Criminal Appeal No.32-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Sheodan and another APPELLANTS VERSUS The State of Haryana RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present:- Shri Baldev Singh, Senior Advocate with Shri Deepinder Singh, Advocate for the appellants. Shri S.S.Randhawa, Additional A.G. Haryana. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 28.11.2000/ 30.11.2000 of the learned Sessions Judge, Faridabad whereby he convicted Sheodan son of Samundri and Udai Singh (Udham Singh) son of Samundri under Section 302 read with Section 34 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs.1000/- each, in default to further undergo RI for six months. They were also convicted under Section 201 I.P.C. and sentenced to undergo RI for 2 years and to pay a fine of Rs.500/- each, in default to further undergo RI for 3 months. One of the accused Ramesh has been declared Criminal Appeal No.32-DB of 2001 -2- a proclaimed offender and has not faced trial till date. The case of the prosecution is unfolded by the statement of Malkhan Ex.PD given to Azad Singh SI at Kithwari Bridge. Malkhan stated that he is a resident of Suzwari and is a cultivator by profession. He has three sons and five daughters. The youngest of them is Virender alias Vicky aged 12/13 years who is studying in Class-III. On 9.2.1998 at about 3 p.m. his daughters Omwati, Mohar Shree and his son Virender had gone to the jungle of Uhar in the fields of Bhoja to bring grass. His daughters returned to the house after cutting grass, while his son Virender went to the fields of Dharma to catch a pigeon which had not returned to their house. On 12.2.1998 at about 4 p.m. his wife Kartari and daughter Omwati went to the field of Ram Narayan in search of their son and found that bundles of dry fodder were lying near the Kotha of the tubewell. There were 3-4 bundles of fodder lying separately. On removing the bundles they found the dead-body of their son stained with blood, having injuries on his neck and chest. Injuries were caused with sharp edged weapon. About a month back Omi son of Dharma had given a beating to his son Virender because of Virender plucking a sugarcane plant. Malkhan further stated that Omi and Sheelu sons of Dharma had murdered his son Virender and concealed the dead-body in the bundles. On the basis of this statement F.I.R. Ex.PD/2 was recorded on 13.2.1998 at 1.45 a.m. Special report reached the Illaqa Magistrate on the same day at 5 a.m. Another statement Ex.PD/3 was recorded by Malkhan on 11.9.1998 wherein he stated that his son Vicky alias Virender had gone to the fields on 9.2.1998 to fetch grass along with his sisters. The girls returned, but Vicky stayed in the fields for catching a pigeon which had gone away. Vicky did not return. On 13.2.1998 when they were searching Vicky, the dead-body of Vicky was found in the heap of bundles of Jawar situated in the field of Ram Narain near the tubewell room. Malkhan kept searching for the murderers of his son till 11.9.1998 Criminal Appeal No.32-DB of 2001 -3- and now he had come to know that the murder of Vicky was caused by Ramesh son of Narain, Sheodan and Udai sons of Sundri with a screw driver at the behest of Ramesh. The real murderers of his son Vicky alias Virender are Ramesh son of Narain, Sheodan and Udai sons of Sundri. This statement Ex.PD/3 was recorded by SI Ranjit Singh, SI CIA, Faridabad on 11.9.1998. The prosecution to prove its case, brought into the witness-box Dr.B.L.Chhimpa PW-1, Ramphal Patwari PW-2, HC Balwan Singh PW-3, SI Bhagat Singh PW-4, SI Azad Singh PW-5, Malkhan Singh PW-6, Kartari Devi PW-7, Satbir PW-8, Vijay Pal PW-9, Constable Ram Babu PW-10, Mangal PW- 11, Prabhu Dayal PW-12 and SI Ranjit Singh PW-13. Learned counsel for the appellants has argued, that F.I.R. Ex.PD/2 clearly shows that there is a motive against Omi and Sheelu sons of Dharma. As the F.I.R. Ex.PD/2, the occurrence had taken place on 9.2.1998. The second statement Ex.PD/3 was recorded by Malkhan Singh PW-6 on 11.9.1998 and the name of the appellants cropped up for the first time after a gap of seven months. Mangal PW-11 who is supposed to have given the information to Malkhan Singh PW-6 about the murder of his son stayed at Village Raipur which is 50 kms. away from the place of occurrence. He stated that he saw the accused coming out of the Sarson fields with blood-stained weapon in their hands. For 8 days he did not disclose this to Malkhan Singh PW-6 father of the deceased. The disclosing of the information to Malkhan Singh PW-6 by Mangal PW-11 does not come in the statement Ex.PD/3 of Malkhan Singh PW-6. Malkhan Singh PW-6 stated this for the first time after a gap of seven months. The evidence of both Malkhan Singh PW-6 and Mangal PW-11 the two star-witnesses of the prosecution cannot be relied upon. These statements have been fabricated only to falsely implicate the appellants. The only piece of evidence of identification of the deceased is the Criminal Appeal No.32-DB of 2001 -4- Tabeej Ex.P1. No reference has been made about the Tabeej in both the statements of Malkhan Singh i.e. Ex.PD/2 and Ex.PD/3. In fact, this Tabeej was never found, but was falsely added as a piece of evidence by the Investigating Officer at a later stage. The Panchayats which had met as per the statement of Satbir PW-8 , Vijay Pal PW-9 and Prabhu Dayal PW-12 admitted of his guilt when the Panchayat met on 4.10.1998. Prabhu Dayal PW-12 has stated that all the three persons i.e. two appellants Sheodan, Udai Singh and Ramesh(P.O.) admitted regarding their guilt. Strangely SI Ranjit Singh PW-13 though present in both