IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.45-DB of 2000 Date of Decision: 12.02.2009 Satpal and others Appellants Versus State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.Baldev Singh, Senior Advocate with Mr.Saurabh Singh, Advocate for the appellants Mr.S.S.Randhawa, Addl.A.G. Haryana for the respondent-State …. Jasbir Singh, J. Appellants along four others were put to face trial for commission of offences under Sections 302/34, 506, 201 IPC. Vide the impugned judgment dated 19.11.1999, appellants were convicted, however, others were acquitted. By order dated 20.11.1999, the appellants were sentenced to undergo imprisonment for life for commission of an offence under Section 302 read with Section 34 IPC. Hence, this appeal. Record reveals that the criminal law was set in motion on a complaint filed by Smt.Ram Piari widow of Shanker (mother of deceased Lalu) against the appellants, accused who were acquitted and SI Darshan Criminal Appeal No.45-DB of 2000 2 Kapoor, Vishnu Dutt, ASI. After recording preliminary evidence, the trial Court summoned all the accused, including the appellants, however, the police officials, named above, were not summoned to face trial. The trial Court has noticed following facts:- “3. It has been averred by the complainant that Lalu (deceased) was her younger son and that he used to work as labourer for digging tubewells with Sat Pal, Ram Kala and Darshan for the last five years. Deceased and Darshan used to take some money from Sat Pal for their livelihood and however, the remaining money used to be kept by Sat Pal as a trustee as he was Leader of the party. It is also averred that Rs.28,000/- were already collected by Sat Pal. 4. Further assertion of complainant is that on 3.9.1992 Sat Pal accused No.1 came to her house and asked Lalu to accompany him for clearing the accounts of his labour. He also told Lalu in the presence of complainant that he had already called Darshan and Ram Kala and directed them to reach his house. Lalu deceased left his house with Sat Pal on his cycle in the presence of complainant and however did not return thereafter. 5. Further case of complainant is that at about 5.00 P.M. in the evening Darshan P.W. came to her house at about 5.00 P.M. and told her that on the previous day, he along with Sat Pal, Ram Kala, Lalu and Gogi was present in the Criminal Appeal No.45-DB of 2000 3 house of Sat Pal to settle their labour account and to divide the money lying with Sat Pal. Lalu deceased and he were persuaded by Sat Pal, Ram Kala and Gogi to take liquor and thereafter, accused Sat Pal, Ram Kala, Gogi and Smt.Sona Devi w/o Sat Pal took false excuse of molestation of Smt.Sona Devi and put a parna (piece of cloth) around the neck of Lalu and dragged him on the ground as a result of which Lalu died. Darshan also told her that when he cried that Lalu has been killed by the accused, he was also given beating by them and was handed over to police station Siwan by all of them as well as by co-accused Vinod Kumar, Madan Lal and Dharamender. Darshan also told her that he also cried in the police station and however, Darshan Kapoor, SI/ SHO and Vishnu Dutt ASI gave him thrashing and told him that he had molested wife of Sat Pal and that is why, she was brought there and that he was released from police custody in the presence of all the accused including accused Vinod Kumar, Madan Lal and Dharmender by giving threat that he should not disclose this fact to anybody. 6. Further case of complainant is that after receiving the said information from Darshan Singh, she went to police station at about 5.30 P.M. and however, Darshan Criminal Appeal No.45-DB of 2000 4 Kapoor, Sub Inspector and Vishnu Dutt Sharma ASI did not listen to her.” Dead body of Lalu was recovered on 5.9.1992 from a pond in the village. Post-mortem examination of the dead body was conducted by Dr.B.B.Kakkar (PW1). On observing that body was in advance stage of putrification, he sent it for post-mortem examination to the Department of Forensic Medicines, PGIMS Rohtak. Post-mortem on the dead body was conducted by Dr.S.K.Bhattarwal (PW6) on 7.9.1992. As per his opinion, cause of death was due to drowning. When police failed to take any action, Smt.Ram Piari filed a complaint before Ilaqa Magistrate on 29.10.1992. In preliminary evidence, she produced five witnesses and also brought on record documentary evidence to prove her case. The accused named therein were summoned to face trial. The case was committed to the Court of Sessions for trial vide order dated 18.1.1994. Vide order dated 5.5.1994, accused Sat Pal, Ram Kala, Gogi, Smt.Sona Devi were charge sheeted for commission of an offence punishable under Section 302 read with Section 34 IPC for committing murder of Lalu, as mentioned above. However, on 5.5.1994, co- accused, namely, Madan Lal, Vinod Kumar Midha and Dharamender alias Bittu were ordered to be discharged. Complainant went in revision, this Court vide order dated 23.9.1994, set aside that order and persons, named above, were also ordered to face trial. Thereafter, the trial judge charged them for commission of offences under Sections 506/201 IPC. During trial, prosecution produced six witnesses and also brought on record documentary evidence to prove its case. On conclusion of Criminal Appeal No.45-DB of 2000 5 prosecution’s evidence, statements of the accused were recorded under Section 313 Cr.P.C. Incriminating material was put to them, they pleaded innocence and false implication on account of party faction