Criminal Appeal No.130-DB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.130-DB of 1998 Date of decision: February 13 ,2008 1. Rattan Lal son of Ram Chander son of Beli Ram, resident of Village Dahar,District Panipat. 2. Sandeep @ Soni son of Mukand Lal 3. Rinku @ Sandeep son of Sham Sunder Both residents of Safidon,District Jind. ...........appellants Versus State of Punjab ........respondent CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE SHAM SUNDER Present: Mr. Vinod Ghai,Advocate with Mr.Ashit Malik, Advocate,for the appellants. Mr.Deepak Girotra,AAG, Haryana with Mr.Arshwinder Singh, Advocate, for the complainant. Sham Sunder,J. This appeal is directed against the judgment of conviction dated 27.2.1998 and the order of sentence dated 28.2.1998, rendered by the Additional Sessions Judge (I), Panipat, vide which, it convicted the accused for the offence punishable under Section 302 read with section 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life each, and to pay a fine of Rs.5000/-each, and in default of payment of fine, to further undergo R.I. for two years each. However, the trial court acquitted Criminal Appeal No.130-DB of 1998 2 Sunita, accused. 2. The law was set in motion by Balwan Singh son of Hari Singh, by making a statement, Ex.PA, on 26.12.1996 before the SHO, Police Station, Israna, to the effect that he was a resident of Village Dahar and an agriculturist. He was having two brothers and one sister. All of them were married. They were also cultivating their lands separately. Balwan Singh and his brothers were residing in their houses, which were constructed in their field, which was known as “field of buffalo” . These houses were at a distance of 4 to 5 killas, from the Village. Hari Singh, father of Balwan Singh, was residing with him. 3. On 25.12.1996, Rattan Singh, younger brother of Balwan Singh,aged about 25/26 years, at about 10/11 a.m., on his motor- cycle, Hero Honda, left the house telling the other members of the family that he was going to market at Panipat. He did not come back at night. On 26.12.1996, at about 7.30 a.m. Ganga Ram,Chowkidar told Balwan Singh that his brother Rattan Singh was lying dead, in the lane, near the house of Chandgi son of Har Phul, resident of Dahar. Thereafter, Balwan Singh, came to that place, and found that the dead body of his brother, Rattan Singh, was lying there. Half of his dead body was under a buggi ( cart). The dead body was completely smeared with blood. Motor cycle was also standing nearby. Balwan Singh entertained a suspicion that some unknown persons had committed the murder of his brother,Rattan Singh, and left his dead body at the place aforesaid. It was further stated by him in Ex.PA, that they had got no enmity with any body. After leaving Ganga Ram, Chowkidar and Lal Chand son of Munshi Ram to safeguard the dead body, Balwan Singh started for lodging the report, when at Bus Stand,Dahar,SHO, Police Station,Israna Criminal Appeal No.130-DB of 1998 3 met him. Ex.PA, referred to hereinbefore was read over and explained to him and after admitting the same to be correct, he signed it. Endorsement Ex.PA/1 was appended thereon, on the basis whereof, the FIR,Ex.PA/2 was registered. 4. Thereafter, Hari Singh,SI,SHO,Police Station,Israna, along with the complainant went to the spot in the area of Dahar,where the dead body of Rattan Singh, was lying.He requisitioned the dog squad at the spot, and called for a photographer. On the arrival of the dog squad, a dog was given the sniff of the place, where the dead body was lying, and after smell the dog went upto the Dakot Mohalla,near the house of Rattan Lal,accused. This process was repeated twice or thrice by the dog. The photographer also arrived at the spot, and he took some photographs of the place, where the dead body was lying. Rough site plan, Ex.PJ, of the place, was prepared by SI Hari Singh. Inquest report, Ex.PF/1, was prepared. The statements of Ganga Ram,Chowkidar, and Lal Chand were recorded. Hari Singh,SI, also scribed application Ex.PF, for post mortem examination of the dead body of Rattan Singh. The dead body of Rattan Singh along with the application, Ex.PF, was sent to Civil Hospital, for conducting post mortem examination. Motor cycle lying near the dead body was taken into possession vide memo, Ex.PB.. The statements of Balwan Singh and Constable Mehar Singh, were recorded. In the meantime,D.S.P. Of the Halqa, also arrived at the scene of crime. Thereafter, Hari Singh,SI, along with the D.S.P. proceeded towards other villages for investigation of another murder case. After getting free therefrom, Hari Singh, SI, along with other police officials, reached Bus Stand,Israna, where Constable Rajbir Singh and HC Dharam Singh produced before him, a parcel, containing the Criminal Appeal No.130-DB of 1998 4 belongings of the deceased and the post mortem report. Those were taken into possession, vide memo, Ex.PK. Thereafter Hari Singh went to the Bus Stand of village Dahar, where Hukmi,PW,met him, and he recorded his statement. Thereafter, Hari Singh,SI went to the house of Rattan Lal,accused, and on the way, he associated Jai Bhagwan and Dharam Pal,prosecution witnesses, in the investigation of this case.None of the accused was present, in the house, of Rattan Lal. A trail of blood from the gate of the house of Rattan Lal to the room,where the victim was killed, was found, by Hari Singh, Sub Inspector. On account of this reason, the services of the photographer were requisitioned. Jai Kumar,Photographer, came to the place of occurrence, and took four snaps of the house of Rattan Lal. Hari Singh,SI searched the accused, but to no effect. On return to the Police Station, he deposited the case property with the MHC in intact position. 5. On 29.12.1996, the accused were searched at various places, including Panipat and Safidon. In Sabzi Mandi,Panipat, SI Hari Singh received a secret information to the effect that accused, Rattan Lal,Sandeep alias Soni and Sandeep alias Rinku had approached Rajinder Singh,Ex-Sarpanch, Risalu. On receipt of this information, he went towards Gohana road and there Rajinder Singh,Ex-Sarpanch, produced before him Rattan Lal, Sandeep alias Soni and Sandeep alias Rinku,accused. They were arrested. Hari Singh, SI, interrogated them. Sandeep alias Rinku made a disclosure statement, Ex.PD, that he had concealed a knife, and a pant, both blood stained, in his residential house, at Safidon underneath a box, in a room, and but for him, no body knew about the same, and that he could get the same recovered. Disclosure statement, Ex.PD ,was signed by him and attested by the witnesses. Criminal Appeal No.130-DB of 1998 5 Thereafter,accused Sandeep alias Soni made a disclosure statement that he had concealed a quilt underneath a cot, in the heap of other quilts, in a store, in the house of Rattan Lal and but for him, no body knew about the same and that he could get the same recovered. Disclosure statement,Ex.PC, was reduced into writing, and the same was signed by the accused and attested by Rajinder Singh,Ex-Sarpanch and HC Bachan Singh. 6. On 30.12.1996, the accused were taken to village Dahar and there Sandeep alias Soni got recovered a quilt from the disclosed place. The quilt was converted into a parcel and sealed with the seal, bearing impression 'V.S.', which after use was handed over to Dharm Pal. The same was taken into possession vide memo, Ex.PC/1.Rough site plan of the place of recovery, Ex.PC/2, was prepared. On return to the Police Station, case property was deposited with the M HC with its seals intact. 7. On 31.12.1996 Sandeep @ Rinku, accused, was taken to Bus Stand,Israna, where Hari Singh,SI received a secret information regarding, Sunita, alias Sangeeta,accused, and accordingly, he arrested her from her residential house in Village Dahar. Therafter, Sandeep alias Rinku,accused was taken to Safidon and from the Bus Stand, Safidon, the accused led the police party to the residential house of his grand father i.e the place disclosed by him vide his disclosure statement, Ex.PD, and he got recovered Ex.P18, knife, and pant Ex.P.19, from the place disclosed, in the disclosure statement. Hari Singh,SI prepared the sketch of the knife Ex.PD/1. Both the knife and the pant were stained with blood. Separate sealed parcels were prepared, at the spot, and both the parcels were sealed with the seal bearing impression 'H.S.' and taken into possession vide memo Ex.PD/2 Hari Singh,SI also prepared rough Criminal Appeal No.130-DB of 1998 6 site plan, Ex.PD/3, of the place of recovery. He also recorded the statements of Dharam Pal and Jai Bhagwan. On return to the Police Station, the sealed parcels were deposited with the MHC with seals intact. During the course of investigation, the statements of HC Prem Singh,Constable, Satbir Singh and Constable Ranbir Singh were recorded. 