the panchayats, where the appellants admitted their guilt on 4.7.1998 and 4.10.1998, did not arrest them at the spot, but arrested them on 29.12.1998. In fact, the Investigating Officer was totally in the dark as to who had committed the murder. Learned counsel for the State has argued that the last seen evidence as propounded by Mangal PW-11 is truthful, cogent and inspires confidence. He saw the appellants along with Ramesh(P.O.) with the blood-stained weapon. It is after 8 days he came to know about the murder of Virender alias Vicky son of Malkhan Singh PW-6. It is thereafter he informed Malkhan Singh PW-6 of his seeing the appellants along with Ramesh(P.O.) coming out of the jungle. Malkhan Singh PW-6 then informed the police. It was for the police to take action immediately, but waited so long, as they wanted to be sure as to who had committed the murder. The panchayats which met on the asking of Satbir PW-8, Vijay Pal PW-9 and Prabhu Dayal PW-12 wanted to settle the matter. The Investigating Officer SI Ranjit Singh PW-13 was present as a spectator, but not as a policeman. Tabeej Ex.P1 was recovered from the appellants which was of the deceased. This clearly links the deceased with the appellants. We have heard the learned counsel for the parties and perused the Criminal Appeal No.32-DB of 2001 -5- record with their assistance. In F.I.R. Ex.PD/2 dated 13.2.1998 the names of Omi son of Dharma and Sheelu son of Dharma are mentioned as being the assassins of deceased Virender alias Vicky. On 11.9.1998 complainant Malkhan Singh PW-6 made another statement Ex.PD/3, wherein he stated that it was Ramesh son of Narain (P.O.) and Sheodan and Uday sons of Sundari who had committed the murder of his son Virinder alias Vicky. The second statement was made after a gap of 7 months. The prosecution did not have answer to this glaring contradiction. Mangal PW-11 has stated in his testimony before the Court, that on 9.2.1998 on the day of occurrence he saw Ramesh(P.O.), Sheodan and Uday coming out from the Sarson fields. Ramesh had an iron rod in his hand. They got perplexed on seeing him. Appellants were having blood stains on their clothes. After 8 days i.e. on 17.2.1998 he came to know that Virender son of Malkhan had been murdered. When he went to pay his condolence, to the house of Malkhan Singh PW-6, he narrated this incident of seeing the appellants. He has further stated that he did not tell anything to the police. In his cross-examination he has completely contradicted the date of his going to the police and telling Malkhan Singh PW-6. He has stated in his cross-examination, that on 9.2.1998 Malkhan Singh PW-6 had taken him to the police and the police recorded his statement regarding what he had seen. He has categorically stated that he did not make any statement to the police except on 9.2.1998. The learned Public Prosecutor in the trial Court had given a statement that no statement of this witness (PW-11) was recorded on 9.2.1998, but his statement was recorded only on 16.2.1998. When we went through the record, we found this to be factually wrong. The statement Ex.DD of Mangal PW-11 under Section 161 Cr.P.C. was neither recorded on 9.2.1998, nor on 16.2.1998, but on 16.9.1998, i.e. after a gap of 7 months of the occurrence. Mangal PW-11 is a very important witness of the prosecution. He has Criminal Appeal No.32-DB of 2001 -6- not stated anything as to what he was doing in Village Suzwari on the day of occurrence when his own Village Raipur was 50 kms. away. From the statement it comes out that this witness is an unreliable witness. He does not give any corroboration either to the F.I.R. Ex.PD/2 or to his own statement. He is a witness who has been introduced at a later date. The evidence of this witness is unreliable and fabricated. The motive for the commission of the offence was against Omi and Sheelu sons of Dharma. No motive has been spelt out against the appellants. Coming to the panchayats which had met as per the statements of Satbir PW-8, Vijay Pal PW-9 and Prabhu Dayal PW-12 qua the extra-judicial confession made by the appellants before the panchayats, the same do not inspire confidence. The Investigating Officer SI Ranjit Singh PW-13 has stated, that he was present in the panchayats when the appellants admitted their guilt, but strangely if he was present in the panchayats, he did not arrest the appellants. He has even stated that Ramesh (P.O.) was also present. Appellants Sheodan and Uday Singh were arrested on 29.12.1998 i.e. after a gap of 10 months of the occurrence. The Investigating Officer SI Ranjit Singh PW-13, did not have any business to be present in the panchayats. Any confession made in the panchayats is squarely hit by the provisions of Section 25 of the Indian Evidence Act. The third set of evidence put forward by the prosecution is the Tabeej (locket). Strangely this Tabeej was not noticed on the date of recovery of the body. Nothing has been mentioned of the Tabeej, which was allegedly worn by the deceased, in F.I.R. Ex.PD/2 and the statement Ex.PD/3 of Malkhan Singh PW-6. The Tabeej has also been introduced at a later stage. The prosecution has miserably failed to prove the guilt of the appellants. Criminal Appeal No.32-DB of 2001 -7- With the above discussion and observations, appellants are given the benefit of doubt and are acquitted of all the charges framed against them. Appeal of appellants is allowed. Their conviction and sentence is set aside. They be set free forthwith, if not wanted in any other case. ( MEHTAB S.GILL ) JUDGE (JITENDRA CHAUHAN) August 17, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO