Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.523-DB of 2006 Date of decision: March 05 ,2008 1. Sher Bahadur alias Sheru son of Bhole Nepali resident of Khaira Ward No.7,Rapti Anchal, P.S. Gharai,Dhipur,Panchayat District Dang(Nepal.) 2. Ram Lal sonof Mohan Lal, resident of village Panj Ghai, Police Station Barmana District Bilaspur (HP) ......................................appellants. Versus Union Territory, Chandigarh. .........................................respondent 2. Criminal Appeal No. 580-DB of 2006 Sunil Rai alias Paua son of Sita Ram Rai, Rickshaw Puller, resident of village Dhankoul,Police Station Parsoni, District Sitamandhi,Bihar. ..................................appellants Versus Union Territory, Chandigarh ...................................respondents. CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE SHAM SUNDER Present: Mr. Bhupinder Ghai and Mr. Sumanjeet Kaur, Advocates for the appellants in Criminal Appeal No.523-DB of 2006. Mr.Arshwinder Singh, Advocate, for the appellant, in Criminal Appeal No.580-DB of 2006. Mr.N.S.Shekhawat,Advocate for U.T.Chandigarh in both the appeals. Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 2 Sham Sunder,J. This judgment shall dispose of the aforestated two appeals, bearing No.523-DB of 2006 filed by Sher Bahadur alias Sheru and Ram Lal,appellants/accused and 580-DB of 2006 filed by Sunil Rai alias Paua appellant/accused against the judgment of conviction dated 12.6.2006 and orders of sentence dated 13.6.2006 and 15.6.2006, rendered by the Sessions Judge, Chandigarh, vide which all the three accused were convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and were sentenced to undergo imprisonment for life each,and to pay a fine of Rs.5000/-each. In default of payment of fine, they were directed to undergo further Rigorous imprisonment for one year each. 2. The facts, in brief, are that on 29.3.2001 at about 8.30 p.m., Arun Kumar (PW14), Shailender Kumar Pandey ( PW9) and one Jaspreet Singh alias Chikna were present near General Post Office, Sector 17, Chandigarh. Accused Sher Bahadur alias Sheru, was also present there. Accused Sunil Rai alias Paua and accused Ram Lal also came there. Except Shailender Kumar Pandey, the remaining five entered into an altercation with each other. Accused Sunil Rai alias Paua was proclaiming that accused Sher Bahadur had broken the lock of the dickey of his rickshaw and stolen his money and clothes. He was also proclaiming that he would not spare Sher Bahadur accused. Accused Sher Bahadur told accused Sunil Rai alias Paua that he had not stolen his money and clothes and that he same might have been stolen by Dile Ram, since deceased. Accused Sher Bahadur also told Sunil Rai that he would get his money and clothes returned from Dile Ram. In the meantime, Dile Ram also came there from the side of Jagat Cinema. In the presence of the prosecution witnesses, accused Sunil Rai caught hold Dile Ram of his neck and told Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 3 him to return his money and clothes,otherwise, he would kill him. Sunil Rai and Dile Ram grappled with each other. Dile Ram, somehow got separated himself, and ran away towards Neelam Cinema, whereas, Arun Kumar and Jaspreet Singh alias Chikna,prosecution witnesses went away towards Jagat Cinema. The three accused followed Dile Ram towards Neelam Cinema by threatening him that they would not spare him. 3. On 30.3.2001, at about 8.30 am, SI Ramesh Chand Sharma, Incharge Police Post Neelam Cinema, Sector 17,Chandigarh accompanied by Constable Rajesh Kumar (PW16), saw a crowd gathered near local bus stand, on the rear side of Neelam Cinema.He went there with Constable Rajesh Kumar. On reaching there, he found a person lying in an injured condition who was later on identified as Dile Ram. There were injuries, on his head and face. He called the gypsy of control room, to the spot, and sent the aforesaid person, who was still in an injured condition, to the Post Graduate Institute of Medical Education and Research,Chandigarh. Memo Ex.PF was scribed by him. He sent the same to the Police Station through Constable Rajesh Kumar for the registration of an F.I.R. on the basis whereof, formal FIR Ex.PG was recorded by SI Birbal Singh (PW7). By that time SI Balbir Singh also came to the spot and took over the investigation of the case from Ramesh Chand Sharma,SI. 4. When SI Dalbir Singh, on receipt of a wireless message from Ramesh Chand SI (PW19) reached the spot, he found ASI Nafe Singh (PW18) and Constable Rambir (PW8) present, at the spot. He also found that SI Ramesh Chand was conducting the investigation, at the spot. SI Ramesh Chand informed SI Dalbir Singh that the injured had already been removed to the