CRIMINAL APPEAL NO. 312-DB OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: November 06, 2009. Parties Name Vinod Kumar ..APPELLANT VERSUS State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. Paramjeet Singh Brar, Advocate, for the appellant Mr. Ajay Kaushik, Advocate, for the appellant in Criminal Appeal No. 611-DB of 2007 Mr. J.S. Brar, Advocate, for the appellant in Criminal Appeal No. 317-DB of 2007. Mr. D.S. Brar, D.A.G., Punjab, for the respondent. JASBIR SINGH, J. ORDER. This order will dispose of Criminal Appeals No. 312-DB of 2007, 317-DB of 2007 and 611-DB of 2007, which have arisen out of FIR No. 133 dated August 26, 2005, registered at Police Station City Kotkapura. To dictate judgment, facts are being mentioned from Criminal Appeal No. 312-DB of 2007. CRIMINAL APPEAL NO. 312-DB OF 2007 -2- Appellants, namely, Vinod Kumar alias Banti, Pardeep Kumar alias Mintu and Gagandeep Singh alias Gaggi were accused of committing murder of Vijay Kumar son of Bhola Ram (PW2) on February 22, 2005, within the area of Police Station City Kotkapura. Vide the impugned judgment and order dated February 26, 2007, all the three were held guilty and convicted under Section 302/34 IPC. They were sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each with a default clause. Process of Criminal Law justice system was started at the instance of Bhola Ram (PW2), father of the deceased, at whose instance FIR Ex. PG was registered against the appellants on August 26, 2005. It is necessary to mention here that on the date of occurrence, i.e., February 22, 2005, statement of the above named witness (Ex. PB) was also recorded and on the basis of which only DDR No. 19 was recorded in Police Station City Kotkapura, no further action was taken thereon. PW2, after waiting for about two weeks, moved an application to Human Rights Commission and to the higher Police officials. On one such application, investigation was ordered. Investigation was conducted by SI Ranjit Singh (PW5) and on basis of the enquiry report, FIR mentioned above was recorded against the appellants. Case of the prosecution, as noticed by the trial Court in para No. 2 of the impugned judgment, reads thus: “Briefly stated, the prosecution version is that the complainant Bhola Ram, a Forest Officer, who is the father of Vijay Kumar, since deceased, moved an application before the Senior Superintendent of Police, Faridkot therein alleging that on 21- CRIMINAL APPEAL NO. 312-DB OF 2007 -3- 02-2005, Mintu (accused Pardeep Kumar) son of Prabh Dyal, took his son Vijay Kumar from his house at about 10.00 AM on the motor-cycle of his son. When Vijay Kumar did not return to the house till 7/8 P.M. That day, he went to the house of Prabh Dyal (father of accused Mintu) and asked him as to where his son (Mintu) was ? Prabh Dyal told him that his son Mintu was at home. When the complainant was just to leave the place, he saw Prabh Dyal's son (Mintu) coming from the front side. The complainant then asked the accused Mintu as to where Vijay Kumar was? The accused Mintu did not give any satisfactory reply. Next day, i.e., on 22.2.2005 the complainant Bhola Ram again visited Prabh Dyal's house and requested him to let him meet Mintu, but Prabh Dyal did not allow him. In the meantime, Mintu (accused) himself came out and assured the complainant that he would bring back his son Vijay Kumar and asked him to go to his house. Thereafter, the complainant's wife also went to Prabh Dyal's house, but came back with the same assurance. At about 10.00 A.M., the accused Mintu met Bhola Ram at Giani Zail Singh Market, Kotkapura and told him that Gaggi (accused Gagandeep Singh) is with Vijay Kumar. The complainant Bhola Ram then went to accused Gaggi's house, where Gaggi's father told him that Vijay Kumar and Gaggi had gone to Bhola Ram's house on the motorcycle. The complainant returned to his house, but his son Vijay Kumar was nowhere around. He again visited Giani Zail Singh Market, Kotkapura, where someone told him that Mintu and Gaggi CRIMINAL APPEAL NO. 312-DB OF 2007 -4- (accused Pardeep Kumar and Gagandeep Singh) have taken Vijay Kumnar to his house. The complainant again returned back and found the information to be false. Third time, when he visited accused Gaggi's house, he was told by Gaggi that Vijay Kumar has expired and his dead body is