in the village. They further stated that it was a case of blind murder. They also led evidence in defence. The trial Court on appraisal of evidence, as led by the parties, found that the prosecution was successful in bringing home guilt of the appellant-accused, against others, the prosecution failed to prove its case and accordingly, they were acquitted, however, the appellants were convicted and sentenced as found mentioned in earlier part of this order. Counsel for the appellants has vehemently contended that the trial Court was not justified in convicting and awarding sentence to the appellants. By making reference to the statements made by Dr.B.B.Kakkar (PW1) and Dr.S.K. Bhattarwal (PW6), counsel argued that medical evidence does not corroborate with the ocular version given by the complainant/ prosecution. He brought it to our notice that as per allegation of the complainant, murder of Lalu was committed on 3.9.1992, his body was recovered on 5.9.1992, however, when it was brought to the hospital for post- mortem examination, it was found that the body was in advance stage of putrification, which is not possible in such a short span of time. He further stated that the trial Court has convicted the appellants on conjectures and surmises. Main reliance has been placed on affidavit (Ex.DA) of Darshan (PW3). Reading of the above said document negatives case of the complainant. The trial Court has wrongly relied upon the same. He prayed Criminal Appeal No.45-DB of 2000 6 that appeal be allowed and judgment under challenge be set aside acquitting the appellants. Prayer made has vehemently been opposed by the State counsel. He by making reference to affidavit(Ex.DA) of Darshan (PW3) has stated that this document was brought on record by the defence. In the affidavit, vivid description, as to how death has occurred, is given. Once the defence has relied upon this document, now different stand cannot be taken by stating that contents of the affidavit cannot be read to convict the appellants. He prayed that appeal, having no substance, be dismissed. After hearing counsel for the parties, we feel that the trial Court has misread evidence on record. When we read statements made by Dr.B.B.Kakkar (PW1) and Dr.S.K.Bhattarwal (PW6), it becomes apparently clear that death may have occurred prior to 3.9.1992. It was case of the complainant that Satpal-appellant No.1 came to the house of the complainant on 3.9.1992 and took Lalu deceased with him for clearing accounts, regarding labour done by him. Lalu did not come back. The complainant has stated that on the next day at 5.00 PM, Darshan (PW3) came to her and told that Lalu has been killed by the appellants and other accused, named in the complaint. The trial Court, to convict the appellants, has placed primary reliance on affidavit (Ex.DA) executed by Darshan (PW3) on 18.9.1992. In that affidavit, he has categorically stated that Lalu was murdered by the appellants and others at about 7.00 PM on 3.9.1992. In his affidavit, he has specifically stated that after the occurrence, he came out from the house of the accused, raised alarm, which attracted residents of the village. They did not hear him, rather he was taken to the Criminal Appeal No.45-DB of 2000 7 police station on the ground that he had come there to insult women folk of the Mohalla. He was kept in the police station and released only at 3.00 PM on 4.9.1992. He has further stated that he was threatened by the police officials not to disclose factum of killing Lalu by the appellants. Out of fear, he kept mum and got executed affidavit, stating the truth, only on 18.9.1992. Dead body was recovered on 5.9.1992. Dr.B.B.Kakkar (PW1) has stated that body was decomposed and in view of that he asked the Senior Medical Officer to constitute a Board to conduct post-mortem. Due to decomposition of the body, Board of doctors could not ascertain the cause of death and its duration. It was decided that after preliminary examination of the dead body, the same may be referred to MHC Rohtak. He made the following observations with regard to body of the deceased:- “It was the dead body of 5’ 7” male. Mark of ligature could not be identified due to advance stage of putrification. A young decomposed and blotted body of a male aged about 30 years wearing one Kurta, Pyjama of light pink colour. White netted vest. There was lot of foul smell from the body and flies in various stages of development all over the body. The skin of hands and feet were bleached and skin can be pealed off at various places easily and scalp hair can be easily pulled out. The colour of the skin varies from red, blue and green various places. Examination of chest Criminal Appeal No.45-DB of 2000 8 Wall as described, dissection not done to avoid the disturbance of antamocal detail of visceras. Scalp, head and neck were not open. External appearance already described. Abdomen. Distended as described already not dissected mouth, pharynx and oesophagus. Mouth was open. Some of the teeths were missing. Tongue was protruded, swollen and bluish in colour. Regarding other organs dissection was not done to disturb entomical details of visceras and their contents. Other external details of visceras. In our opinion the cause of death could not be ascertained due to advance stage of putrification of the body. So the body was being sent to the Forensic Medicines Department, Medical College Rohtak for expert opinion.” Statement made by Dr.B.B.Kakkar (PW1) indicates that body was in advance stage of