IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 719-DB of 2008 DATE OF DECISION : 15.07.2010 Vikram Singh .... APPELLANT Versus State of Haryana ..... RESPONDENT Crl. A. No. 779-DB of 2008 DATE OF DECISION : 15.07.2010 Mohan Lal .... APPELLANT Versus State of Haryana ..... RESPONDENT Crl. A. No. 834-DB of 2008 DATE OF DECISION : 15.07.2010 Labh Singh alias Labhu .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MOHINDER PAL Present: Mr. Anil Kshetarpal, Advocate, for the appellants (in Crl. Appeals No. 719-DB and 779-DB of 2008) Mr. A.S. Sullar, Advocate, for the appellant (in Crl. A. No. 834-DB of 2008) Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * Crl. A. No. 719-DB of 2008 -2- SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of three appeals i.e. Criminal Appeals No. 719-DB, 779-DB and 834-DB of 2008, filed by Vikram Singh, Mohan Lal and Labh Singh alias Labhu, respectively. 2. All the three appellants, who are the residents of the same village, were tried by the court of learned Sessions Judge, Kurukshetra, for committing the murder of one Nasib Singh alias Pamma son of Joginder Singh, a resident of their village. Vide judgment dated 3.10.2008, all the appellants were convicted under Sections 302 and 201 read with Section 34 of the Indian Penal Code and vide order dated 6.10.2008, they were sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each, in default of payment of fine to further undergo rigorous imprisonment for a period of six months each, under Section 302 read with Section 34 IPC; and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- each, in default of payment of fine to further undergo rigorous imprisonment for a period of two months each, under Section 201 read with Section 34 IPC. Both the sentences were ordered to run concurrently. Against the said judgment and order, the appellants have filed the instant separate appeals. 3. As per the prosecution version, Nasib Singh alias Pamma (deceased) went missing on 21.10.2007. He was last seen by one Labh Singh son of Jiwan Singh in Theme Park at Dusehra Mela (Kurukshetra). Three days thereafter, i.e. on 24.10.2007, at 2.15 PM, complainant Joginder Crl. A. No. 719-DB of 2008 -3- Singh (PW.15) (father) lodged a report (Ex.P1) about missing of his son, in which he stated that his son Nasib Singh alias Pamma, aged about 20 years, height 5 feet 5 inches, was missing since 21.10.2007. He was last seen by Labh Singh son of Jiwan Singh in Theme Park, Kurukshetra, where he had gone to see Dusehra Mela, but he did not return to the house. In spite of their search, they could not find any clue, therefore, his son be traced. 4. It is further case of the prosecution that on 26.10.2007, dead body of an unidentified person was recovered from a canal. On the same day at 4.25 PM, post mortem of the said dead body was conducted in Civil Hospital, Kaithal. Thereafter, on 27.10.2007, finding the said dead body to be that of an unidentified person, it was cremated by the employees of the Municipal Committee, Kaithal. Thereafter, on 15.11.2007, i.e. 25 days after Nasib Singh @ Pamma had gone missing, complainant Joginder Singh submitted a written complaint (Ex.P26) to the SHO, Police Station Kurukshetra University, Kurukshetra, to the effect that he had come to know that on 21.10.2007, after seeing the Dusehra Mela, in the night, his missing son was served liquor by accused Labh Singh alias Labhu, Mohan Lal and Vikram Singh, near third gate of the University. He was sure that these three accused persons in connivance with each other had killed his son and concealed his dead body somewhere. Legal action be taken against them. On the basis of this complaint, formal FIR (Ex.P27) was registered against all the above accused, at Police Station Kurukshetra University, Kurukshetra, on 15.11.2007 at 2.20 PM. Crl. A. No. 719-DB of 2008 -4- 5. It is further case of the prosecution that on 15.11.2007, the police recorded the statement of Ram Pahl (brother of the deceased), who stated that on 21.10.2007 at about 9.30 PM, he had seen all the three accused in the company of the deceased at third gate of Kurukshetra University, while taking liquor in a white colour Max jeep. On enquiry by him, accused Labh Singh had said that they had to go somewhere else. In the meanwhile, accused Labh Singh asked accused Vikram to drive the vehicle and they went towards Pehowa. 