in the hospital. Thereupon, the complainant Bhola Ram went to the Hospital and found the dead body of his son Vijay Kumar there. The complainant smelt some thing fishy in the death of his son and that the truth had been concealed from him. On this written complaint/ application moved by the complainant, the Senior Superintendent of Police, Faridkot got the matter investigated from the SHO , Police Station City Kotkapura. During the course of investigation, it came forth that Vijay Kumar, since deceased, had been last seen alive in the company of the accused Pardeep Kumar alias Mintu, Gagandeep Singh alias Gaggi and Vinod Kumar alias Banti. PW Kulwant Singh, an RMP Doctor, told the police during the investigation, that the accused Mintu and Gaggi came to him and told him that their companion (Vijay Kumar) had taken liquor in excess and requested him to examine their companion. Accompanied by them, PW Kulwant Singh went at near the tube-well Kotha, and after examining Vijay Kumar he told them that their companion Vijay Kumar was already dead. Thereafter Vijay Kumar was rushed to Civil Hospital, Kotkapura by accused Gagandeep Singh alias Gaggi.” Vijay Kumar was declared brought dead by Dr. Raminder CRIMINAL APPEAL NO. 312-DB OF 2007 -5- Narang (PW8), who also sent information to the police (Ex. PP), on which he also got signatures of Gagandeep Singh, appellant – accused. On receipt of information, ASI Pawan Kumar (PW7) reached at the spot, prepared inquest report regarding dead body of Vijay Kumar and sent it for post- mortem examination to G.G.S. Medical College/ Hospital, Faridkot. Post- mortem on the dead body was conducted by Dr. Sarabjit Singh Sandhu (PW1) on February 23, 1995, at 8.30 AM. This witness noted that white froth was present at the nostrils of the deceased and found the following injuries on his person: “1. Lacerated wound measuring 3 x 2 cms was present on the dorsum of left big toe at its apex. There was no clotted blood. 2. Lacerated wound 1.5 x 1 cms was present on the first toe of left side of left foot. There was no clotted blood present.” On dissection injury was found superficial and post-mortem in nature. Stomach contained about 200 cc of fluid. Cause of death was kept pending / under observation subject to the report of the Chemical Examiner. Viscera was sent for examination and on receipt of the report, it was found to be a case of organic phosphorous poisoning, which was ante mortem and sufficient to cause death in the ordinary course of nature. Alcohol was also detected from the viscera as per Chemical Examiner report Ex. PA/4. It appears from the record that when no action was taken, PW2 Bhola Ram moved various applications, upon one of which , enquiry was instituted against the appellants. After receipt of the enquiry report, FIR Ex. PG was registered against the appellants on August 26, 2005. The Investigating Officer, SI Ranjit Singh recorded statements of the witnesses, went to the CRIMINAL APPEAL NO. 312-DB OF 2007 -6- spot, prepared rough site plan of the place, where Vijay Kumar was found dead. He also took into possession inquest report and other documents. Appellants- accused were arrested thereafter. On completion of investigation, final report was put in Court for trial. The appellants – accused were charge-sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced eight witnesses and also brought on record documentary evidence to prove its case. Thereafter, statements of the appellants – accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and pleaded false implication. They also led evidence in defence. The trial Court, on appraisal of evidence, found them guilty and accordingly convicted and sentenced them, as found mentioned in earlier part of this order. Counsel for the appellants have vehemently contended that the prosecution has failed to link the appellants with the alleged crime. By stating that it was a case of circumstantial evidence and the prosecution has failed to build up a complete chain of facts, on the basis of which appellants could have been punished. By making reference to the deposition made by Bhola Ram (PW2), father of the deceased, in Court and his earlier statement Ex. PB, an attempt was made to impress upon this Court that this witness has made lot of improvements in his subsequent statement, on account of which his