8. Prem Singh,SI also conducted investigation, in this case, partly and took into possession the photographs and negatives. He also recorded the statements of Karam Vir and Jai Kumar,Photographer. After the completion of investigation, the accused were challaned. 9. 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 case was received by commitment, charge under Section 302 read with section 34 of the Indian Penal Code was framed against the accused. It was read over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 10. The prosecution, in support of its case, examined, Balwan Singh, complainant,PW1, who lodged the FIR, Hukmi,PW2, who on 25.12.1996 at about 10 p.m., noticed the accused near Radha Krishan Mandir, Village Dahar, and overheard them, uttering that they had committed the blunder, by causing knife blows to Kala. She further stated that on the evening of 26.12.1996, she came to know that Rattan Singh alias Kala, had been killed with knife blows and made a statement before the police, Dr.S.S.Kalra, Medical Officer, General Hospital,Panipat,PW3 conducted post mortem examination on the dead body of Rattan Singh, Karamvir Singh, PW4, Photographer took the photographs of the dead body, which Criminal Appeal No.130-DB of 1998 7 are Ex.P1 to Ex.P4 and negatives thereof are Ex.P5 to Ex.P8, Jai Kumar, PW5, another Photographer, visited Village Dahar and took snaps Ex.P9 to Ex.P12 of the house of Rattan Lal and their negatives are Ex.P13 to Ex.P16,Rajinder Singh ,PW6, stated that Rattan Lal, his brother-in-law, Sandeep alias Soni and friend of Soni, Sandeep alias Rinku, accused came to him at his house on 29.12.1996 at 8 a.m. and made extra judicial confession that they committed the murder of Rattan Singh. He also produced Rattan Lal,Soni and Rinku, accused, before the police, Dharam Pal,PW7, was associated with the police, in the investigation, of this case and in his presence accused Soni got recovered the quilt and Sandeep alias Rinku got recovered knife and pant, in pursuance of their disclosure statements, S.I. Hari Singh, SHO, Police Station,Sadar,Panipat,PW8, is the Investigating Officer , Ramesh Malik, PW9,prepared the scaled sit e plan Ex.PL,of the place where the crime was allegedly committed. The Additional Public Prosecutor, tendered into evidence affidavit Ex.PM of Constable Ranbir Singh, He also tendered into evidence Ex.PN, and Ex.PN/1, reports of the Forensic Science Laboratory and closed the same. 11. The statements of the accused, under Section 313 Cr.P.C. were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded innocence. It was further stated by them that the witnesses of the prosecution had deposed falsely. Accused Sandeep alias Rinku, in his statement, also stated that he was barber by caste and used to reside with his parents at Hansi. The accused, however, did not lead any evidence in defence. 12. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the Criminal Appeal No.130-DB of 1998 8 evidence,on record, the trial Court, convicted and sentenced the accused as stated above. 13. Feeling aggrieved, against the judgment of conviction and the order of sentence, referred to above, the instant appeal was filed by the appellants/accused. 14. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 15. The Counsel for the appellants, contended that the trial Court erred in relying upon the incredible evidence, and thereby recording conviction and awarding sentence to the accused. He further contended that there was no eye-witness to the occurrence, and the case of the prosecution was solely based on the circumstantial evidence. He further contended that no extra judicial confession was made by the accused, before Rajinder Singh. He further contended that even the evidence of Rajinder Singh is not trust-worthy. He further contended that no contemporaneous document with regard to the finding of trail of blood from the gate of the house of Rattan Singh to the interior of the room of his house, as also that the dog after sniffing went upto the house of Rattan Lal, was prepared,nor any witness was examined, in respect thereof, and, as such, the evidence of the Investigating Officer was not reliable, in this regard. He also contended that the evidence of disclosure statements and the consequent recovery was fabricated.He also contended that the evidence of Hukmi,who allegedly saw the two accused Rinku and Sandeep alias Soni talking to each other, that they allegedly caused injuries with knife to Rattan Singh, was also not reliable. He further contended that the judgment of the trial Court was liable to be set aside. 