PGI in a police gypsy. SI Dalbir Singh then summoned Constable Sanjeet Kumar,Photographer to the spot,who took photographs Ex.P18 to Ex.P24 of the place where the injured was lying. The negatives of the photographs are Ex.P25 to Ex.P31. SI Dalbir Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 4 Singh (PW19) prepared the rough site plan of the place of occurrence Ex.PT.He also found that a pouch of liquor Ex.P32 was lying, at the spot. He sealed the same with seal bearing impression SV, after wrapping the same in a cloth and took the same into possession vide memo Ex.PQ , which was attested by PW15 Harish Kumar Bansal and SI Ramesh Chand (PW17)..He also took into possession from the spot one piece of brick Ex.P1, one piece of stone with concrete Ex.P2 and converted the same into sealed parcels sealed with the aforesaid seal and took the same into possession, vide memo Ex.PR, attested by the aforesaid two witnesses. He also lifted the blood stained earth, from the spot, converted the same into parcel Ex.P3, and took the same into possession vide memo Ex.PS, attested by the aforesaid witnesses. He also sent ASI Nafe Singh to the PGI, to record the statement of the injured,if he was found fit to make the same. 5. SI Dalbir Singh then went to the PGI where ASI Nafe Singh informed him that the injured had died. Till that time, the name of the injured was not known. On receipt of the report regarding the death of the injured, addition of an offence punishable under Section 302 IPC was made in the FIR. The investigation was then taken over by Inspector Arjun Singh Jaggi,Police Station Sector-17,Chandigarh (PW20). After taking over the charge of investigation on 30.3.2001 Inspector Arjun Singh Jaggi, went to the PGI on 30.3.2001. There he met PWs SI Ramesh Chand, SI Dalbir Singh and ASI Nafe Singh. Inquest report of the dead body of Dile Ram Ex.PY, was prepared. The statements of the aforesaid three police officials under Section 175 Cr.P.C. were recorded. Thereafter, Arjun Singh Jaggi,Inspector, went to the place where the deceased was found lying in an injured condition, and got prepared its scaled site plan Ex.PD. Constable Sanjeev Kumar handed over to him photographs Ex.P18 to Ex.P24 which he, in turn, entrusted to SI Dalbir Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 5 Singh and SI Ramesh Kumar, for identification of the deceased. On 31.3.2001 he and other police officials were present near Bus Stand, Sector 17,Chandigarh in connection with the investigation of this case, where he received a secret information to the effect that the deceased was Dile Ram son of Baldev Raj, and that he had been arrested a few days ago by ASI Hira Lal, in a case, under the Excise Act. He also received a secret information, to the effect, that on 29.3.2001, the deceased had been, seen in the company of accused Sunil Rai alias Paua and PWs Jaspreet Singh alias Chikna and Arun Lal near General Post Office, Sector17,Chandigarh. He joined ASI Hira Lal, in the investigation. Hira Lal identified the dead body as that of Dile Ram.He sent ASI Hira Lal to give intimation about the death of the deceased to his parents, as well as his family members. He ( Arjun Singh Jaggi) himself along with the Police party went to the General Post Office, near Jagat Cinema, in connection with the investigation. At that place PWs Jaspreet Singh alias Chikna, Shailender Kumar Pandey (PW9) and Arun Kumar(PW14) met him. He recorded their statements under Section 161 of the Cr.P.C. and from their statements he came to know of the earlier altercation of the accused with the deceased on 29.3.2001. 6. On 1.4.2001 Inspector Arjun Singh Jaggi was present in Sector 22, Chandigarh, along with some other police officials, in search of the accused. He came to know that accused Sunil Rai alias Paua had been taken by the President of the Rickshaw Puller's Union, to Police Station, Sector 17,Chandigarh. He returned to the Police Station and found that accused Sunil Rai alias Paua was present, in front of the District Courts, where he was arrested. He also recorded the statement of Chander Shekhar, President of the Rickshaw Puller's Union. He conducted the personal search of accused Sunil Rai vide memo Ex.PZ. He also thereafter, arrested the other two accused from Shanti Kunj Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 6 Garden, Sector 16, Chandigarh, and after conducting their personal search, prepared personal search memos Ex.PAA and Ex.PBB. He interrogated the accused on 2.4.2001 in the presence of police officials, Accused Sunil Rai alias Paua, made a disclosure statement Ex.PU, to the effect that he had concealed his blood stained jacket Ex.P8, in a rickshaw, parked near Minerva Showroom under the seat of the