6. It is further the case of prosecution that on the same day, i.e. on 15.11.2007, at 11.00 PM, all the accused had suffered an extra judicial confession before Kapoor Chand (PW.6), Ex-Sarpanch of the village, in which they disclosed that on the day of Dusehra, after serving liquor to Nasib Singh alias Pamma, they strangulated him by putting a rope around his neck and then, after removing his wearing clothes, his dead body was thrown in the canal on Dhand Nelokheri road. 7. It is further case of the prosecution that on the next day i.e. on 16.11.2007, statement of Kapoor Chand (Ex.P7) was recorded by the police and he produced all the three accused before the police. Then they were arrested. Thereafter, on the same day, the police recorded the disclosure statement (Ex.P7/A) of accused Labh Singh alias Labhu in custody. In that statement, he stated that about 3 years ago, deceased Nasib Singh teased his Bhabhi (sister-in-law) Parkasho and he used to malice her reputation in the village, due to which a quarrel had also taken place between him and Nasib Crl. A. No. 719-DB of 2008 -5- Singh and from that day, he was having a grudge in his mind to teach a lesson to Nasib Singh. Similarly, accused Vikram Singh and Mohan Lal also made disclosure statements (Ex.P8 and Ex.P9 respectively). On the same day, from the photographs of the deceased, who was cremated on 27.10.2007 being an un-identified person, the police got identified him as Nasib Singh alias Pamma from his brother Ram Phal (PW.13). 8. During investigation, on 17.11.2007, the police recovered a rope (Ex.P12) and the whilte colour Max jeep, which were taken into possession vide recovery memo Ex.P11. 9. After completion of investigation, the challan was filed against all the accused and they were charge sheeted for the offences under Sections 302 read with Section 34 IPC and 201 read with Section 34 IPC, to which they did not plead guilty and claimed trial. 10. In support of its case, the prosecution examined 15 witnesses. PW.1 HC Ram Beer, PW.3 Jagir Singh, Revenue Patwari, Halqa Jyotisar, PW.7 Jogi Ram, Photographer, PW.10 Mewa Singh EHC, PW.11 Sushil Kumar and PW.12 Pawan Kumar, owner of Max jeep, are the formal witnesses. 11. PW.2 Dr. Om Parkash, Medical Officer, Civil Hospital, Kaithal, who along with Dr. R.D. Chawla and Dr. S.K. Jain, conducted the post-mortem on the dead body of an un-identified male person, aged 30-32 years, height 5 feet 11 inches, proved the post mortem report of the deceased as Ex.P3. The doctors opined that the cause of death of the Crl. A. No. 719-DB of 2008 -6- deceased was asphyxia as a result of ante-mortem drowning, which was sufficient to cause death in the ordinary course of events and the probable time between death and post-mortem was 24 to 36 hours. 12. PW.4 HC Shamsher Singh is the witness to recovery of the dead body of an un-identified person from the canal. He got conducted the post-mortem of the dead body from Civil Hospital, Kaithal and thereafter handed over the dead body to the employees of the Municipal Committee, Kaithal, for cremation. 13. PW.5 Balwan Singh ASI is the witness to the statement (Ex.P7) of Kapoor Chand, the disclosure statements (Ex.P7/A, Ex.P8 and Ex.P9) made by accused Labh Singh, Vikram Singh and Mohan Lal and the recovery of rope and Max jeep. 14. PW.6 Kapoor Chand, Ex-Sarpanch of village Khanpur Rodan, before whom a joint extra-judicial confession was made by all the three accused persons, did not support the case of the prosecution qua accused Vikram Singh. 15. PW.8 HC Tej Pal proved that on 16.11.2007, Ram Phal identified the dead body of his brother Nasib Singh, on the basis of photographs. 16. PW.9 Atma Ram ASI took out the dead body of an un- identified person from a canal, completed the inquest proceedings (Ex.P4), got conducted the post mortem examination of the dead body, and got the dead body cremated from the employees of Municipal Committee, Kaithal. Crl. A. No. 719-DB of 2008 -7- 17. PW.13 Ram Phal, brother of the deceased, who allegedly had last seen the deceased in the company of the accused persons on 21.10.2007 at 9.30 PM at third gate, Kurukshetra University, Kurukshetra, and had identified the dead body of his brother on 16.11.2007 on the basis of the photographs, has fully supported the prosecution case. 18. PW.14 Aman Kumar, Inspector, is the Investigating Officer in the case. 19. PW.15 Joginder Singh is the complainant in this case. 20. In their statements under Section 313 Cr.P.C., the appellants denied all the allegations appearing against them in the prosecution evidence. They pleaded innocence and false implication in the case. However, they did not lead any evidence in their defence. 