IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Criminal Appeal No. 534-DB of 2000 Dated of Decision:- March 05, 2009 Ashok Kumar and another ....APPELLANTS VERSUS The State of Haryana ....RESPONDENT 2) Criminal Appeal No. 118-DB of 2001 Arun ....APPELLANT VERSUS The State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE L.N.MITTAL Present:- Sh. R.S.Cheema, Senior Advocate with Sh. Pawan Girdhar, Advocate for the appellants. (In Crl. Appeal No. 534-DB of 2000). Sh. Gorakh Nath, Advocate for the appellant. (In Crl.Appeal No.118-DB of 2001) Sh. Kulvir Narwal, Addl. Advocate General Haryana for respondent. ------ 2 Criminal Appeal No. 534-DB of 2000 & Criminal Appeal No. 118-DB of 2001 MEHTAB S.GILL, J. We are deciding Criminal Appeal No.534-DB of 2000 and Criminal Appeal No.118-DB of 2001 with a common judgment/order, as they arise out of the same judgment/order dated 6/9.9.2000 of the learned Addl. Sessions Judge, Sonepat. The learned trial Court convicted Ashok Kumar son of Karan Singh, Shri Om son of Sahab Singh Beragi and Arun son of Mahender Singh Tyagi under Section 302 read with Section 34 IPC and sentenced them to undergo life imprisonment. They were directed to pay a fine of Rs.15,000/- each and in default of payment of fine to further undergo R.I. for three years. Appellant Shri Om was further convicted under Section 25 of the Arms Act and sentenced to undergo two years R.I. He was directed to pay a fine of Rs.3,000/- and in default to further undergo R.I. for six months. Sentences were ordered to run concurrently. The case of the prosecution is unfolded by the statement Ex.PC of Hawa Singh given to SI Inder Singh, SHO, Police Station Sadar, Sonepat. Hawa Singh stated, that he is Chowkidar in Village Barwasni. On 9.10.1998 in the morning, Kehar Singh son of Khema of Village Barwasni came and told him that in the canal of west Yamuna of Village Barwasni near the Juan drain, a dead body of a young man was floating on the eastern side of the drain. Blood was smeared on his clothes. Hawa Singh along with Mehar Singh, Mohinder Singh Chowkidar, Jai Kishan son of Inder Singh went to the Barwasni canal and found the dead body of a young man on the bridge of the eastern side of the canal, which was 3 Criminal Appeal No. 534-DB of 2000 & Criminal Appeal No. 118-DB of 2001 entangled in the grass. Blood was smeared on his clothes. Murder of a young man had been committed by unknown persons. On the basis of this statement, FIR Ex.PC/1 was registered was on 9.10.1998 at 9.30 a.m. and the special report Ex.PC/2 reached the J.M.I.C. on the same day at 6.40 p.m. The prosecution to prove its case brought into the witness box, HC Hawa Singh PW1, MHC Ramesh Chander PW2, Hawa Singh Chowkidar PW3, Puran PW4, Meera PW5, Constable Surender Singh PW6, UGC Sukhbir Singh PW7, Constable Bijender Singh PW8, Dr. S.K.Dhattarwal PW9, Ashok Kumar Patwari PW10, Dilsher PW11, Sita Ram PW12, Sube Singh PW13, SI Inder Singh PW14, DSP Abhey Singh PW15 and Jamma Hushan PW16. In defence, the accused examined Hoshiar Singh DW1. Learned counsel for the appellants has argued, that both the star witnesses of the prosecution i.e. Dilsher PW11 qua the extra judicial confession and last seen evidence as propounded by Sube Singh PW13 are not reliable witnesses. Dilsher PW11 did not have any association with the appellants, but has associated with the family of the complainant. It is unsafe to rely upon this witness, as he is telling lies regarding his past life. He has been tried in a number of criminal cases, but has denied it when he came into the witness box before the Court. After the alleged extra judicial confession made by appellants before Dilesher PW11, he has stated that he went to meet Mr. S.P.Tyagi, Advocate, but did not tell him anything about the occurrence. Appellants surrendered on 28.10.1998. There was no need for 4 Criminal Appeal No. 534-DB of 2000 & Criminal Appeal No. 118-DB of 2001 the appellants to confess their guilt before Dalsher PW11 on 22.10.1998, as they surrendered in Court themselves on the same day. Similarly, the last seen evidence propounded by Sube Singh PW13, the uncle of the deceased, is also not trustworthy. Sube Singh PW13 has stated, that he last saw the deceased in the company of appellants Ashok Kumar and Arun on 7.10.1998, but strangely he did not tell anything to Puran PW4, the father of the deceased for a couple of days. In the remand application dated 24.10.1998, where the Investigating Officer has prayed for police remand of the accused, nothing has been mentioned about the extra judicial confession made by Dilsher PW11 and the last seen evidence propounded by Sube Singh PW13. Puran