rickshaw, and could get the same recovered, by pointing out. The said statement was thumb marked by the accused. Thereafter the accused led the police party to the disclosed place, and got recovered the said jacket from underneath the seat of the rickshaw parked near Minarva Show Room, at the rickshaw stand. The jacket was converted into a parcel, duly sealed with the seal, bearing impression AS, and was taken into possession vide memo Ex.PV, attested by SI Dalbir Singh and Rakesh Kumar Pws. The rickshaw was also taken into possession vide memo Ex.PW. Rakesh Kumar produced the photostat copy of the register containing the record of renting out of the rickshaws, before Inspector Arjun Singh Jaggi.The photostat copy of the same Ex.P33, was taken into possession vide memo Ex.PX, which was also signed by the aforesaid witnesses. Site plan Ex.PCC of the place of recovery of rickshaw was also prepared.On return to the Police station, Inspector Arjun Singh Jaggi, deposited the case property with the MMHC with seals intact. 7. On 3.4.2001 Baldev Raj ,father of the deceased approached Inspector Arjun Singh Jaggi. He identified the dead body as that of Dile Ram.His statement under Section 175 Cr.P.C. was recorded and then the dead body was sent for post mortem examination vide request Ex.PDD. After the post mortem examination was over, he handed over the dead body to Baldev Raj against receipt Ex.PC. He also recorded the statements of the prosecution witnesses. After the completion of Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 7 investigation, the accused were challaned. 8. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the commitment of the case to the Court of Sessions, charge under Section 302 read with Section 34 of the Indian Penal Code was framed against the accused . The same was read over and explained to them, to which they pleaded not guilty and claimed judicial trial. 9. The prosecution, in support of its case, examined Dr.Sanjiv,SSO Biology, CFSL,Chandigarh PW1, Dr. Chander Parkash, Senior Resident, Department of Forensic Medicine, PGI,Chandigarh PW2, who conducted post mortem examination, on the dead body of Dile Ram on 3.4.2001 at 2.15 p.m. The dead body was identified by ASI Nafe Singh and Baldev Raj alias Baldev Singh. He found the following injuries on the dead body of the deceased: Lacerated wound 1 x ,8 x,8 present over 3 cm medial from right ear tragys, Oblique lacerated wound of size 2 x 1 x 1 cm present over right parital region of scalp. 10 cm above from right mustoid process and 8 cm lateral from mid line. Cruciate shaped lacerated wound of size 2.8 x 2 x 1cm present over right parietal region of scalp. Multiple abrasion reddish in colour present over left side of face in area of 8 x 6 cm. Lacerated wound of size 2 x .8 x 1 cm present over left side of face. Lacerated wound of size 2 x 1 x 1 cm and of size 1.8 x 1 x 1 cm present over lacerial one third portion of supera orbital margin of left eye and 3 cm above from it respectively. Contusion with abrasion present over left parietal eminance in area of 6 x 4 cm. Contusion present over left ear pinna in area of 4 x 3 cm and reddish in colour. Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 8 Lacerated wound of size 1.2 x .8 x 1 cm present over left side occipital region of scalp just lateral to occipital protuberance. In the scalp - Sub-aponeurotic haemotoma present over both parieto temporal region of scalp and over right frontal region of scalp of size 20 x 15 x 05 cm. Skull: Depressed communited fracture present over left f parieto temporal bone of skull in area of 10 x8 cm and fissured fracture of length 9 cm extending from anterior end of this fracture over left frontal bone of skull. 2.Depressed comminuted fracture of size 5 x 3 cm present over right temporal bone and a linear fracture of length 9 cm extending from anterior end of this fracture going anteriorily and midially reaching medial end of right orbitalfossa which extended over both anterior and middle cranial fossa of skull on both side. Meninges: Congested. Brain: extensive subdural haemotoma present over superiolateral surface of left frontal parieto temporal lobe of brain and over basal surface of left temporo parietal lobe of brain. Extensive subarachnoid haemorrahage prsent over left fronto parieto temporallobe of brain. Subarachnoid haemorrahage present over right parieto temporal lobe of brain in area of 9 x 6 cm. The doctor opined that the cause of death was oedema of brain as a result of subdural haemotoma, subarachnoid haemorrahage and skull fracture following head injury. All the injuries were ante-mortem, in nature. These injuries were sufficient to cause death, in the ordinary course of nature . The weapon used was blunt