Criminal Appeal No.480-DB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 01.07.2008 Vikram .....Appellant versus State of Haryana .....Respondent CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH. HON'BLE MR.JUSTICE A.N.JINDAL. Present : Mr.R.S.Rai, Senior Advocate with Mr.Anurag Arora, Advocate, for the appellant. Mr.S.S.Randhawa, Additional A.G. Haryana with Mr.Adish Gupta, Advocate. -.- UMA NATH SINGH, J. This judgment shall also dispose of connected Criminal Revision No.218 of 2002 (Dharambir versus Satbir), filed by complainant Dharambir against the judgment of acquittal of co-accused Satbir. Both these matters arise out of a judgment dated 24.8.2001, passed by learned Additional Sessions Judge, Faridabad in Sessions Case No.63 of 12.5.2000 recording acquittal of accused Satbir and conviction of accused-appellant Vikram under Sections 302/34 IPC and sentencing him to undergo RI for life with a fine of Rs.1000/- with direction to undergo RI for further one year in case of default of payment of fine. However, on other counts, namely 201 and 120-B IPC, the accused-appellant Vikram was acquitted. It appears from the prosecution case that FIR (Ex.PA) was recorded on the statement of Dharambir Singh (PW1), on 22.10.1997 at Criminal Appeal No.480-DB of 2001 2 10.30 a.m., by ASI Dharam Pal, Incharge, Police Post, Suraj Kund. In his statement, Dharambir mentioned that deceased Subhash, his cousin, was the eldest of three brothers who are the sons of his uncle Pillu Ram. His uncle Pillu Ram died about 5-6 months ago. On 20.10.1997, deceased Subhash went to the shop of one Satbir son of Bhole Ram in connection with some auction sale to be conducted by some local Committee on his Scooter No.DL-3SG-3387. He parked the scooter near the quarters and went to the shop of Satbir on foot. However, the auction process was over before he could reach there and since then his whereabouts were not known. His scooter was found parked on the next day i.e. 21.10.1997 in the morning behind the house of one Seelak Ram (PW10) of Lakkarpur. Search of Subhash could not yield any immediate result. On 22.10.1997, in the morning hours, during further search of Subhash on enquiry from two lady labourers, they informed that they had seen a male dead body lain in a gunny bag at a place ahead of the telephone exchange and both the feet of dead body were protruding from the gunny bag. Hence, complainant Dharambir, Seelak Ram and one Tas Ram reached the spot immediately, and they identified the dead body to be of Subhash. On removing the gunny bag, they noticed that the neck of dead body was missing and both the hands had clenched. Leaving Seelak Ram and Tas Ram near the dead body, the complainant went to police post for reporting the matter. According to the statement given by complainant Dharambir, some unknown person committed the murder of his cousin Subhash and the head of dead body was missing. Only its trunk was found lain in the gunny bag. His statement was, thus, recorded and the police registered a case under Criminal Appeal No.480-DB of 2001 3 Sections 302/201/34 IPC and began investigation. ASI Dharam Pal (PW12) sent the statement of complainant Dharambir (PW1) to Police Station for registration of a formal FIR, which was recorded vide Ex.PA/1 by ASI Gian Singh. ASI Dharam Pal (PW12) visited the spot thereafter and conducted inquest proceedings of dead body. He also prepared a site plan and recorded the statement of witnesses under Section 161 Cr.P.C. on the same day and sent the dead body for postmortem examination. On 23.10.1997, he received a secret information and laid a blockade. On that day, co-accused Satte @ Satender was produced by one Suresh Kumar (not examined). Investigating Officer Dharam Pal (PW12) recorded the disclosure statement given by accused and pursuant thereto, the head of dead body was recovered and sent for postmortem examination. At his instance, knife, the weapon of offence, was recovered and taken into possession vide Ex.PV/1 and a rough site plan of scene of recovery of knife was prepared vide Ex.PV/2. Investigating Officer arrested co-accused Satbir (since acquitted) on 25.10.1997 and accused Vikram on 1.11.1997. Vikram suffered a disclosure statement and pursuant thereto, a knife, the weapon of offence, was recovered. Vide Ex.PB, the place where dead body was thrown by accused persons was exhibited on pointing out by accused Vikram. A rough site plan of place of recovery of the head of the dead body was drawn vide Ex.PX and the place where the incident took place was shown vide Ex.PZ, as pointed out by co-accused Satte. Investigating Officer Dharam Pal also prepared a site plan (Ex.PB/1) of the place from where a knife was recovered on pointing out by accused Vikram. After completion of Criminal Appeal No.480-DB of 2001 4 investigation, a challan was put by Inspector Mohd. Ishaq Khan (PW9) under Sections 302/201/120/34 IPC. On committal order, the case was placed before learned trial Judge, who