16. On the other hand, the Counsel for the respondent Criminal Appeal No.130-DB of 1998 9 contended that all the circumstances were proved through cogent and convincing evidence, and the trial Court rightly relied upon the same, to hold the accused guilty. He supported the judgment of conviction and the order of sentence,rendered by the trial Court. 17. 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 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 : Criminal Appeal No.130-DB of 1998 10 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 all human probabilities, the crime was committed by the accused and none else; and 4. The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis, than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.” Keeping in view the principle of law, laid down, in the aforesaid cases, let us see, as to whether, the prosecution was able to prove its case, against the accused, beyond a reasonable doubt, and whether the finding of guilt recorded by the trial Court, is based on the correct appreciation and analysis of the evidence. 18. The first circumstance, on which, reliance was placed by the prosecution, was that Sandeep alias soni and Rinku alias Sandeep accused were seen on 25.12.1996, at about 10.00 p.m. by Hukmi, PW2,resident of Dahar, near Radha Krishan Mandir,uttering that they had committed the blunder by causing knife blows to Kala, also known by the name of Rattan Singh. The evidence of Criminal Appeal No.130-DB of 1998 11 Hukmi,PW2, in this regard is not reliable and credit-worthy, as would be discussed, hereinafter. Dr.S.S. Kalra (PW3), who conducted post mortem examination on the dead body of the deceased on 26.12.1996 at 2.30 p.m. in his cross-examination dated 18.2.1998 stated that the injuries received by the deceased could have been caused to him, two to three hours after 10 p.m. ( wrongly typed as 10 a.m.) on the night intervening 25/26-12-96. He further stated that the time that lapsed between the injuries and death was 1 to 4 hours. He further stated that the probable duration between the death of Rattan Singh and the post mortem examination was between 12 to 36 hours. From the statement of Dr.S.S.Kalra (PW3), it can be concluded that the injuries were caused on the person of Rattan Singh, deceased, between 12 a.m. to 1.00 a.m. ( at night) on 26.12.1996. According to his statement, he would have died between 1/2a.m. to 4/5a.m. on 26.12.1996. If the injuries were caused on the person of the deceased between 12 a.m. to 1 a.m. on the night of 26.12.1996, then how Hukmi could hear the exchange of talk between Soni, and Rinku accused at 10 p.m. on 25.12.1996 that they had caused injuries, on the person of Kala and committed a 'blunder'. This circumstance casts a cloud of doubt, on his statement. During the course of cross-examination, it was admitted by Hukmi that, by the time, he left for his house, from Panipat, the darkness had spread all around. He further stated during the course of cross-examination, that it was already dark, when he left the bus stand of his village, on way to his house. During the course of further cross-examination, it was stated by him that his house is situated in the village towards Panipat side, whereas the house of accused , Rattan Lal, is situated in other locality (pana). He further stated, in his cross-examination, that about more than 250 houses Criminal Appeal No.130-DB of 1998 12 intervened between his house and the house of Rattan Lal, accused. He further admitted during the course of cross-examination that he had no business to go to the house of accused, Rattan Lal. He stated that Soni the brother-in-law of accused, Rattan Lal, is not a resident of his village,though he resided with accused, Rattan Lal. He further admitted that he had no dealings, whatsoever, with Sandeep alias Soni, brother-in-law, of accused,Rattan Lal. He further admitted that, however, he had a talk with him only