IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.69-DB of 2000 Date of Decision: 19.02.2009 Balram @ Ballu Appellant Versus State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.K.K.Aggarwal, Senior Advocate with Mr.Kapil Aggarwal and Mr.R.K.Agnihotri, Advocates for the appellant Mr.S.S.Randhawa, Addl.A.G. Haryana for the respondent-State …. Jasbir Singh, J. Criminal Appeal No.69-DB of 2000 2 It was allegation against the appellant and two others that on 19.8.1997, they have abducted deceased Mahabir and thereafter murdered him. Dead body of Mahabir was recovered on 1.10.1997 in the area of village Luhari district Bagpat U.P. Vide judgment dated 12.1.2000, co- accused of the appellant, namely, Om Pal and Sanjay alias Sanjeev, were acquitted of the charges framed against them, however, the trial Court held the appellant guilty for commission of an offence punishable under Section 302 IPC. On 13.1.2000, he was sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/-. Hence, this appeal. Process of law was set in motion on a statement made by Daya Chand – PW6 (father-in-law of the deceased), which was made basis for registration of an FIR (Ex.PB) against the appellant and two others on 29.8.1997 at 9.30 PM in police station Gohana, district Sonepat. The prosecution’s story, as noticed by the trial Court, in paragraph Nos.2 and 3 of the judgment under challenge, reads thus:- “2. Shri Daya Chand had lodged report with the police in August 29, 1997 about the manner in which Mahabir had disappeared from Ganaur on August 19, 1997 never to be seen again. The complainant had further informed the police that one Ram Diya son of Udmi Jat was his brother in village relationship. He was maintaining a woman called Kasturi. He had bequeathed all his property in her favour through a will. Kasturi and Ram Diya were never blessed with a child. Kasturi also refused to look after Ram Diya after he had bequeathed his property in her favour. The complainant would look after Ram Criminal Appeal No.69-DB of 2000 3 Diya to the best of his ability and the latter thus cancelled the earlier will in favour of Kasturi and executed a fresh will in his favour. In the meanwhile, Kasturi adopted one Wazir son of Sadra. The matter was agitated in a revenue court, which was decided in favour of the complainant on 11.8.1997. Deceased Mahabir was the son-in-law of complainant Daya Chand who would help his father-in-law in his litigation against Kasturi and Wazir son of Sadra. Accused Balram alias Ballu used to keep the company of Mahabir in those days. 3. The police was further informed by the complainant that even after winning the case, Mahabir offered Wazir and his relative Dalbir to contact him at Ganaur on 19.8.1997 for settling the dispute in an amicable manner. Both of them arrived at Ganaur at about 2.00 p.m. on 19.8.1997. Mahabir and Balram alias Ballu also arrived there on a Hero Honda motor cycle. Wazir and Dalbir threatened to eliminate them in case the matter was not settled amicably on that day. At that juncture, deceased Mahabir offered to sort out the matter at the town of Sonepat. Deceased Mahabir and accused Balram alias Ballu then traveled to Sonepat on a motor cycle whereas Wazir and Dalbir started from Ganaur for Sonepat in a bus. Mahabir was not heard of thereafter. The complainant expressed his apprehension that Balram alias Ballu Dalbir and Wazir may have eliminated Mahabir. Mahabir was carrying a sum of Rs.10,000/- in cash with him at the time of his disappearance.” Criminal Appeal No.69-DB of 2000 4 Initially, FIR was recorded under Section 364 IPC. The matter was investigated by SI Inder Singh (PW5). The investigation, thereafter, was handed over to ASI Leelu Ram (PW11). The appellant was arrested on 30.9.1997. On a disclosure statement (Ex.PA) made by him, dead body of deceased Mahabir was recovered from a place indicated by him against recovery memo (Ex.PG). Dead body was in the shape of a skeleton. Post- mortem examination was conducted by Dr.J.K.Jain (PW18), who opined that the skeleton was of a young male of about 30 years of age. However, this witness opined that it was not possible for him to give cause of death. It is necessary to mention here that watch, chappals, clothes and cash amount was recovered from the co-accused, who were acquitted vide the impugned judgment. On completion of investigation, final report was put in Court. Accused were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 18 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, they pleaded innocence and false implication. However, they led no evidence in defence. The trial Court on appraisal of evidence, acquitted Om Pal and Sanjay alias Sanjeev of the charges framed against them, however, the appellant was convicted and sentenced as found mentioned in earlier part of this judgment. Shri Aggarwal, counsel for the appellant has vehemently contended that the trial Court was not justified in passing the order of Criminal Appeal No.69-DB of 2000 5 conviction and sentence against the appellant. Prosecution has failed to prove any motive with the appellant to commit murder. He has further argued that there was a delay of about ten days in recording the FIR, which the prosecution has failed to explain. Intervening period was used to falsely implicate the appellant in this case. The ‘last seen’ witnesses are discrepant with regard to material details of