testimony cannot be relied upon. It was further stated that Kulwant Singh (PW3) and Chhinda Singh (PW4) were telling lies. They were introduced subsequently with a view to rope in the appellants in the alleged crime. It was further argued that virtually there is no evidence against all the appellants. So far as bringing the deceased to CRIMINAL APPEAL NO. 312-DB OF 2007 -7- the Hospital by Gagandeep Singh alias Gaggi is concerned, it was argued that the said fact was wrongly relied upon by the Court below. There is no proof on record that Gagandeep Singh ever signed the document Ex. PP. It was further stated that Gagandeep Singh was not identified by Dr. Raminder Narang (PW8). Counsel for the appellants also argued that there was no motive with the appellants to commit murder of Vijay Kumar. It has further been stated that Pardeep Kumar alias Mintu was even declared innocent by the Investigating Officer during enquiry. So far as Vinod Kumar alias Banti is concerned, it was stated that his name did not figure even in the FIR. By stating as above, prayer has been made to allow the appeals and to acquit all the appellants of the charge framed against them. Prayer made has been vehemently opposed by the State counsel. He, by making reference to the deposition of the prosecution witnesses, argued that guilt of the appellants – accused was proved on record. The deceased was last seen with them and thereafter he never returned to his house alive. His dead body was brought to the Hospital by one of the appellants. It was further stated that the deceased and the appellants were seen together by Kulwant Singh (PW3) and Chhinda Singh (PW4). It was further argued that there was some dispute between Vijay Kumar deceased and Pardeep Kumar alias Mintu regarding return of CD player, on account of which murder of Vijay Kumar has been committed. He prayed that the appeals, having no substance, be dismissed. In this case, direct evidence in the shape of eye- witness account, regarding murder of Vijay Kumar, is not available on record. The appellants have been convicted and sentenced on the basis of circumstantial evidence, i.e., they being last seen with Vijay Kumar before his death. In CRIMINAL APPEAL NO. 312-DB OF 2007 -8- such like situation, it is duty of the Courts to analyse entire evidence of the prosecution in a very critical manner in order to separate truth from falsehood. The parameters to convict an accused, on the basis of circumstantial evidence were laid down by their lordships of the Supreme Court in Bablu alias Mubarik Hussain v. State of Rajasthan, 2007(1) RCR (Criminal) 296. In that case, after analyzing approximately entire case law on the subject, it was observed that when a case rests on circumstantial evidence, the evidence led against the accused must satisfy the following tests: “a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. b) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; c)the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and d) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than than 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. e)If the evidence is reasonably capable of two inferences, the one in favour of the accused must be accepted. f)Circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable CRIMINAL APPEAL NO. 312-DB OF 2007 -9- doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. g)Where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.” Evidence in this case is to be analysed in the light of the norms enumerated by the Hon'ble Supreme Court, as mentioned above. FIR was recorded on August 26, 2005. As per case of the prosecution , on February 21, 2005, Pardeep Kumar alias Mintu came to the house of the deceased and took him on a motor-cycle at about 10 AM. Vijay Kumar deceased did not return till the evening. Bhola Ram (PW2) went to the house of Pardeep Kumar, who was found coming from the opposite direction. On enquiry, he failed to give any satisfactory answer regarding whereabouts of Vijay Kumar. Same happened in the morning, on February 22, 2005. At about 10 AM on February 22, 2005, Pardeep Kumar told PW2 that Vijay Kumar was with Gagandeep Singh alias Gaggi. PW2 then went to the house of Gaggi. He was told by father of Gaggi that Vijay Kumar and Gaggi had gone to Bhola Ram's house on a motor-cycle. Bhola Ram (PW2) came