once,about 2/3 months prior to the death of Rattan Singh,deceased. Since the accused and Hukmi and their families were not on visiting terms, with each other, and in between the house of Hukmi, situated in other locality, and the house of Rattan Lal, 250 houses intervened, what for he ( Hukmi) went towards Radha Krishan Mandir, not shown to be falling on way to his house, at that odd hour of the night is not known. Even otherwise, it was a dark night. In a dark night, it was not possible for a person to identify two other persons, who were not properly known to him,from a distance of 10 yards. There was no evidence, on record, that near the place, where Rinku and Soni were allegedly found standing, there was an electric light. The identification of both these persons, in that dark night, by Hukmi, aged about 52 years, was thus, not possible. Had he noticed both these accused, uttering that they had caused injuries, on the person of Kala, also known as Rattan Singh, he would have certainly, gone to the house of the brother of Rattan Singh ,namely, Balwan Singh, first informant, to tell him, that he had heard Rinku and Soni,accused talking that they had caused injuries, on the person of Rattan Singh, immediately, after he heard the same. Even if, it is assumed that it was late at night at that time, and that he did not prefer to go to the house of the brother of Rattan Criminal Appeal No.130-DB of 1998 13 Singh, after hearing the alleged utterance of both the accused, referred to above, the first thing he was expected to have done in the morning, was to go to his house, to tell him that these persons were talking, in the aforesaid manner. Balwan Singh, brother of Rattan Singh, made a statement that his brother was missing before the police on 26.12.1996 at about 8.40 a.m. on the basis whereof, the FIR was recorded. He did not suspect any body with regard to the causing of death of his brother,Rattan Singh, nor did he claim any body responsible for causing the death of his brother, Rattan Singh. In villages, no incident goes unnoticed on account of the small size of the same and the people almost know each other. Hukmi did not go to Balwan Singh, brother of Rattan Singh, on the morning of 26.12.1996 to tell him, with regard to the utterance, he allegedly heard between the two accused, referred to above.Not only this, he was not even present at the time of preparation of the inquest report of the dead body of Rattan Singh. He also did not make statement before Hari Singh, S.I. immediately after the inquest proceedings.He allegedly made a statement before Hari Singh,S.I. in the evening on 26.121996. Why she kept mum for such a long period is not known? Even otherwise, if Rinku and Soni had done such a thing, they would have not talked about the same, immediately, after the alleged occurrence, within the hearing of anybody, so as to avoid their detection. The evidence of this witness was not reliable on account of the aforesaid circumstances. The trial Court, was wrong, in placing reliance, on the evidence of this witness. It appears that such evidence was created by the police, just with a view to connect the accused, with the present case. 19. The next circumstance, on which reliance was placed by the prosecution, was to the effect, that trail of blood was seen from Criminal Appeal No.130-DB of 1998 14 the gate of the house of Rattan Lal, to the inner portion of a room of his house. In this regard, there is the sole statement of Hari Singh,SI,PW8. No contemporaneous document was prepared by Hari Singh,SI, when he allegedly saw the trail of blood, going from the gate of the house of Rattan Lal, accused to the inner portion of a room of his house. Balwan Singh, complainant, who was allegedly present with the investigating officer at that time, did not state even a single word regarding the existence of trail of blood.No other independent witness despite availability was examined to substantiate the alleged circumstance of existence of trail of blood. Jai Kumar, photographer, who was summoned by the Investigating Officer, to take the photographs of that trail of blood,did not state even a single word, that he saw the said trail of blood, going from the gate of the house of Rattan Lal,accused, to the inner portion of a room of his house. He only stated that he took the photographs Ex.P9 to Ex.P12.The