vide his order dated 9.2.1998, framed the charges against accused persons, who pleaded not guilty. Learned trial Judge on appreciation of evidence on record, while placing reliance on the testimony of Gamman (PW2) supported by the disclosure statement given by accused Vikram and recovery of incriminating articles pursuant thereto, recorded the impugned judgment of conviction and sentence. Learned senior counsel Shri R.S.Rai, appearing for the appellant, assailed the impugned judgment on the grounds: (i) that the prosecution has not attributed any motive to accused appellant Vikram for commission of offence; (ii) that the accused appellant has denied any relationship with Gamman (PW2), who claimed to be distantly related to him; (iii) that the circumstances wherein the disclosure statement was made before the police by accused appellant Vikram does not inspire confidence as he could not have expected any help from Gamman (PW2), who admitted that he did not know accused Vikram from before, except that Vikram's sister was married to his cousin brother's son, whose name also he did not know; (iv) that in the obtaining circumstances, the alleged confessional statement has been recorded only in order to falsely implicate the accused appellant, and (v) that accused appellant Vikram was aged only about 19-20 years at the time of offence and he was not helping in the business of his brother Satbir, who has since been acquitted. On the other hand, learned Additional Advocate General, Haryana, strongly opposed the submissions of learned senior counsel for the Criminal Appeal No.480-DB of 2001 5 appellant, inter-alia, contending: (i) that Gamman (PW2) has clearly stated in so many words that he was closely related to both the parties, and there is no contradiction or infirmity whatsoever in his testimony when he stated that he produced the accused appellant before the police, but he was allowed to go and then after 4 days, the accused was interrogated and taken into custody, and (ii) that accused appellant Vikram, brother of co-accused Satbir, shared the motive with his brother. We have carefully considered the rival submissions and closely scrutinized the records. The prosecution has produced as many as 12 witnesses, whereas the defence has examined none. Dharambir (PW1) is the author of FIR. In his testimony (cross-examinations), this witness has stated that when he reported the matter to police, he did not know as to how this murder took place. He admitted that at the time of reporting to police, he did not state that about 15 days ago there had been a quarrel between deceased Subhash and accused Satbir regarding the amount of Rs.35,000/- Gamman (PW2) in his testimony has stated that accused appellant Vikram was related to him as his sister was married to his nephew named Lala. He only remembered the name of his nephew and not of his wife, sister of accused Vikram. He stated that a few days ago, accused Vikram had come to him in the evening and told that he was frightened of police, which was after him because he and Satte as per their planning committed the murder of Subhash. They took Subhash to chobara of 12 quarter and cut his neck with the help of knife. Next day morning, this witness took accused Vikram along for Faridabad and while going towards Criminal Appeal No.480-DB of 2001 6 Lakkarpur on foot, they met police on the way and produced accused Vikram. Accused Vikram sought time from the police, however this witness went to Lakkarpur and thereafter to village Ghatat. He returned on fourth day in the evening. Next morning thereafter, he went to Police Station and on the way, he met one Pappu (not examined) and they both reached the Police Station. In the Police Station, in his presence, accused Vikram was interrogated and during interrogation, he made a disclosure statement that he had concealed a knife and got the same recovered. His statement was reduced into writing, which is marked as Ex.PB. Police arranged for a private vehicle and went with this witness and accused Vikram towards Surajkund. Vikram asked the vehicle to be stopped near a telephone exchange. He then led the police to a place known as 12 quarter and pointed out the place. He thereafter led the police to a ganda nala and there also, he pointed out some place to the police. In regard to all these three places, the police prepared memos as Ex.PC, Ex.PD and Ex.PE. Near ganda nala, he offered to take the police to the place of concealment of knife in village Ghotal. Accused Vikram asked the vehicle to be stopped and then led the police to a place where a big stone was lying. From underneath the stone, he got recovered the knife, which was stained with blood. Finally, sketch of knife was prepared, which was attested by this witness and Pappu (not examined). Knife (Ex.PF) was made into a sealed parcel and taken into possession vide Ex.PG. Police also recorded the statement of this witness. From the above statement of this witness, this is not