back. However, his son was not available in his house. He again visited Gaggi's house. Then he was told that Vijay Kumar has died and his dead body is lying in the Hospital. Thereafter, Bhola Ram (PW2) went to the Hospital and made statement Ex. PB to the police, stating all facts, on the basis of which DDR No. 19 was recorded in Police Station Kotkapura on February 22, 2005. It is apparent from the record that FIR was recorded against the CRIMINAL APPEAL NO. 312-DB OF 2007 -10- appellants on August 26, 2005, on the basis of an enquiry report, which was conducted on application moved by Bhola Ram (PW2). It is contention of counsel for the appellants that Bhola Ram (PW2) had tried to twist the facts. When we go through his statement Ex. PB and the version, given in his subsequent applications, on the basis of which enquiry was conducted, the argument appears to be correct. In the statement Ex. PB, this witness has stated that on February 21, 2005, his son Vijay Kumar had gone from his house on a motor-cycle, at about 10.30 AM, stating that he was going to redeem his CD player, which was mortgaged with Pardeep Kumar alias Mintu. Till the evening, Vijay Kumar did not come back. Bhola Ram (PW2) continued to search for him. On February 22, 2005, he went to the house of Pardeep Kumar alias Mintu at about 8 AM and enquired about Vijay Kumar. As per statement, there was some altercation with father of above named accused. It was further stated that Pardeep Kumar alias Mintu informed that Vijay had gone to the house of Gaggi and they had slept on the tubewell at night and after searching, he would leave him at his house. Bhola Ram (PW2) then went to the house of Gaggi. He was informed that Gaggi had gone to leave Vijay Kumar at his house. Thereafter, he was informed that Vijay Kumar had died. Comparative analysis of the statements, made by Bhola Ram (PW2) indicates that in the subsequent statements, many improvements have been made and an attempt has been made to rope in the appellants -accused in this case. In both the statements, name of Vinod Kumar alias Banti is missing. Investigating Officer – SI Ranjit Singh (PW5) has stated in Court that during enquiry, he had interrogated Kulwant Singh (PW3), Chhinda Singh (PW4) and others. However, as per record, Kulwant Singh's CRIMINAL APPEAL NO. 312-DB OF 2007 -11- statement was recorded only on September 8, 2005. It was also stated by the Investigating Officer that he had gone to the place, where Vijay Kumar was found dead by Kulwant Singh, on September 8, 2005, in the company of above named person. Contention of counsel for the appellants that deposition made by this witness is not trust-worthy, appears to be correct. Kulwant Singh (PW3) has stated that on February 22, 2005, at about 11/11.30 AM, when he was present in his shop, Gaggi (Gagandeep Singh) and Mintu (Pardeep Kumar) came to his shop and told him that their friend was unwell and request was made to him to check up him. He along with them went to a nearby tube-well, where he found Vijay Kumar lying dead. He advised them to take him to the Hospital. This Court is of the opinion that in view of facts on record, deposition made by this witness does not inspire confidence. This witness is not a qualified doctor. The witness has further stated that his statement was recorded by the police on the same date, whereas no such statement is available on record. This witness has further stated that Vijay Kumar was known to him because he had opened a music shop in his neighbourhood. Surprisingly, this witness has not disclosed those facts to parents of the deceased till such time his statement was recorded by the Investigating Officer during enquiry or may be on September 8, 2005. There is no explanation with the prosecution as to why this witness kept concealed the information with him. The witness has also not named Vinod Kumar alias Banti in his statement. This witness has also stated that his statement was recorded only once by the Investigating Officer, whereas Investigating Officer has deposed to the contrary. There is nothing on record to show that how and under what circumstances, CRIMINAL APPEAL NO. 312-DB OF 2007 -12- statement of this witness was recorded. Similarly, statement of Chhinda Singh (PW4) do not inspire confidence. In Court, this witness has stated that at about 4.00/ 5.00 