putrification. Dr.S.K.Bhattarwal (PW6) conducted post-mortem on the body on 7.9.1992. He made the following observations:- “The length of the dead body was 5’-9”. Body was received in a sealed wooden box bearing 12 intact seals, talling with sample seal. On opening, it was found containing a dead body of a male, naked, wet, emitting foul small, maggots of size 0.5 cm to 1 cm crawling all over the body. A synthetic dirty white cotton thread was tied around wrist. There was degloving of both hands and feet, epidermis peeled off at places, right eye ball was eaten by maggots, ear, nose, eyes,lips disfigured, exposing nasal bone, mouth was open and mud was present in Criminal Appeal No.45-DB of 2000 9 oral cavity. Scalp hair were black, 3-5 cm; moustache 2-3 cm long black, beard 2-3 cm long black, hair easily pulled out. Pubic hair 4-5 cm, curly black. There was loosening of nails. Nasal cavity contain mud. Post mortem standing was present on face and anterior aspect of trunk, dermis over both hands and feet sodden. Scalp, skull, vertebrae, thoracic walls were healthy. Brain was decomposed. Pleural cavity contained blood stained froth. Larynx and trachea contain mud. Lungs were voluminous and oedematus, post mortem bullae was present. Heart was empty and softened. Abdominal wall was distended. Peritoneum cavity was normal. Mild grinding of teeth was present and there was over riding of anterior teeth of both jaws. Pharynx and oesophagus contained mud. Stomach contained about 100 grams mud. Small intestines contained mud and digested food material. Large intestine contained faecal matter and gases. Liver, spleen, kidneys were congested and softened. Organs were preserved for chemical analysis. Bladder was empty. Penis and scrotum were partially eaten by maggot.” As per opinion, death was due to drowning. Statement made by above said witness indicates that body was totally decomposed. Blood was present in pleural cavity. Larynx and trachea contained mud. Pharynx and oesophagus also contained mud. Stomach contained about 100 grams of mud. Small intestines contained mud and digested food material. Medical evidence clearly suggests that death was by drowning and not by Criminal Appeal No.45-DB of 2000 10 strangulation. Presence of mud in stomach and other parts of the body clearly indicates in that regard. Darshan (PW3) in his affidavit (Ex.DA) has categorically stated under:- “Ram Kala, Satta and Gogi caught the neck of Lal Singh and strangulated his throat. Till Lal Singh did not die uptill that Satta, Ram Kala, Gogi did not leave Lal Singh.” Affidavit of Darshan (Ex.DA) has primary been relied upon by the trial Court to convict the appellants. If this affidavit is to be believed then there was no question of mud being found in the stomach of the deceased. Medical evidence clearly suggests that mud can be found in the stomach etc. if it was a case of drowning or that the deceased was in a coma at the time when body was thrown in the water. To overcome this difficulty, Bhagwan Singh (PW4) was introduced as a witness. He has stated that on 3.9.1992, he had seen Satpal, Ram Kala, Gogi taking a body, which had slight movements. We are of the opinion that deposition of this witness cannot be believed. If he had seen the appellants-accused taking a dead body, it was expected from him to intimate this fact to a Panch, Sarpanch or any other respectable of the village. He did not do that, rather he left for his village and came back after 13-14 days. It was case of the complainant that the deceased went with Satpal –appellant in the evening on 3.9.1992. When he failed to return, no effort was made to search him or to inform the police. She has stated in her complaint that she got intimation regarding death of Lalu from Darshan (PW3) on 4.9.1992 at 5.00 PM. However, this witness, in his affidavit (Ex.DA) has stated that he kept mum out of fear of the police and did not disclose factum of death of Lalu to anybody till the time he executed his Criminal Appeal No.45-DB of 2000 11 affidavit on 18.9.1992. Darshan (PW3) has also stated that on 3.9.1992 when he raised alarm, police had reached the spot, he intimated the police officials regarding murder of Lalu, however, the police did not bother to see the dead body. This statement do not inspire confidence. It was case of the prosecution that at the instance of Satpal – appelalnt-accused deceased had done labour work with many parties and he was to get money from the above said accused. The complainant has failed to state with which person deceased Lalu had done the labour work. Immediately after recovery of the dead body on 5.9.1992, it was sent for post-mortem examination. Doctor has stated that it was in the form of advance stage of decomposition. We feel that within two days, the body will not be decomposed/ putrified to the extent as has been shown in the medical evidence on record. Further more availability of mud in the stomach and other internal parts of the body will indicate that death has not occurred in the manner in which the complainant had depicted in her complaint. It is also necessary to mention here that viscera, retained by the doctor was not sent for examination. Smell of alcohol was also not detected when post- mortem was conducted on 5.9.1992. In view of facts mentioned above, we allow this appeal, set aside the impugned judgment and order dated 19.11.1999 and 20.11.1999 respectively and acquit all the three appellants of the charges framed against them. (Jasbir Singh) Judge 12.02.2009 (Jora Singh) gk Judge