21. The trial court, after considering the evidence on record and while relying upon the circumstantial evidence, led by the prosecution, convicted and sentenced the appellants, as indicated above. Hence, these appeals. 22. We have heard the arguments of learned counsel for both the parties and have gone through the trial court record. 23. Learned counsel for the appellants argued that in the instant case, which is based upon the circumstantial evidence, the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. According to them, the circumstantial evidence led by the prosecution is not only inconsistent, but is also not sufficient to arrive at a definite conclusion Crl. A. No. 719-DB of 2008 -8- that the alleged offence has been committed only by the appellants. While referring to the medical evidence, i.e. the Post Mortem Report (Ex.P3) and the statement of PW.2 Dr. Om Parkash, learned counsel argued that this evidence does not match, at all, with the prosecution story. According to them, as per the prosecution version, Nasib Singh alias Pamma was killed by strangulation with a rope and thereafter, his dead body was thrown in the canal, whereas as per the Post Mortem Report (Ex.P3), the deceased has died due to drowning and not because of strangulation. In the post mortem examination, no injury was found on neck of the deceased. Learned counsel further argued that as per the Post Mortem Report, length of the deceased was 5 feet 11 inches and his age was 30-32 years, whereas according to the missing report (Ex.P1), lodged by the father of the deceased, height of his missing son was 5 feet 5 inches and his age was about 20 years. Learned counsel, while referring to the time between death and post mortem, as mentioned by the Doctors, argued that the said time is also not matching with the prosecution version, because according to the prosecution, the time gap between death and the post mortem was about 112 hours (from the night of 21.10.2007 to 26.10.2007 at 4.25 PM). Thus, according to learned counsel for the appellants, the medical evidence renders the entire prosecution version as doubtful. They further argued that keeping in view the medical evidence, even the identification of the deceased by his brother Ram Phal, on the basis of the alleged photographs, is doubtful. According to them, merely on the basis of vague identification, it cannot be held that the Crl. A. No. 719-DB of 2008 -9- un-identified dead body, whose post mortem was conducted on 26.10.2007 and was cremated by the employees of the Municipal Committee, Kaithal, on 27.10.2007, was the dead body of Nasib Singh alias Pamma son of Joginder Singh. 24. Secondly, learned counsel submitted that the last seen evidence, led by the prosecution, is also doubtful. According to the missing report (Ex.P1), deceased Nasib Singh alias Pamma was last seen by Labh Singh son of Jiwan Singh on 21.10.2007 in Theme Park, Kurukshetra, whereas during the course of evidence, the prosecution examined PW.13 Ram Phal, brother of the deceased, who gave entirely different story about the last seen of the deceased. Learned counsel argued that the statements of PW.13 Ram Phal and PW.15 Joginder Singh (complainant) are totally contradictory with each other on major aspects, which further renders the entire prosecution version as doubtful. 25. Thirdly, learned counsel argued that the evidence of extra judicial confession, led by the prosecution, also suffers from many infirmities. They submitted that as per the prosecution story, all the accused went to Kapoor Chand (PW.6) on 15.11.2007 at 11.00 PM and suffered extra judicial confession before him, whereas complainant Joginder Singh (PW.15) lodged the complaint with the police on 15.11.2007, on the basis of which formal FIR was recorded at 2.20 PM, and in his statement before the court, he stated that he had lodged the aforesaid complaint on the information given by Kapoor Chand about the extra judicial confession Crl. A. No. 719-DB of 2008 -10- made to him by the accused persons on the night of 14.11.2007 and thereafter, in the morning, he lodged the complaint to the police. Learned counsel, while referring to the contradictions in the statements of these two witnesses and the improvements made by them, have argued that the story of the extra judicial confession appears to have been managed by the prosecution after registration of the FIR. 26. In the last, learned counsel argued that the prosecution has miserably failed to prove the alleged motive. None of the prosecution witnesses has uttered even a single word about the alleged motive. According to the learned counsel, the motive attains importance, particularly when the case is based on circumstantial evidence, and in such cases, if motive is not proved, then it caused a serious dent in the prosecution case. According to the learned counsel, the alleged motive was not even put to the accused in their statements under Section 313 Cr.P.C. Thus, according to the learned counsel, the complete chain of circumstantial evidence in this case has not been established. 27. On the other hand, learned Additional Advocate General, Haryana, supported the judgment of conviction and the order of sentence, passed by the trial court and submitted that the appellants have been rightly convicted and sentenced, on the basis of the circumstantial evidence, led and proved by the prosecution. 28. We have considered the rival contentions of learned counsel for the parties and perused the record of the case. Crl. A. No. 719-DB of 2008 -11- 29. In this case, there is no eye witness, who had seen the alleged occurrence. The case of the prosecution rests only on circumstantial evidence. When a case rests only on circumstantial evidence, then the offence of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Such circumstances must be cogently and firmly established, which should be of a definite tendency unerringly pointing towards the guilt of the accused. In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, the Supreme Court has held that :- “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” In State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was held that while convicting an accused on the basis of circumstantial evidence, great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also held that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only Crl. A. No. 719-DB of 2008 -12- with the hypothesis of the guilt. 30. Keeping in view the aforesaid principle, we have re- appreciated the evidence on record. 31. In the present case, the prosecution has led two types of circumstantial evidence i.e. the evidence of last seen; and the extra judicial confession made by the accused. As per the missing report (Ex.P1), lodged by PW.15 Joginder Singh (father of the deceased), deceased Nasib Singh was last seen by Labh Singh son of Jiwan Singh on 21.10.2007 in Thene Park, Kurukshetra, where the Dusehra Mela was held. Subsequently, during investigation, the police recorded the statement of PW.13 Ram Phal (brother of the deceased). According to him, last time, he had seen his brother Nasib Singh in the company of the accused on 21.10.2007 at 9.30 PM, when they were taking liquor at third gate, Kurukshetra University, Kurukshetra, while sitting in a Max jeep. According to this witness, he enquired from accused Labh Singh as to whether he was going to home, and he replied that he was not going to home. In the meantime, all the accused along with the deceased had gone towards Pehowa in the said Max jeep. This witness has categorically stated in his statement that on reaching home, he told all these facts to his father. He further stated that on the next day, they enquired from the accused about his brother Nasib Singh, but they did not give any satisfactory reply. If this was the fact, then it has not been explained as to why PW.15 Joginder Singh (complainant) did not mention these facts in the missing report lodged by him with the police. This fact creates doubt in the Crl. A. No. 719-DB of 2008 -13- statement made by this witness. In cross-examination, this witness has further stated that he did not accompany his father on 24.10.2007, when he had gone to lodge the missing report with the police. On the other hand, PW.15 Joginder Singh in his statement has specifically stated that he along with his son went to the police station for lodging the report. He has further stated that his son Ram Phal had disclosed that he had seen the deceased in the company of the accused at third gate of Kurukshetra University, Kurukshetra, where they were taking liquor and this fact was told by him to the police, when the missing report was lodged. This part of the statement made by PW.15 Joginder Singh is contrary to the facts stated in the missing report (Ex.P1) lodged by him. This major contradiction in the statements of these two material witnesses creates doubt in the last seen evidence produced by the prosecution. Further, if