IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 556 -DB of 2000 Dated of Decision:- May 19 , 2009 Vijay Kumar ....APPELLANT VERSUS State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Sh. Jasjit Singh Bedi, Advocate for the appellant. Sh. Kulvir Narwal, Addl. Advocate General Haryana. ------ MEHTAB S.GILL, J. This is an appeal against the judgment of the learned Addl. Sessions Judge (I), Faridabad, whereby he convicted Vijay Kumar son of Ram Lakhan under Section 302 IPC and sentenced him to undergo R.I. for life. Fine of Rs.500/- was imposed. In default of payment of fine, appellant was directed to undergo R.I. for one year. The co-accused of appellant Vijay Kumar, Sunder son of Devi Ram was acquitted by the learned trial Court and no appeal has been filed against his acquittal. 2 Criminal Appeal No. 556 -DB of 2000 The case of the prosecution is unfolded by the statement Ex.PD of Jagdish given to ASI Rajender Singh in front of East India Cotton Mill, Mujessar. Jagdish stated, that he is a resident of Sarai Mohalla, Mujessar. He has a Halwai shop in the main market. On 2.10.1999 at about 4.30/5.00 p.m., his daughter Premwati @ Gola aged 6/7 years left the house to play outside. She did not return till 6 p.m. Jagdish along with his wife Raj Kumari searched for their daughter, but could not find her. On 3.10.1999 at about 6 a.m., when they again started the search of their daughter, one passer-by told them that there was a dead body of a girl lying near a drain which had dirty water (of the old fish market). Jagdish went to the culvert and found the dead body of his daughter Premlata. He took out the body from the drain and kept it on the pavement. He noticed that three fingers of her right hand had been chopped. Her ear was chopped. A part of the tongue was chopped and bloodish water was coming out of her mouth. A gunny bag of fodder was lying beneath the culvert. On opening the bag, he found one chappal of blue colour. He along with his son Parmod Kumar went to lodge the FIR, when they met ASI Rajender Singh on the way. On the basis of this statement, FIR Ex.PD was recorded on 3.10.1999 at 10.40 a.m. at Police Station Mujessar and the special report reached the Ilaqa Magistrate on the same day at 11.55 a.m. The prosecution to prove its case brought into the witness box, SI Prem Singh PW1, Anoj Kumar Constable PW2, Dr.(Mrs.) Beena Sharma PW3, Vidya Nand Constable PW4, HC Rohtash Singh PW5, Parmod Kumar PW6, SI Om Parkash PW7, Jagdish PW8, HC Kartar Singh PW9, Suresh 3 Criminal Appeal No. 556 -DB of 2000 Kumar Constable PW10, SI Sukhwinder Singh PW11 and ASI Rajender Singh PW12. Learned counsel for the appellant has argued, that the disclosure statement Ex.PF was made by the acquitted accused Sunder on 3.10.1999. As per the disclosure statement, underwear and chappal were recovered from the Nala. Appeallant Vijay Kumar made his disclosure statement Ex.PG on 4.10.1999 and strangely as per this disclosure statement, these two articles were recovered. It is clear that the Investigating Officer ASI Rajender Singh PW12 already knew the place of occurrence as per the disclosure statement Ex.PF made to him by Sunder. Disclosure statement of appellant Vijay Kumar Ex.PG is a concocted story. The disclosure statement made by Sunder Ex.PF cannot be taken into consideration qua appellant Vijay Kumar. Appellant was arrested on 4.10.1999 and his blood stained shirt was sent to the FSL on 5.10.1999. The FSL report has stated, that the shirt was blood stained. It has not come anywhere in the statement of ASI Rajender Singh PW12, that these blood stains were that of deceased Premlata. Recovery memo Ex.PH does not have the signatures of appellant Vijay Kumar. With the same set of evidence, Sunder the co-accused of appellant Vijay Kumar was acquitted, but appellant Vijay Kumar has been convicted. There is no motive for the commission of the offence, nor it has been spelt out by any of the witnesses, especially Parmod Kumar PW6, the brother of the deceased and Jagdish PW8, the father of the deceased. There 4 Criminal Appeal No. 556 -DB of 2000 is no enmity whatsoever between the complainant and the appellant. There is no last seen evidence. There is no extra judicial confession. There is no independent witness to the disclosure statement Ex.PF. Learned counsel for the State has argued, that as per FSL report Ex.PN, the shirt was blood stained. The underwear of the deceased was lying a half kilometer away because the body was flowing in the Nala. FIR Ex.PD is a truthful document. At that moment of time, Jagdish PW8, the father of the deceased, did not know who had taken his daughter away, as she had gone out to play. It is later on i.e. on 3.10.1999 Sunder, co- accused of the appellant was arrested and appellant Vijay Kumar was arrested on 4.10.1999 after the disclosure statement was made by him that appellant Vijay Kumar had committed the murder. Motive always lies deeply in the mind of the accused. Appellant was having some sort of grudge against complainant Jagdish PW8, that he picked his daughter and thereafter committed her murder. We have heard the learned counsel for the parties and perused the record with their assistance. In disclosure statement Ex.PF made by Sunder (acquitted) on 3.10.1999, he (Sunder) stated, that the chappal and the underwear of the deceased were thrown in a dirty water drain and he could have them recovered. This statement was given to SI Sukhwinder Singh PW11 on 3.10.1999. Learned counsel for the appellant has rightly argued, that on 3.10.1999 the police knew about the place of occurrence and where the underwear and chappal of the deceased were lying. 5 Criminal Appeal No. 556 -DB of 2000 SI Sukhwinder Singh PW11 has further stated, that appellant Vijay Kumar was arrested on 4.10.1999 and the shirt, which he was wearing, was blood stained. It is strange that appellant Vijay Kumar was wearing a blood stained shirt for 24 hours. Appellant Vijay Kumar would not have worn this blood stained shirt, but would have thrown it away. Even if he would have worn the shirt, he would have washed it so well that the blood stains could not be noticed with a naked eye. Further SI Sukhwinder Singh has stated, that appellant Vijay Kumar gave disclosure statement Ex.PG stating, that the chappal and underwear of the deceased were thrown in the Nala. Underwear Ex.P1 was recovered on 5.10.1999 from the Nala in the presence of Jagdish and Parmod Kumar PWs. Statement of SI Sukhwinder Singh PW11 is not a truthful statement. As already stated above, on 3.10.1999 the co-accused (Sunder) of appellant Vijay Kumar had disclosed the place of occurrence and where the chappal and underwear of the deceased were lying. Nothing has come from the side of the witnesses as to why they waited for two days to recover these articles, which were lying in a flowing drain. FSL report Ex.PN shows that the frock and Kurta were stained with human blood. Shirt (Kurta) was sent to the FSL on 5.10.1999. Repeating again though already discussed above, appellant Vijay Kumar would not have worn a blood stained shirt for 24 hours. He would have destroyed it or washed so well that the blood stains could not be noticed. There is no motive or previous enmity between the complainant and appellant Vijay Kumar to commit the murder of Premlata. There is no last seen evidence. There is no extra judicial confession. Apart from the 6 Criminal Appeal No. 556 -DB of 2000 disclosure statement, there is no evidence of any worth, which can be taken into consideration to convict the appellant. We are of the considered opinion that appellant Vijay Kumar has not committed the murder of the deceased. The benefit of doubt is given to him and he is acquitted of the charge framed against him. If in custody, he be set free forthwith. Appeal is allowed. Conviction and sentence of appellant Vijay Kumar is set aside. (MEHTAB S.GILL) JUDGE (DAYA CHAUDHARY) May 19, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO