 cm over left mastoid process. No mark of tenderness. Bluish colouration.”. Ex. PY is the FSL report. The FSL opined, vide its report Ex. PY, as under:- Results of serological analysis of blood Sr. No. Name of Exhibit Origin 1 Book Human 2 Purse etc. Human 3 Blood Stained Earth Human 4a T-Shirt Human 4b Banian Human 4c Underwear Human 4d. Shirt Human 4e. Pants Human 4f Jersey Human Criminal Appeal No. 405-DB of 2006 -6- The following is the report of FSL :- “Laboratory examinations were carried out to detect the presence of blood on the exhibits through chemical tests. Blood thus detected was subjected to serological tests to determine its species of Origin. Based upon these examinations the results obtained are given below:- 1. Exhibit-1 (Book); exhibit-2 (Purse etc.); exhibit-4a (T- Shirt); exhibit-4b(Banian); exhibit-4c (Underwear); exhibit-4d (Shirt); exhibit-4e (Pants) and exhibit-4f (Jersey) were stained with blood stains. 2. Blood was detected in exhibit-3 (Blood Stained Earth). 3. Blood could not be detected on exhibit-5 (Knife).” The appellants raised a pure and simple plea of false implication in the case. No evidence was adduced by the appellants in their defence. Learned Trial Judge noticed that PW-1 Namit Kumar and PW- 2 Lal singh ( the eye witnesses) of the impugned occurrence had turned hostile and had not supported the prosecution version. At the same time, learned Trial Judge based the impugned finding of conviction on the fact that appellants led to the recovery of various articles in pursuance of their respective disclosure statements and also the fact that they had pointed out the place where they had committed the impugned murder. The articles got recovered by the appellants included the motor-cycle and the weapon of offence ( which was taken into possession vide recovery memo Ex. P/1). After having examined the evidence on record in the context of the criticism directed at the impugned finding on behalf of the appellants, we have not been able to pursuade ourselves to affirm the impugned finding. The reasons therefor are as under:- a) The only two eye witnesses of the impugned occurrence i.e. PW-1 Namit Kumar and PW-2 Lal Singh did not support Criminal Appeal No. 405-DB of 2006 -7- the prosecution plea, were declared hostile and were cross- examined on behalf of the prosecution. They denied having made attributed statements to the police. There is nothing in their cross examination on the basis whereof it could be recorded that they had turned hostile to the prosecution plea or that they were not telling the truth. Thus, the ocular presentation in the statements of PW-1 Namit Kumar and PW-2 Lal Singh is not available to the prosecution in its bid to request for a finding of conviction. b) Insofar as PW-3 Tirlok Chand is concerned, he does not even claim to have witnessed the impugned occurrence. His testimony cannot, thus, be of any use in identifying the appellants as the perpetrators of the impugned crime. We would, now, proceed to deal with the aspect of the recoveries purported to have been got effected by the appellants in pursuance of their respective disclosure statements. Ex. PD is the memo vide which a spring actuated knife got recovered by appellant Zile Singh was taken into possession. As apparent from Ex. PD itself, that recovery had been effected from under the bushes located by the side of gate. As noticed in Ex. PD itself and also the FSL report, no blood was found on the knife. There is, thus, no evidence to connect that spring actuated knife with the crime under reference. Ex. PQ is a disclosure statement made by appellant Manoj. It purports to be a demarcation memo. Likewise, Ex. PR purports to be a disclosure statement of Sukhan @ Sukhbir appellant which, too, purports to be a demarcation memo and the same applies to Ex. PS which purports to have been made likewise by appellant Zile Singh. Ex. PU purports to be a disclosure statement made by appellant Mukesh Kumar. This document also purports to be a demarcation memo. As per the contents of memo Ex. Criminal Appeal No. 405-DB of 2006 -8- PT, all the four appellants (simultaneously) pointed out the place where Himanshu had been caught hold of, belaboured and murdered. By the nature of things, these statements are not admissible in evidence inasmuch as those purport to be incriminating in character and those are not proved to have led to the discovery of a fact. The demarcation of a place of occurrence cannot be said to be the recovery of a fact which could bring that offence within the ambit of provisions of Section 27 of the Indian Evidence Act. Insofar as the adjudicatory exercise in the present case is concerned, the mere recovery of a motor cycle does not connect the appellants with the crime with which they were charged. Though the FSL report is to the effect that clothes taken off the dead body of deceased Himanshu by the Medical Officer, were found to be have blood stains of human origin but there is no evidence to prove commonness in between blood group found on those clothes and blood group of the deceased. It is only on proof of that fact that the prosecution could draw sustenance from the FSL report in the relevant behalf. After having scanned entire evidence on record and further having noticed that there is no substantive evidence to connect the appellants with the crime for which they were convicted, we are of the opinion that this appeal deserves to be allowed and we so order accordingly. The appeals filed by Sukhbir alias Sukhan, Mukesh, Manoj and Zile Singh shall stand allowed. The finding of conviction recorded by learned Trial Judge shall stand set aside. The appellants shall stand acquitted of the charge. ( S. D. ANAND ) JUDGE May 20, 2008 (ADARSH KUMAR GOEL) Pka JUDGE