PM, before the date of occurrence, he had seen all the accused along with Vijay Kumar at Bus Stand Kotkapura. It was further stated that he had also seen Gagandeep and Mintu at the shop of Kulwant Singh when they were asking Kulwant Singh (PW3) to accompany them to check up their friend , who was ill. In his presence, Kulwant Singh went with them and on his return, he intimated that Vijay Kumar had died. This witness has further stated that thereafter, he went to Ferozepur, stayed there for about six months and on one fateful day, Ranjit Singh, SI, met him on the Bus Stand. He stopped him and got recorded his statement. In his cross-examination, this witness has admitted that he had gone to Ferozepur after about 14/ 15 days of the occurrence. This witness has also admitted that death of Vijay Kumar was known to him as intimated by Kulwant Singh (PW3). Surprisingly, he did not disclose the facts, mentioned above, either to the parents of the deceased or to the police. What for and why he had gone to Ferozepur, the witness has given very evasive replies in that regard. He has stated that he went to Ferozepur to meet his in-laws, where he got medical treatment from a private doctor. Who was the Doctor, what was the disease, whether he was an indoor or outdoor patient, the witness has failed to reply. This witness has further stated that he did not know parentage of the appellants – accused. However, in his statement, parentage of the accused is found mentioned, for which he has failed to give any reply. This witness has also created confusion by stating that Gagandeep Singh was also known as Banti. In his cross-examination, the witness has also failed to give the exact CRIMINAL APPEAL NO. 312-DB OF 2007 -13- date when he had seen the deceased in the company of the appellants – accused. The prosecution has failed to give any explanation regarding strange conduct of this witness. Specific suggestions were put to SI Ranjit Singh (PW5) that Chhinda Singh (PW4) was a police tout. In view of facts on record, this Court is convinced that above named witness was an introduced witness. SI Ranjit Singh (PW5) has admitted that during investigation, Pardeep Kumar alias Mintu was found innocent. Furthermore, there is no evidence on record as to at whose tube-well Vijay Kumar was found dead by Kulwant Singh (PW3). There is nothing on record to state about ownership of that property. Otherwise also, even as per case of the prosecution, the appellants – accused were last seen with the deceased by Chhinda Singh (PW4) at the Bus Stand at about 5 PM before the date of occurrence. On the next day, at about 11.30 AM, two of the accused came to Kulwant Singh (PW3) with a request that he should check up their friend, who was lying ill at a nearby tube-well. Kulwant Singh found Vijay Kumar dead at the spot. In between, what happened and where the accused remained, there is no evidence on record. On the basis of last seen evidence, under what circumstances an accused can be convicted, their Lordships of the Supreme Court in Mohibur Rahman and another v. State of Assam, (2002) 6 Supreme Court Cases 715, has set down the parameters. After analyzing the evidence, in that case, it was observed thus: “The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more CRIMINAL APPEAL NO. 312-DB OF 2007 -14- establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.” Same is the situation in this case. The prosecution has failed to show close proximity of the appellants – accused last seen with the deceased Vijay Kumar. As has been held earlier, statements made by PW3 Kulwant Singh and PW4 Chhinda are very shaky and unworthy of any credibility. If that is so, what evidence remains against the appellants – accused. PW2 Bhola Ram father of the deceased had also improved his version, which he earlier gave to the police on May 22, 2005. There are lot of improvements so far as his earlier statement Ex. PB and the subsequent statements made to the Investigating Officer and within the Court are concerned. So far as Vinod Kumar alias Banti is concerned, virtually, his name was not directly mentioned by any of the witnesses. He was referred to only as son of a Pandit. Against Gagandeep Singh, it was accusation that he had taken dead body of Vijay Kumar to the Hospital. It was so mentioned by Dr. Raminder Narang (PW8). This witness