Crl. A. No. D-631-DB of 2008 --1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.D-631-DB of 2008 Date of Decision : 14.03.2011 1. Santro w/o Dharambir, 32 yrs, r/o village Gusaiyana, P.S. Nathusra Chopta, District Sirsa. 2. Vinod Kumar s/o Mani Ram, 24 yrs, r/o village Dhabi Kalan, P.S. Bhattu Kalan, District Fatehabad. ... Appellants Versus The State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL. Present: Mr. Jainainder Saini, Advocate for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana, for the respondent-State. -- M.Jeyapaul, J. Accused Santro and Vinod Kumar, who were convicted for offence under Section 302 of the Indian Penal Code were sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- each and in default to undergo further period of two months each and for offence under Section 201 of the Indian Penal Code and were sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1000/- Crl. A. No. D-631-DB of 2008 --2- each and in default to undergo further rigorous imprisonment for a period of one month each, have preferred the present appeal. 2. The case in brief of the prosecution as reflected from the witnesses examined on their side is as follows:- 3. Accused Santro was the wife of the deceased Dharambir. PW-2 Krishan Kumar had agricultural land. He had given the same for cultivation to the deceased Dharambir and Chander Bhan. Dharambir, his wife, children and accused Vinod Kumar, who was the brother-in-law of the sister of Dharambir in one portion of the house in the field of PW-2. 4. Accused Santro, wife of the deceased Dharambir having been informed of dead body lying in the water tank constructed in the field of PW-1 Beer Singh, Sarpanch, gave a statement to PW-14 ASI Mohinder Singh on 26.07.2006 that her husband Dharambir, who was mentally upset for some days for unknown reasons used to take intoxicants. On 24.07.2006 the family members after taking meals went to bed. But in the morning Dharambir was found missing. Both the accused made a search. The relatives were contacted over phone. But no clue was provided by anybody. It was only PW-1 Beer Singh, Sarpanch, who informed Santro about the Crl. A. No. D-631-DB of 2008 --3- dead body lying in the water tank constructed in his fields. The dead body was identified as Dharambir. She has further stated in her statement that Dharambir might have fallen into the water tank under the effect of intoxicants, but nobody could be found fault with. 5. PW-14 ASI Mohinder Singh having recorded the statement Ex.P-42 given by Santro and dispatched the same for registration of formal First Information Report. He conducted investigation and prepared the inquest report Ex.P-43. He seized slippers Ex.P-44 under recovery memo Ex.P-26. The dead body was photographed by the photographer engaged by PW-14. The dead body was sent to PGI MS Rohtak for conducting post-mortem examination. 6. PW-12 Dr. Luv Kumar Sharma, Associated Professor, Department of Forensic Medicines, PGI MS Rohtak conducted post-mortem examination on the dead body of Dharambir on 27.07.2006 at about4.00 PM. He found that the dead body was in a decomposed state, infested with maggots and crawling all over the body. He found two injuries on the dead body of Dharambir. The first injury was a defuse reddish contusion over parietal area of scalp measuring 8 cm x 6 cm on both sides of the mid line. Second injury was a diffuse contusion measuring 6 cm x 4 cm over right parietal area of Crl. A. No. D-631-DB of 2008 --4- scalp. The brain was haemorrhagic through out. The injuries were found to be ante-mortem and sufficient to cause death in the ordinary course of nature. It is his opinion that the death would have occurred about 2 or 3 days prior to the post- mortem examination. After the receipt of the report from Forensic Science Laboratory, he expressed his final opinion that the death had occurred due to the head injuries described in the post-mortem report Ex.P-40. In the cross-examination he was assertive that those injuries would not have sustained by the deceased by a simple fall on a hard surface from a height of about 15 feet. 7. PW-11 Sub Inspector Ram Chander took up the case for investigation on 28.07.2006. PW-14 ASI Mohinder Singh also joined him in the process of investigation. In the meantime based on the opinion expressed by the doctor a case under Section 302 of the Indian Penal Code was registered and special report with respect thereto was also sent to Illaqa Magistrate and Higher Officials. 8. On 30.07.2006 PW-1 Beer Singh, Sarpanch of the village Telanwali produced both the accused Vinod Kumar and Santro before PW-11 Sub Inspector Ram Chander. Both the accused were interrogated. Accused Vinod Kumar suffered disclosure statement Ex.P-35 and accused Santro Crl. A. No. D-631-DB of 2008 --5- suffered disclosure statement Ex.P-36. On the basis of the disclosure statement Ex.P-35 made by the accused Vinod Kumar, Kulhari (axe) was recovered from the dhani of Krishan Kumar. Site plan Ex.P-46 was prepared by PW-11 Sub Inspector Ram Chander. PW-11 Sub Inspector Ram Chander produced both the accused before Illaqa Magistrate for the purpose of judicial remand. 