clear as to for what purpose he stayed for four days at village Lakkarpur and village Ghatat after he produced accused Vikram before police and he was allowed Criminal Appeal No.480-DB of 2001 7 to go. This is also not clear as to why he went to police station again after four days and that too at the time when accused Vikram was being interrogated. Moreover, the details of place where from the knife was recovered pursuant to the disclosure statement given by accused Vikram also appear to be exaggerated and unbelievable. This seems unusual that accused Vikram while being in police custody would have taken police from place to place for recovery of knife in the manner as stated by this witness. Rakesh Kumar (PW3) is a Draftsman, who prepared scaled site plan (Ex.PH). Constable Ram Mehar (PW4) produced a true copy of DDR (Ex.PJ) to show that mother of deceased Subhash had made a missing rapat. Dr.C. Pal (PW5), Deputy Chief Medical Officer, conducted the postmortem of headless dead body on 22.10.1997 and noticed the injuries as reproduced below: “1. Head and neck missing, amputed at the level of C5 vertebral body. A circular incised wound regular in out line is present posteriorly but irregular interiorly. AP diameter of wound was 6 inches and transverse diameter were 5 inches. All the margins were sharp and clean with clotted blood, all over the wound. Other structure of neck also cut at the same level. 2. Skin of palm and sole corrugated and sodden. Skin of back could be pealed of easily leaving white raw surface. 3. Spinal cord was cut at the level of C5. Wound was clean cut with clotted blood. Vertebral Body of C5 was cut to the lower part.” Criminal Appeal No.480-DB of 2001 8 Dr.Basant Lal Sirohiwal (PW6) conducted the postmortem of the neck and head of dead body of deceased and noticed the injuries as reproduced below: “1. All incised stabbed wound situated on the middle front of upper neck near chin in transfer plain 5 cm long both the margins were regular going deep, pearsing next structures and going deep below the level of hyoid bone to communicate with the decapitated level of neck, hyoid bone was intact. Left angle was more acute as compare to right. 2. Decapitated was showing clean cut regular margins all around the neck. More so on the back aspect with additional flaps of skin with regular margins on both sides near the angle of mandible. The cut was about 14 cm in transfer plain and 16 cm in anterior posterior plain. The cut was situated 3.5 cm below the chin in mid line. 5 cm below the right ear lobule and 5.5 cm below left ear lobule. A flab of additional skin was hanging on both sides near the level of a angle of mandible 4 cm on right side and 6 cm on left side of neck. The under lying muscle with soft tissues and large blood vessels were cut through and through. The transfers process of C4 cervical vertebra and the lower border of body was cut through and through. The spinal cord was softened and cut through and through at the same level. Infiltration of Criminal Appeal No.480-DB of 2001 9 blood was present around the cuts and of vertebra and in the soft tissues, muscles were showing sharp cut slicing effect more so on back sides with infiltration of blood.” All the injuries were depicted in a diagram and on internal examination of scalp, no injury was noticed on scalp, nor any fracture. Brain was liquified and decomposed and sagittal suture in inner table was showing obliteration on frontal aspects. On the back aspect, it was in the process of obliteration. Hyoid wound was intact and the structures for about 0.2 cm below the level of hyoid wound were missing. Tongue was also found intact and normal. Dr.Basant Lal Sirohiwal (PW6) in his opinion stated that this was a head of a young adult male. Injuries were ante- mortem and homicidal in nature, which were caused by a heavy sharp cutting weapon. Duration of death was about 4-5 days before the postmortem. Looking to the nature of injuries in the neck, the head was found to belong to the same body. The Doctor proved Ex.PN as a carbon copy of the postmortem report. Hem Raj (PW7) has not supported the prosecution case in toto and he was declared hostile. In his cross- examination by PP, he has stated as: “I have not stated before the police that two persons, namely, Vikram and Satte @ Satender came to me and demanded key of my room and further told that they are to arrange a party on that night and he should sleep somewhere else. (confronted with portion A to A in Ex.PC where it is so recorded). In the morning the door was bolted and when I entered, then the bedding of another man who used to sleep in my room was Criminal Appeal No.480-DB of 2001 10 missing. I also noticed that 2-3 mug of water had also been taken out from the water lying in the basket. It is wrong to suggest that I am not supporting the whole version falsely.” Constable Mahesh Kumar (PW8) is a formal official witness. He only took the dead body for postmortem examination and