and the probable time that lapsed between the injuries and death was within 24 hours, and between death and post mortem examination was four days and four hours. He also removed pant, shirt, baniyan and underwear of the deceased which were Ex.P4 to P7. The blood from the body was also taken and the same was Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 9 put into a small bottle Ex.P9. Baldev Raj PW3, identified the dead body of Dile Ram. Constable Yash Pal, PW4, prepared the site plan on 30.3.2001 Ex.PD with correct marginal notes, Sawan Lal,Head Constable PW5, who was on duty on PCR on 30.3.2001. He stated that since Dile Ram was in injured condition,he was removed to Post Graduate Institute of Medical Education and Research. One purse and one soap were recovered, from the personal search of the deceased, which were handed over to ASI Nafe Singh and the same were taken into possession vide memo Ex.PE. Constable Sanjeev Kumar PW6 took photographs of the place of recovery of Dile Ram,who was in injured condition on 30.3.2001. On the same day he went to the PGI, where the dead body of Dile Ram, who was earlier injured,was lying. He also took the photographs of the dead body. SI Birbal Singh, PW7,recorded the FIR Ex.PG on the basis of memo Ex.PF received from SI Ramesh Chand,SI, Constable Rambir, PW8, was deputed to safeguard the dead body in PGI, Shailender Kumar Pandey PW9 is a witness to the last seen of the deceased with the accused and altercation between them, Chander Shekhar, PW10 was the President of Rickshaw Union, whereas, the accused were Rickshaw pullers. Sunil Rai alias Paua accused, made an extra judicial confession, before him regarding the causing of injuries, on the person of Dile Ram, along with his co-accused, Dr. Amarpreet Singh, Medical Officer, PW11, sent the intimation Ex.PJ to the police regarding the death of Dile Ram on 30.3.2001, HC Mahesh Chand, PW12, proved Ex.PM and Ex.PN, copies of DDRs No.9 dated 30.3.2001 and 13 dated 30.3.2001,respectively, Dr. Shifali Khanna,Sr. Resident AIIMS, PW13, was posted in Department of Emergency ,PGI,Chandigarh on 30.3.2001.She declared the injured unfit to make statement vide opinion Ex.PD/1, Arun Kumar, PW14, is a witness to the altercation between the accused and the deceased on 29.3.2001, Harish Kumar Bansal PW15, partly supported the case of the Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 10 prosecution, Rajesh Kumar,Constable, PW16, took memo Ex.PF to the Police Station, on the basis whereof, FIR was recorded, SI Ramesh Chand Sharma, PW17, at the relevant time, posted as Incharge at Police Post Neelam Cinema, Sector 17,Chandigarh, partly investigaed this case. SI Nafe Singh, PW18, was also associated, during the course of investigation of this case. SI Dalbir Singh, PW19, partly investigated this case, DSP Arjun Singh Jaggi PW20, who at the relevant time was posted as SHO, Police Station Sector 17,Chandigarh, partly investigated this case. HC Balbir Singh PW21, was posted as MHC, Police Station, Sector 17,Chandigarh on 30.3.2001, when the case property was deposited with him. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 10. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded, wherein, they were put all the incriminating circumstances, appearing against them,in the prosecution evidence. They pleaded false implication. Accused Ram Lal , in his statement under Section 313 Cr.P.C. stated that he was innocent. He further stated that he had not killed Dile Ram. The Police had wrongly arrested him in this case. He further stated that he had done nothing with regard to the commission of offence as alleged by the prosecution. He further stated that the police had taken his signatures on blank papers forcibly. 11. Accused Sunil Rai alias Paua, also stated in his statement under Section 313 Cr.P.C. that he was innocent. He further stated that he did not kill Dile Ram and that he had done nothing with regard to the commission of offence, as alleged by the prosecution. He further stated that the police had taken his thumb impressions, on a number of blank papers forcibly, during police custody, and produced false witnesses against him. Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 11 12. Sher Bahadur, accused, also took up the same plea, in his statement under Section 313 Cr.P.C. as was taken up by Sunil Rai alias Paua in his statement under Section 313 Cr.P.C. The accused, however, did not lead any defence evidence. 13. After hearing the Public Prosecutor for the State, Counsel for the accused, and, on going through the evidence, on record, the learned Sessions Judge, Chandigarh , convicted and sentenced the accused as stated hereinabove. 