9. PW-13 Arjun Devi, ASI having completed investigation, filed final report against the accused. 10. Accused Vinod Kumar has submitted responding to the questions under Section 313 of the Code of Criminal Procedure that he was innocent and was falsely implicated in this case. It is his further submission that nothing was recovered at his instance. 11. Accused Santro has submitted that she was innocent and was falsely implicated in this case. Her husband Dharambir drowned himself in the water tank in the field of Krishan Kumar. 12. The trial Court having relied upon the evidence adduced on the side of the prosecution returned a verdict of conviction not only under Section 302 of the Indian Penal Code but also under Section 201 of the Indian Penal Code. Crl. A. No. D-631-DB of 2008 --6- 13. Learned counsel appearing for the appellants would vehemently contend that the star witnesses PW-1 Beer Singh, PW-2 Krishan Kumar , PW-5 Chander Bhan, and PW-8 Mangal have turned hostile to the case of the prosecution. The injuries also do not match with the weapon recovered. The mere recovery of slippers of the deceased from the place where the dead body was found would not automatically implicate the accused in the crime. 14. Per contra, the learned Additional Deputy Advocate General appearing for the State would submit that the conduct of accused Santro, the recovery of the weapon of offence, the other material circumstances projected and the medical evidence available on record would go to establish that both the accused committed the murder of Dharambir and they threw his dead body in a water tank in order to screen the evidence. 15. To say the least, the trial Court without properly appreciating the legal evidence on record has simply convicted both the accused. On a thorough perusal material produced by the prosecution we come to a decision that there is virtually no material available on record to convict both the accused. Crl. A. No. D-631-DB of 2008 --7- 16. The two injuries found on the head of the deceased would of course indicate clearly that the deceased Dharambir had received two injuries prior to his death. PW-12 Dr. Luv Kumar Sharma, Associated Officer, has expressed his opinion that those two injuries sustained ante- mortem by the deceased had caused his death. He had also opined that there was no possibility of sustaining such head injuries by a fall from about 15 feet. It is quite clear from the medical evidence adduced by the prosecution that the ante-mortem injuries sustained by Dharambir had taken away his life. Therefore, it cannot be a case of suicidal death as projected by the accused Santro at the first instance. 17. In view of the above we find that the prosecution has established beyond reasonable doubt that Dharambir had died due to homicidal violence. 18. The prosecution could establish that Dharambir was in fact attacked prior to his death and on account of the injuries sustained in the head he breathed his least. But we will have to find whether the prosecution could establish beyond reasonable doubt the actual assailants who perpetrated the crime of murder. Crl. A. No. D-631-DB of 2008 --8- 19. As rightly pointed out by the learned counsel appearing for the appellants, there is virtually no legal evidence available on record to clamp the accused with the crime of murder and screening of evidence. PW-1 Beer Singh, Sarpanch of Gram Panchayat Telanwali has completely turned hostile to the story of the prosecution. The prosecution made an attempt to establish the alleged extra judicial confession given by both the accused to PW-1 but unfortunately he (PW-1) failed to support the story of the prosecution. Neither the accused Vinod Kumar nor the accused Santro confessed before him, he has deposed before the trial Court. Therefore, the alleged extra judicial confession given by both the accused before PW-1 Beer Singh was not established by the prosecution. PW-5 Chander Bhan had also cultivated the land of PW-2 Krishan Kumar, residing in the adjoining portion of the house where the accused Santro and Dharambir alongwith their children and accused Vinod Kumar resided. He is really a competent witness to speak about the occurrence. But quite unfortunately he also left the prosecution in the lurch. In other words he also failed to support the case of the prosecution. In fact he had come out with a version that he had not witnessed the occurrence. The prosecution in fact failed to establish through PW-5, who Crl. A. No. D-631-DB of 2008 --9- turned hostile that the occurrence was witnessed by him in the mid of night. The eye witness account attempted to be projected through PW-5 Chander Bhan did not take off. 20. PW-8 Mangal, who was the brother of the deceased Dharambir, would depose that both the accused confessed before the Adampur Police that they committed the murder of his brother Dharambir with an axe. He would further depose that accused Santro confessed before the police that she caught hold the hands of the deceased and accused Vinod Kumar caused axe blow on the person of his brother Dharambir. He also speaks about the recovery of the slippers of his brother. It is his admission that he did not disclose before the Investigating Officer during the inquest proceedings the complicity of the accused in the murder. 