Crl. Appeal No. 639-DB of 2000. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 639-DB of 2000. Date of Decision : 11.8.2009. Madhvi Parkash s/o Lakhpat Singh r/o Vill. Majri. ...... Appellant Versus The State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Rajbir Sehrawat, Advocate, for the appellant. Mr. H.S. Sran, Addl. A.G. Haryana for the respondent-State. NAWAB SINGH J. Challenge in this appeal is to the judgment of conviction and order of sentence dated November 15th, 2000 and November 18th, 2000 passed by Additional Sessions Judge, Jhajjar, whereby, Medhavi Parkash accused-appellant was convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/-. In default of payment of fine, he was directed to undergo further imprisonment for six months. 2. The prosecution story, in a nutshell is as follows:- A case was registered on the basis of statement (Exhibit PF) of Satbir Singh-complainant (PW-12). As per his statement, Sandeep his nephew, aged 13-14 years (deceased), was student of 8th standard. On June 10th, 1996 at about 3-4 PM, Sandeep and Medhavi Parkash accused- appellant went to Gurgaon Canal to wash Baan (cord of twisted hemp used for stringing cot-frames). After washing the Baan, Sandeep slept in the Crl. Appeal No. 639-DB of 2000. 2 Baithak (a room/house meant for men-folk in the village) of Lakhpat, father of the appellant. At about 7.30 PM, he woke-up and went somewhere. He did not return. Next day--June 11th, 1996, Bimla mother of Sandeep informed the complainant that Sandeep had not returned since last evening. A search was made but no clue was found about his whereabouts. On the same day, at about 2/2.30 PM, children of the village were having bath in the canal when they noticed a dead body of a boy floating in the canal. Bimla learnt of it. She sent her nephew Suresh to the canal to see the dead body. Suresh could not identify the dead body. He came back. Thereafter, complainant along with Ramesh and Krishan reached the canal and noticed that the dead body was that of Sandeep. The wrist of Sandeep was tied with his pant. The dead body was brought out of the canal. It had no injury mark. The complainant did not name any one for causing the death of Sandeep. The statement of complainant (Exhibit PF) was recorded by Balwant Singh (PW-9), Assistant Sub-Inspector-Investigator. He appended his endorsement (Exhibit PF/3) and sent the same to Police Station for registration of the FIR. Inquest proceedings (Exhibit PC) were conducted. Site Plan of the place of recovery of the dead body (Exhibit PL) was prepared. The dead body of Sandeep was sent for post-mortem examination, which was conducted by Dr. Hariom Manchanda (PW-1). He found ligature mark around the neck and right wrist. He opined that death occurred on account of asphyxia due to strangulation which was sufficient to cause death in the ordinary course of nature. 3. On June 13th, 1996, Samunder Singh, Station House Officer, Police Station Sadar, Bahadurgarh-Investigator (PW-13) reached Crl. Appeal No. 639-DB of 2000. 3 the village. He was informed by the respectables of the village that Sandeep was murdered by accused-appellant. A search was made. On June 14th, 1996 when Samunder Singh (PW-13) was present at the Bus Stand of village Majri, Satbir Singh, complainant (PW-12) and Rajesh produced accused- appellant before him. The accused was interrogated. He made disclosure statement (Exhibit PN) to the effect that on June 10th, 1996 at about 2.30 PM he and Sandeep had gone to Gurgaon canal near their village for taking bath. While taking bath, Sandeep was naked. He asked Sandeep as to why he was naked. Thereupon, Sandeep abused him. Sandeep came out of the canal. He also followed him. In a fit of anger, he (Medhavi Parkash) pressed his neck, and lifted him on his back. When he put him down from his back, Sandeep breathed his last. Out of fear and to screen the evidence, he tied his neck and the wrist with the pant and threw him in the canal. The shirt worn by Sandeep was kept concealed by him in the water tank of the tubewell near the canal and could get the same recovered. In pursuance to the disclosure statement, accused-appellant led the Police party to the disclosed place and got recovered the shirt (Exhibit P-1) which was taken into possession vide recovery memorandum (Exhibit PO). 4. On June 17th, 1996, Mukesh (PW-7) native of the same village to which the deceased and the accused-appellant belonged, made his statement to the Police that on June 10th, 1996 while he was returning in his four-wheeler from Faridabad to his village, he noticed the deceased and the accused-appellant taking bath in the canal. He stopped for a while and asked the duo as to whether they wanted to go with him to the village or not but both of them asked him that they would come after some time. Crl. Appeal No. 639-DB of 2000. 4 5. On completion of investigation and other formalities, the accused was arraigned for trial. 6. Charge, in respect of commission of offence punishable under Section 302 IPC was framed against the accused. He pleaded not guilty and claimed trial. 7. In support of its case, prosecution examined thirteen witnesses in all viz. Dr. Hariom Manchanda (PW-1), Raj Kumar Patwari (PW-2), Parmanand Patwari (PW-3), Jyoti Ram, Assistant Sub-Inspector (PW-4), Jai Kishan, Head Constable (PW-5), Hargian Singh (PW-6), Mukesh (PW-7), Ramesh (PW-8), Balwant Singh (PW-9), Suresh (PW-10), Bimla (PW-11), Satbir Singh (PW-12) and Samunder Singh, Inspector (PW- 13). 8. In his examination recorded under Section 313 of the Code of Criminal Procedure, the accused denied the allegations and pleaded that he was implicated falsely. He added that Father of Satbir was serving and residing at Karnal. Satbir was having illicit relations with Bimla, mother of Sandeep. Sandeep had seen both of them in some objectionable condition and threatened them to disclose the truth to his father. In order to get rid of him, Satbir murdered Sandeep. 9 There is no direct evidence against the accused- appellant. The circumstances relied upon by the prosecution and the learned trial Judge are as follows:- (i) that the accused-appellant and the deceased had gone to Gurgaon canal to wash the Baan and thereafter deceased was never seen alive; Crl. Appeal No. 639-DB of 2000. 5 (ii) that the dead body of the deceased was found floating in the canal; (iii) that the accused made extra judicial confession before Satbir Singh (PW-12) on June 14th, 1996; (iv) that Sandeep was lastly seen in the company of the accused-appellant by Mukesh (PW-7) and; (v) that recovery of shirt was effected at the instance of the accused-appellant. 10. It is well established by now that in a case depending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain to prove the guilt of the accused beyond all reasonable doubts. The circumstances so proved must be consistent only with hypothesis of the guilt of the accused. Let the whole case be tested on the aforesaid touchstone. The evidence of last seen consists of Mukesh (PW-7) and Bimla (PW-11). Bimla (PW-11) has deposed that accused and the deceased had gone from the house to the canal for washing the Baan and to take bath on June 10th, 1996 at about 4.00 PM and thereafter deceased did not return. Mukesh (PW-7) has stated that on June 10th, 1996 he was on his way from Faridabad to his village in the four- wheeler. On reaching Gurgaon canal, he witnessed Sandeep and the accused taking bath in the canal. He stopped his vehicle and asked them to accompany him, if they wanted, but they did not. If the evidence of these witnesses is read in between the lines, it suggests that the entire story has Crl. Appeal No. 639-DB of 2000. 6 been cooked up. Mukesh (PW-7) belongs to the same village to which the accused and the deceased belonged. The dead body of the deceased was found floating in the canal on June 11th, 1996, meaning thereby, on June 11th, 1996 or the next day, Mukesh must have come to know that Sandeep had died. In due course and as natural human conduct, the witness would have disclosed on June 12th, 1996 to the members of the family of the deceased or to the Police or to some other person that he had seen the deceased and the accused together on June 10th, 1996 while taking bath in the Gurgaon canal. This would have been his natural reaction to the whole situation when he had come to know that death of the deceased had taken place on June 11th, 1996. For the first time, per the story of the prosecution, he informed the Police on June 17th, 1996 that he witnessed the deceased and the accused-appellant taking bath in the canal on June 10th, 1996. In his cross-examination, he has stated that Police never recorded his statement. Clearly, it is absolutely false and frivolous on the face of it that this witness Mukesh ever saw Sandeep (deceased) and the accused together taking bath on June 10th, 1996 in the Gurgaon canal. His conduct is wholly unnatural indicating that he is a witness introduced later on. The statement of mother Bimla is also not believable because Satbir Singh (PW-12) made statement before the Police (Exhibit PF) that Sandeep had returned to the village after washing the Baan and slept in the Baithak of the father of the accused and went out thereafter at 7.30 PM from there. The statement of Bimla is belied by the statement of Satbir. According to Bimla the deceased and the accused had left her huose at 4 PM and thereafter Sandeep did not return, whereas, Satbir has stated that the accused and the deceased had gone to the canal at Crl. Appeal No. 639-DB of 2000. 7 about 2/2.30 PM. Satbir came and slept in the Baithak of the father of the accused-appellant and thereafter had gone somewhere at 7.30 PM. In view of this important variance, the credence of last seen gets demolished. It has been well settled by now that evidence of last seen requires further corroboration by independent material particulars and in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt against the accused. In view of this, the story of last seen is not substantiated and is therefore, repelled. 11. The next circumstance pressed into service is extra- judicial confessional made before Satbir Singh (PW-12) and Rajesh Kumar. According to Samunder Singh, Inspector (PW-13), he came to know on June 13th, 1996 that the accused-appellant had murdered the deceased on the basis of hearsay evidence. It was for the first time on June 14th, 1996 that Medhavi Parkash (accused-appellant) was produced by Satbir Singh (PW-12) and he made disclosure statement (Exhibit PN). Why should the accused make extra-judicial confession before Satbir Singh ? A criminal would not make extra-judicial confession simply for the heck of it. It is only in rare circumstances that a criminal would confess his guilt of murder. What help could be rendered by Satbir Singh to the accused ? He was the complainant. Why the accused should confess before him ? These pertinent questions have gone un-explained. It is rather sad thing that heinous crimes like murder are committed and our investigating agencies, instead of making use of scientific aids and criminalistics, make short work by setting up extra-judicial confession which has been repeatedly held to be evidence Crl. Appeal No. 639-DB of 2000. 8 of weak nature. There could be no plausible reason for the accused to make extra-judicial confession before Satbir Singh in this case. It appears that this evidence of extra-judicial confession before Satbir Singh is manufactured one so, it fails to inspire confidence. 12. Another circumstance is the recovery of the shirt at the instance of the accused-appellant. According to prosecution, the accused- appellant concealed shirt in a small tank of a tubewell situated nearby the canal. The recovery was got effected on June 14th, 1996, that is, after 4 days of the occurrence. It is not believable that owner or anybody else would not have seen the shirt for 4 days particularly from a place which was accessible to all. No independent witness was joined nor the owner of the tubewell was examined. It is unbelievable that a person who commits a murder and throws the dead body and chappal of the deceased in flowing water would keep the shirt of the deceased in a tank of a tubewell nearby the spot. It defies imagination to accept that this was what the accused had done. Body in the river but shirt in a water tank of a tubewell. Wouldn't the accused- appellant also throw the shirt in the canal to let the same disappear along with the dead body. This Court cannot accept the evidence of recovery of a shirt as a piece of substantive circumstantial evidence against the accused- appellant. 13. Thus, the prosecution evidence falls woefully short of connecting the accused-appellant with the crime. It needs to be added here that in a case dependent on circumstantial evidence, a complete chain of circumstances is required. One circumstance would be just one knot but not a complete chain of circumstances. No complete chain of circumstances has Crl. Appeal No. 639-DB of 2000. 9 been proved in this case. 14. Learned trial Judge fell in error when he held the accused-appellant guilty and convicted him. There was no sufficient or reliable evidence to bring the guilt home. 15. For the reasons aforesaid, appeal is accepted. As a result thereof, the conviction and sentence passed by learned trial Judge is set aside. Consequently, the accused appellant is acquitted of the charge, under which, he was convicted and he be set at liberty forthwith, if not required in any other case. (NAWAB SINGH) (K.S. GAREWAL) JUDGE JUDGE 11.8.2009. SN