the statement of PW.13 Ram Phal is taken to be true, then his conduct becomes improbable, as why he did not stop his brother from taking liquor with the accused and did not ask him to accompany him to home. 32. Secondly, the prosecution is relying upon the evidence of extra judicial confession, alleged to have been jointly made by the accused before PW.6 Kapoor Chand, Sarpanch of the same village. According to the prosecution version, all the three accused went to Kapoor Chand on 15.11.2007 at 11.00 PM and suffered extra judicial confession, whereas on the other hand, as per the statement of PW.15 Joginder Singh complainant, PW Kapoor Chand disclosed him about the confessing of guilt by all the Crl. A. No. 719-DB of 2008 -14- three accused on the night of 14.11.2007 and thereafter, in the morning of 15.11.2007, he went to the police station and moved an application, on the basis of which formal FIR was registered on 15.11.2007 at 2.20 PM. This major contradiction in the prosecution evidence itself is sufficient to discard the evidence of extra judicial confession relied upon by the prosecution. Even otherwise, PW.13 Ram Phal does not support the theory of extra judicial confession, as he states that the accused disclosed the alleged offence on their interrogation. He does not state any thing about the extra judicial confession, although his father Joginder Singh states that his son Ram Phal was with him, when Kapoor Chand disclosed about the confession made by the accused in the night on 14.11.2007. Further, the extra judicial confession alleged to have been made by all the three accused was a joint confession. It is not safe to rely upon such an extra judicial confession to convict a person for the serious offence of murder. In Heramba Brahma and another v. State of Assam, AIR 1982 Supreme Court 1595, it was held that a witness speaks of an extra judicial confession by three accused persons having simultaneously made and when reproduced in his language, it makes no sense. It is dangerous to rely upon such extra judicial confession even if the witness's credentials are not in question. In this case, even PW.6 Kapoor Chand did not support the theory of extra judicial confession with regard to accused Vikram Singh. This fact further creates doubt in his statement that all the accused made any extra judicial confession before him. Crl. A. No. 719-DB of 2008 -15- 33. In a case, based upon circumstantial evidence, motive of the alleged crime assumes great significance. In the present case, as per the prosecution story, motive behind the murder of Nasib Singh was that about 3 years ago, deceased Nasib Singh teased the wife of brother of accused Labh Singh, due to which a quarrel had also taken place between accused Labh Singh and deceased Nasib Singh. However, during evidence, none of the witnesses has uttered even a word about the alleged motive and accordingly, it was not put to the accused in their statements under Section 313 Cr.P.C. Thus, in the present case, the alleged motive has not been established. 34. It is trite that medical evidence is hardly conclusive because it is primarily evidence of opinion and not of fact. In a case of circumstantial evidence, if the prosecution version is contrary to the medical evidence, then such contradiction assumes great importance. In the present case, the medical evidence led by the prosecution does not, at all, match with the prosecution story. According to the medical evidence led by the prosecution i.e. the Post Mortem Report (Ex.P3) and the statement of PW.2 Dr. Om Parkash, the doctors conducted post mortem on the dead body of an unknown male, whose age was 30-32 years and whose length was 5 feet 11 inches, whereas according to the prosecution version i.e. the missing report (Ex.P1), age of the deceased was about 20 years and his height was 5 feet 5 inches. Secondly, as per the medical evidence, the said unknown person died due to drowning, whereas as per the prosecution version, Nasib Singh Crl. A. No. 719-DB of 2008 -16- was killed by strangulation with a rope. As per the Post Mortem Report, no injury was found on the neck of the deceased. PW.2 Dr. Om Parkash, in his statement, has categorically stated that death of the said person was not due to strangulation, but it was because of drowning. The doctors further pointed out that the probable time between death and post mortem was between 24 to 36 hours, whereas according to the prosecution version, the deceased was strangulated in the night of 21.10.2007