PW4 in his testimony has stated nothing regarding suspicion qua the appellants. Learned counsel for the State has argued, that the last seen evidence as propounded by Sube Singh PW13 is categorical and clear, that it was appellants Ashok Kumar and Arun who took the deceased away. Dr. S.K.Dattarwal PW9, who prepared the post mortem report has stated, that death must have occurred 2/3 days earlier. Dilsher PW11 has an association with the police. He has known to the police and that is the reason, appellants came to him so that they could be produced before the police and also they be not harassed. Father of the deceased Puran PW4 has been truthful in not pointing out a finger towards anyone so that the Investigating officer could come to the truth without any influence. 5 Criminal Appeal No. 534-DB of 2000 & Criminal Appeal No. 118-DB of 2001 Disclosure statement Ex.PE made by appellant Ashok Kumar and knife recovered qua the disclosure statement Ex.PF of appellant Arun are pointing to the guilt of the appellants. The spot from where the body was recovered has been pointed out by appellant Shri Om, which is Ex.PP. We have heard the learned counsel for the parties and perused the record with their assistance. Puran PW4, the father of the deceased, in his testimony before the Court has stated, that his son Dharamender alias Sarfudeen was working as a tailor near Subzi Mandi Sonepat. He had to commute daily. On 9.10.1998 the police told him of the discovery of the dead body of his son, as his son had gone missing. He identified the dead body of his son from his facial look, general appearance and an identification mark on the right side of his chest. Puran PW4 strangely has not pointed out an accusing finger towards the appellants. He has not said a word, that the appellants committed the murder of his son. He in fact has not even suspected them of committing the murder of his son. In his cross-examination also, he has not stated anything against the appellants. We are left with the statements of the two witnesses i.e. Dilsher PW11, before whom the alleged extra judicial confession was made and Sube Singh PW13, who allegedly saw the deceased in the company of appellants Arun and Ashok Kumar. Coming first to the statement of Dilsher PW11, he has stated, that he is the ex-Sarpanch of Village Dewru. On 22.10.1998, when he was on his way to Sonepat to attend the courts, he met the three appellants at Hanuman Mandir about 50 yards away from the court building. All the 6 Criminal Appeal No. 534-DB of 2000 & Criminal Appeal No. 118-DB of 2001 three told him, that on 7.10.1998 they had killed Sarfudeen @ Dharmender and threw his dead body in the Barwasni canal. He was the ex- Sarpanch of the village. He wanted to produce them before the police so that they were not harassed. They went away and he waited for two hours, as he was under the impression, that the appellants would come back. After waiting for them, he went to meet Mr. S.P.Tyagi, Advocate and thereafter he went to police station Sadar Sonepat. This witness was put a suggestion, that he was involved in 35 cases of theft and dacoity. In some cases, he was convicted and in some he was sentenced. He has denied his involvement in any case, but admitted that when he was a young boy, he was convicted in the case of theft of chillies. He has further stated, that he was a witness for the prosecution in some cases. This witness has stated, that he knew the father of deceased Dharmender and he had accompanied him to the hospital. Dilsher PW11 in fact is not telling the truth. Firstly, if the appellants had made an extra judicial confession before him on 22.10.1998, then there was no need for them to surrender in the Court on the same day i.e. on 22.10.1998 and they would have waited for Dilsher PW11 to produce them before the police. Constable Hoshiar Singh, who appeared as DW1, has brought on record a number of FIRs, which have been registered against Dilsher PW11. Photo copies of some of them have been put on record as Ex.D1, Ex.D2, Ex.D3, Ex.D4 and Ex.D5. By denying that no FIR has been registered against him except one, Dilsher PW11 has shown himself to be an untruthful witness. His testimony cannot be believed. Coming to the other witness Sube Singh PW13, who has stated, that he last saw the deceased in the company of appellants Arun and Ashok 7 Criminal Appeal No. 534-DB of 2000 & Criminal Appeal No. 118-DB of 2001 Kumar. His testimony is also not worthy of any credence. He has stated before the Court, that he was present in the chaubara in Subzi Mandi Sonepat on 7.10.1998, where a companion of Sarfudeen @ Dharmender named Pappu used to work. Appellants Ashok