14. Feeling aggrieved,against the judgment of conviction and the orders of sentence, rendered by the Sessions Judge, Chandigarh, the instant appeals were filed by the accused/appellants. 15. We have heard the learned Counsel for the parties and have gone through the evidence and record of the case, carefully. 16. Learned Counsel for the appellants, at the very out-set contended that the case of the prosecution was solely based on the circumstantial evidence, which was too insufficient to prove the involvement of the appellants/accused in the commission of crime. It was further contended that no cogent and convincing evidence, was produced, by the prosecution, that the death of Dile Ram was homicidal. It was further contended that in the death summary prepared by Dr. Amarpreet Singh PW11,it was stated that the deceased had received injuries, in an accident, resulting into his death. It was further contended, that in these circumstances, no offence under Section 302 IPC read with Section 34 of the Indian Penal Code was made out. It was further contended that Dile Ram (now deceased) had consumed liquor, and sustained injuries, by a fall on hard surface, resulting into his death, and a false case was planted against the appellants/accused. It was further contended that on 30.3.2001 the dead body was identified but the post mortem was not performed till 3.4.2001.It was further contended that no reason was assigned for delay in Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 12 conducting the post mortem examination which created doubt, on the prosecution story. It was further contended that the prosecution witnesses being mostly closely related and friends of the deceased, were interested, in him, and were inimically disposed towards the accused. It was further contended that the story propounded by the prosecution that Sunil Rai alias Paua made an extra judicial confession before Chander Shekhar (PW10) on the face of it was unnatural, and improbable, but the trial Court did not take into consideration, this aspect of the matter. It was further contended that the circumstance of alleged last seen was not proved, because Arun Kumar (PW14) who was examined, in this case, was declared hostile, and was cross-examined by the Public Prosecutor for the State. It was further contended that the trial Court was, thus, wrong in recording conviction and awarding sentence to the accused/appellants. 17. On the other hand, the Counsel for the respondent, supported the judgment of conviction and the orders of sentence, rendered by the trial Court, contending that, no doubt, the case was solely based on the circumstantial evidence yet the circumstances were proved beyond doubt, and were sufficient to establish the guilt of the accused/appellants. It was further contended that the trial Court committed no illegality, in convicting and sentencing the accused/appellants. 18. The case of the prosecution, is based on the circumstantial evidence. When a case is based, on the circumstantial evidence, the Court is bound to be extra cautious, because the circumstantial evidence, has its own limitations. Before acting, on that evidence, the Court must first see, whether the circumstances, put forward, are satisfactorily proved, and whether the proved circumstances, are sufficient to bring home satisfactorily, the guilt to the accused. The established circumstances, must not only be consistent with the guilt of the accused, but, at the same time, they must be inconsistent with his innocence. While appreciating the Criminal appeal No.523-DB of 2006 and Criminal appeal No.580-DB of 2006 13 circumstantial evidence, the Court should not view, in isolation, the various circumstances. On the other hand, it is necessary to take an overall view of the matter, but without substituting conjectures for legal inferences. Incompatibility with innocence, besides compatibility with guilt, is called for, in such cases, because incriminating circumstances, can also be introduced, during the investigation, and it is a matter of common knowledge, that at times, they are falsely introduced, by way of padding, by the investigating Agency. The acid tests, laid down, by the Hon'ble Apex Court in Gambir V. State of Maharashtra, AIR 1982 (Supreme Court) 1157, Tarsem Kumar V. Delhi Administration, 1994(3) Recent Criminal Reports 587 (Supreme Court) and Sharad Birdhichand Sarda V. State of Maharashtra, 1984 CAR 263 (Supreme Court), for basing conviction, on the strength of circumstantial evidence alone, are enumerated as under : 1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established: 2. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; 3. The circumstances, taken cumulatively should from a chain, so complete, that there is no escape, from the conclusion, that within