the case. PW10 Kavita wife of the deceased was a chance witness. PW7 Dalbir Singh was introduced as a witness on 9.12.1997. His testimony does not inspire confidence. Except recovery of human skeleton at the instance of the appellant, there exists no other evidence against him indicating towards commission of an offence. Fateh Singh (PW15), father of the deceased has not supported prosecution’s case against the appellant. This witness has given altogether a different version of the occurrence. By stating that prosecution witnesses were highly interested, prayer has been made to allow this appeal and acquit the appellant of the charges framed against him. Prayer made has vehemently been opposed by the State counsel, who by making reference to the statements of PW6, PW7 and PW10, argued that the prosecution was successful in bringing home guilt of the appellant- accused. The deceased was ‘last seen’ with the appellant and thereafter dead body (skeleton) of the deceased was removed on a disclosure statement made by the appellant. Motor cycle of the deceased was also recovered at the instance of the appellant. He prayed that appeal having no substance be dismissed. On perusal of paper book, we are convinced that the prosecution has failed to establish any motive with the appellant to commit murder of Criminal Appeal No.69-DB of 2000 6 deceased Mahabir. As per case of the prosecution, Mahabir was last seen with the appellant on 19.8.1997. Daya Chand (PW6) father-in-law of the deceased, at whose instance FIR was registered against the appellant, has stated that the appellant was on friendly terms with the deceased and he had been attending Courts with him (deceased) in connection with suit filed by the above said witness. He has further stated that on the fateful day, at about 2.00 PM, when he, his wife and daughter Kavita (PW10) were present in their house in his village Bajana Khurd, the appellant, along with the deceased came there on a motor cycle. Wazir and Dalbir son of sister of Daya Chand threatened to eliminate Mahabir in case he failed to effect compromise regarding land in dispute. It has further been stated that thereafter deceased and the appellant left for Sonepat on a motor cycle. In his statement, he has nowhere stated that the deceased was ever threatened by the appellant and further that the witness had given the deceased Rs.10,000/- on that day. This witness has made many improvements in his statement when deposed in Court. Kavita (PW10) wife of the deceased appears to be a chance/ introduced witness. This witness has failed to explain has to why she was available in the house of her parents on 19.8.1997, why she went to Sonepat thereafter. This witness has further stated that her father had also accompanied her to Sonepat, which fact was not narrated by PW6 in his deposition. Both these witnesses had made an attempt to say that the appellant had spent money in the process of litigation, he was demanding it back and due to that he has committed murder of Mahabir. PW7 Dalbir again was a chance witness, he is closely related to the deceased. It was his case that he met the deceased and the appellant on 19.8.1997 for about 2-3 Criminal Appeal No.69-DB of 2000 7 minutes. Statement of PW7 was recorded on 9.12.1997. This witness has deposed that he had narrated, the fact of ‘last seen’ of the appellant with the deceased, to his wife (deceased’s) on 24th and 25th August, 1997. It is very strange that even then the entire family kept mum and the FIR was got recorded only on 29.8.1997. Delay has not been explained. Story of the prosecution dashed to the ground when we read statement made by Fateh Singh (PW15), father of the deceased. He has given altogether a different version regarding disappearance of the deceased. He has made an attempt to find faults with Kavita (PW10) wife of the deceased. As per prosecution version, after his arrest on 30.9.1997, the appellant was interrogated on 1.10.1997 and he disclosed regarding commission of murder of Mahabir and where body was thrown and to whom articles like watch etc. were entrusted. Disclosure statement, stated to have been made in the presence of Fateh Singh, however, this witness has categorically stated that the appellant was not interrogated in his presence. Fateh Singh (PW15) has further stated that his wife had seen the appellant in the company of Kavita (PW10) before arrest of the appellant in this case. Witness has further stated that during this period the appellant was in contact with Kavita on a telephone. He has further stated that as per his opinion Kavita went to meet the appellant twice when he was lodged in jail, at Merrut. The witness was declared hostile. The statement of Fateh Singh (PW15) father of the deceased has destroyed case of the prosecution to a greater extent. We feel that depositions made by PW6, PW7 and PW10 do not inspire confidence. The witnesses have tried to improve their case at every step. It appears that they were stating lies. Criminal Appeal No.69-DB of 2000 8 The facts mentioned above clearly indicate that the prosecution has failed to prove charges against the appellant beyond a shadow of reasonable doubt. Accordingly, this appeal is allowed, judgment and order, under challenge, dated 12.1.2000 and 13.1.2000 are set aside. The appellant is acquitted of the charges framed against him. (Jasbir Singh) Judge 19.02.2009 (Jora Singh) gk Judge