21. Firstly the confession made by an accused before the police officer is directly hit by Section 24 of the Indian Evidence Act. In other words no confession made to a Police Officer shall be proved as against a person/accused of any offence. Therefore that part of the evidence relating to the confession alleged to have been made by the accused before a Police Officer is not at all admissible in evidence. But quite unfortunately such an inadmissible portion of the evidence has been found incorporated in the deposition of PW-8 Mangal. It Crl. A. No. D-631-DB of 2008 --10- is to be noted that PW-8 Mangal does not say that he was present at the time when both the accused were produced by PW-1 Beer Singh. Nor is it his case that he was present when both the accused confessed their guilt before PW-1 Beer Singh. Therefore, the confession part of the story of the prosecution does not stand the legal scrutiny. 22. Further the mere recovery of slippers of the deceased Dharambir does not connect the accused with the crime. It is also noted that PW-8 Mangal, who did not find fault with the accused during the inquest proceedings comes out with a story that it was only Santro who informed him of the intake of intoxicants by the deceased. The evidence of PW-8 Mangal also does not go to establish the case of the prosecution. 23. PW-2 Krishan Kumar was examined to establish the recovery of Kulhari (axe ) from his Dhani located in his field. It is to be noted that he does not speak about the disclosure statement given by the accused. He simply deposed during the course of chief-examination that the police recovered one kulhari from his field. In order to connect the accused the material object recovered should be directly linked to the disclosure statement given by the accused concerned. PW-2 Krishan Kumar, an independent witness has Crl. A. No. D-631-DB of 2008 --11- not supported the case of the prosecution that the accused in fact suffered disclosure statement and based on the same Kulhari was recovered from the dhani in the field of PW-2 Krishan Kumar. 24. Even assuming for the sake of arguments, Kulhari was recovered at the instance of accused Vinod Kumar, the recovery of the material object by itself does not establish the heinous crime charged as against him. The material object did not contain any blood stain. If at all both the accused had hatched a pre-plan to eliminate Dharambir, who allegedly admonished his wife Santro with regard to the illicit relationship she developed with accused Vinod Kumar, there was no reason for him (Vinod Kumar ) to use the back side of the weapon to launch an attack on the head of the deceased. There is an attempt on the part of the prosecution to make it appear that the sharp edged portion of Kulhari was used for attacking the deceased on his head. But such a version of the prosecution does not match with the medical evidence available on record. It is to be noted that the medical evidence would go to show that there was no incised wound on the head caused by a sharp edged weapon. Therefore even the alleged recovery of the material object does not in any way advance the case of the prosecution. We find that on all counts, the Crl. A. No. D-631-DB of 2008 --12- prosecution failed to establish that the accused due to their illicit relationship attacked the deceased Dharambir on his head and caused his death and attempted to screen the evidence. The trial Court has not properly appreciated the evidence on record in the right perspective in accordance with the law of evidence. Therefore, we hold that both the accused are entitled to acquittal of all the charges framed against them. 25. In view of the above, accused Santro and Vinod Kumar are found not guilty of the charges under Section 302 and 201 of the Indian Penal Code. Accordingly the appeal is allowed. The impugned judgment of conviction and the order of sentence passed by the trial Court is set aside. Appellants Santro and Vinod Kumar are directed to set at liberty forthwith, if not required in any other case. ( M. Jeyapaul ) ( Satish Kumar Mittal) Judge Judge 14.03.2011 dinesh To be referred to the Reporters or not?