submitted the parcel handed over to him by the Doctor at the Police Station. Inspector Mohd. Ishaq Khan (PW9) was the SHO of Police Station, NIT, Faridabad. He submitted the report under Section 173 Cr.P.C. Seelak Ram (PW10) identified the dead body as also incriminating articles connected therewith at the time of recovery. Constable Ghanshyam (PW11) tendered his evidence on affidavit (Ex.PT) as he delivered the incriminating articles in FSL for chemical examinations. ASI Dharam Pal (PW12) is the Investigating Officer. Regarding arrest of accused Vikram, recording of his disclosure statement and recovery of weapon of offence pursuant thereto, this witness in his cross-examinations has stated as: “I arrested Vikram accused near village Lakkarpur at about 5 pm. Recovery of knife was effected on 4.11.97. It is incorrect that Vikram never made any disclosure statement nor got recovered any knife. It is incorrect that all the recovery proceedings are fabricated. It is incorrect that my investigation is tainted and partial.” As regards accused Satte @ Satender, it is pertinent to note that in the impugned judgment rendered by learned trial Court, he is shown to be a proclaimed offender, whereas in his examination-in-chief, ASI Dharam Pal (PW12), has stated as: Criminal Appeal No.480-DB of 2001 11 “I prepared the rough site plan (Ex.PZ) of the place where occurrence is alleged to have taken place and the map was prepared on the pointing out of Satte accused, who is now dead.” Learned Additional Advocate General, appearing for the State of Haryana, has not received any instruction to clarify this contradiction. Accused appellant Vikram in his statement under Section 313 Cr.P.C. denied all the four questions put to him and pleaded innocence. However, he did not produce any defence witness in support of his version. Gamman (PW2) is the star witness in this case, on the basis of whose testimony, conviction of accused appellant Vikram has been recorded. Gamman (PW2) has admitted that he did not know the details about the death of deceased. There is nothing on record to suggest that he was so intimately related to accused Vikram, which could have inspired his confidence in this witness. In these circumstances, this is doubtful that the accused appellant would have confessed his guilt and asked for help in the police case. As stated by witness Gamman (PW2), accused Satbir, brother of accused Vikram had a quarrel with the deceased about 15 days prior to the date of incident and thus, he was attributed a motive. But it does not stand to reason as to why accused Vikram has been convicted for sharing the same motive with his brother Satbir who has been acquitted on the same set of evidence by the trial Court. Moreover, accused Vikram was 19-20 years of age at the time of incident and there was no evidence that he used to look after the business of his brother co-accused Satbir. Criminal Appeal No.480-DB of 2001 12 Besides, witness Gamman (PW2) has not mentioned in detail about the manner in which the murder of deceased Subhash was committed by accused Vikram, which creates further doubt as to whether accused Vikram really gave a disclosure statement in the presence of this witness. Thus, in view of dearth of credible evidence regarding the motive, involvement of accused, disclosure statement given by accused Vikram and the recovery pursuant thereto, accused appellant Vikram deserves to be given benefits of doubt as the entire prosecution case is based only on circumstantial evidence. Hence, the impugned judgment dated 24.8.2001 passed by learned Additional Sessions Judge, Faridabad, in Sessions Case no.63 of 12.5.2000, is set aside, and this Criminal Appeal No. 480-DB of 2001 is allowed. Resultantly, accused appellant Vikram is acquitted of the charge under Section 302 read with Section 34 IPC. So far as the connected Criminal Revision No.218 of 2002 filed by complainant Dharambir against the order of acquittal of co-accused Satbir, is concerned, except the testimony of Gamman (PW2) to the effect that the deceased owed Rs.35,000/- to Satbir and there was a quarrel 15 days prior to the incident, there is no other evidence to reverse the judgment of acquittal recorded by learned trial Court. Further, in view of various judgments of Hon’ble the Apex Court, including the ones (i) 2002(3) RCR (Crl.) 861 (Harijana Thirupala and others versus Public Prosecutor, High Court of A.P., Hyderabad; (ii) 2004(2) RCR (Crl.) 940 (Shingara Singh versus State of Haryana and another, and (iii) AIR 2005 SC 2439 (State of UP versus Gambir Singh and others), if two views are possible, the view Criminal Appeal No.480-DB of 2001 13 taken in favour of the accused by the trial Court should be accepted as the reasonable and possible view. Accordingly, Criminal Appeal No. 480-DB of 2001 is allowed and Criminal Revision No.218 of 2002 is dismissed. (UMA NATH SINGH) JUDGE 1.7.2008 (A.N.JINDAL) pk JUDGE Whether this judgment be referred to Reporter or not? YES/NO