Kumar and Arun came there and asked Dharmender to company them to some place. Dharmender went away with them. He was in the chaubara with Hawa Singh PW3. Both of them stayed there for 5/10 minutes and then returned to the village. He learnt after about 2/3 days, that Dharmender had been murdered. Hawa Singh PW3 has not stated anything regarding deceased Dharmender being in the company of appellants Arun and Ashok Kumar. Sube Singh PW13 is the uncle of the deceased. There was no need for him to keep quiet for 2/3 days and tell Puran PW4, regarding deceased being seen with appellants Arun and Ashok Kumar so late. This witness also has been implanted and is not telling the truth. In application dated 24.10.1998 of police remand being requested by the Investigating Officer from the Magistrate, there is no specific reference to the statements of Dilsher PW11 and Sube Singh PW13. If on 24.10.1998 Dilsher PW11 and Sube Singh PW13 were in custody of the Investigating Officer Inder Singh, SHO PW14, he would have mentioned it in the remand application so that he could convince the Duty Magistrate to get the police remand of the appellants. We have perused the remand application, but nothing has been mentioned about Dilsher PW11 and Sube Singh PW13. In fact by going through the remand application it seems that by 24.10.1998 statements of Dilsher PW11 and Sube Singh PW13 had not been recorded. 8 Criminal Appeal No. 534-DB of 2000 & Criminal Appeal No. 118-DB of 2001 Learned counsel for the appellants has relied upon the judgment of the Hon’ble Supreme Court in Surinder Kumar Vs. State of Punjab, AIR 1999 Supreme Court 215, where the Hon’ble Apex Court has observed as under: - “ 5. Having carefully gone through the entire evidence on record, we are unable to hold that the prosecution has been able to conclusively prove the charge levelled against the appellant. Coming first to the extra-judicial confession, we find that the evidence of P.W.6, who only testified about it, is improbable and lacking in credence. It does not stand to reason- rather it seems odd- that all the four accused persons should be seized at the same time by a mood to approach P.W.6 to make a joint confession. It is significant to note that they had no particular relationship or connection with P.W.6, so as to confide in him and take his assistance for surrendering before the police. If really, they wanted to surrender- as is the evidence of P.W.6- we fail to unserstand why instead of going to the Police they would approach him and blurt out a confession before him. Another compelling reason which makes the evidence of P.W.6 in this regard suspect is that even though he was, admittedly, close to the family of the deceased, he did not disclose the names of the accused persons to Mrs. Nirmal Pal (P.W.2), the wife of the deceased, who lived at a distance of one furlong from his house and was not aware as to who killed her husband. His claim that he told P.W.10 about the confession on July 5, 1992 is also not corroborated by him (P.W.10). While on this point it is pertinent to mention that in the remand application that P.W.10 filed on July 10, 1992 after producing the accused before the Magistrate concerned he did not disclose that they had made a confession before P.W.6. From the impugned judgment we find that when this aspect of the matter was brought to the notice of the High Court by the 9 Criminal Appeal No. 534-DB of 2000 & Criminal Appeal No. 118-DB of 2001 appellant’s counsel it observed that all details were not required to be given in that application. We are unable to share the above view of the High Court for if really such a confession was made before P.W.6 and told to P.W.10 it was expected that in praying for the remand of the accused, he (P.W.10) would refer the same, for that was the only material on which the prosecution could primarily rely in justification of such prayer. For the foregoing reasons we are unable to accept the claim of P.W.6 that the appellant and other accused made a confession of their guilt before him”. This judgment (supra) applies squarely to the case in hand. With the above discussion and observations, a doubt is created in our mind as to whether the appellants have committed the murder of Dharmender @ Sarfudeen, the benefit of which goes to the appellants. Criminal Appeal No.534-DB of 2000 and Criminal Appeal No.118-DB of 2001 are allowed. Conviction and sentence of the appellants is set aside. They are acquitted of all the charges framed against them. If in custody in this case, they be set free forthwith. (MEHTAB S.GILL) JUDGE (L.N.MITTAL) March 05, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO