Criminal Appeal No.736-DB of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: 6.5.2008 Deepak Kumar … Appellant versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE UMA NATH SINGH HON’BLE MR. JUSTICE A.N.JINDAL Present: Ms.Pooja Chopra, Advocate, for the appellant. Ms.Gurveen H.Singh, Addl.AG, Punjab. UMA NATH SINGH, J. This criminal appeal arises out of a judgment dated 23.8.2006, passed by learned Sessions Judge, Faridkot, in Sessions Case No. 08/17.3.2005, convicting accused-appellant Deepak Kumar of offences under Sections 302 IPC and 450 IPC and sentencing him to undergo RI for life imprisonment with a fine of Rs.50,000/-; in default of payment of fine, to undergo further RI for 3 years on the first count, and RI for 10 years with a fine of Rs.2,000/-; in default of payment of fine, to undergo further RI for 1 years on the second count, while recording acquittal of two other charges under Sections 392 IPC and 460 IPC. However, co-accused Asman Ahmad was acquitted of all these charges. As per prosecution case, police recorded a statement of Zia Lal son of Jagan Nath (PW3) on 11.11.2004 to the effect that his father died about 20-30 years back. His widow mother Gunna Devi, aged about 65-70 years and his maternal aunt Laxmi Devi started living together on the third floor of their house situated in Old Grain Market, near Bansal Street, Kotkapura. Complainant was living separately for the last over 15 years Criminal Appeal No.736-DB of 2006 2 from his mother. His brother was also living in a separate rented house for the last about 14-15 years. His sisters Nirmala Devi, Santosh Rani and Krishan Devi were also living at different places in their matrimonial homes. None of them had been given any portion in share of the aforesaid house by their mother. His mother and maternal aunt were also receiving rent from the tenants of the ground floor and first floor of that house. As their aunt Laxmi Devi was a sharp tongued and rough lady, complainant and his brother had separated themselves. They were not even on visiting terms with these ladies. On the ground floor of that house, one Ram Kumar Jain was running his brokerage shop, whereas on the first floor, one Ramesh Kumar was having a computer shop. It is further stated that on 11.11.2004, when complainant Zia Lal was present in his house, at about 9.00 AM, one Om Parkash informed him that the stairs leading to the house of his mother were lying locked and also enquired as to whether she has gone somewhere. This information created worries in the mind of complainant, therefore, he made enquiries from tenants Ramesh Kumar and Jain Sahib, Commission Agent, and also from Amit Chand, a tea vendor, who showed ignorance about the whereabouts of these ladies. Thereafter, the complainant reached the residential place of his mother on third floor through the shop of Mangal Beemewala and found that both the rooms and kitchen were lying open. When he entered the bed room, he saw the dead body of his aunt Laxmi Devi lying on bed with injury from some sharp edged weapon on her neck, while his mother Gunna Devi lay dead on the ground having fallen from bed with a large size incised wound from a sharp edged weapon on her neck. He also noticed presence of sufficient quantity of blood near the dead bodies and their clothes were also smeared with blood. Complainant became Criminal Appeal No.736-DB of 2006 3 nervous and informed the neighbourers about this incident. He started for Police Station to lodge a report but on the way, he met with SHO Nek Chand and gave a statement. According to him, his mother Gunna Devi and maternal aunt Laxmi Devi were killed in the last night by some unidentified persons, who entered their house and caused them injuries as narrated herein above. He also stated that perhaps. his aunt had differences with someone, as a result of which both these ladies were done to death. Statement of complainant was read over to him, which he admitted to be correct and then signed. Accordingly, FIR No. 173 under Section 302 IPC was registered on 11.11.2004. Inquest proceedings of the incident were conducted on the spot and then, both the dead bodies were sent to hospital for postmortem examination. During the course of investigation, blood stained bed sheet, shawl and double bed quilt were taken into possession vide separate and different recovery memos. Police also got the scene of occurrence photographed and found two railway tickets bearing numbers 65633 and 65634 for Ambala to Bathinda, and a pocket diary in the shelf/almirah of the room, which were taken into possession. Both accused persons were arrested later and during the police custody, accused-appellant Deepak Kumar also made a disclosure statement. Pursuant thereto, a blood stained karad (kitchen knife) was recovered from near a railway track. During the course of further investigation, one Sanjeev Kumar son of Panna Lal (not examined) also mentioned the names of these accused persons. On completion of investigations and collection of incriminating materials, a challan was put up against accused-appellant Deepak Kumar and co- accused Asman Ahmad (since acquitted), who were charged with the commission of offence as the aforesaid. When the charges were also read Criminal Appeal No.736-DB of 2006 4 over and explained to accused persons, they pleaded not guilty and claimed trial. Prosecution side, in order to establish the case, examined as many as 18 witnesses, namely, Dharam Singh, Draftsman (PW1); Dr. k.K.Aggarwal (PW2); Zia Lal, complainant (PW3); Head Constable Ashok Kumar (PW4); Constable Jagjit Singh (PW5); Kanwaldeep Singh, Municipal Councillor (PW6); Bhushan Kumar (PW7); Constable Sukhdarshan Kumar (PW8); Constable Jagsir Singh (PW9); Head Constable Paramjit Singh (PW10); ASI Roop Singh (PW11); Constable Charanjit Lal (PW12); MHC Gurjit Singh (PW13); SI Nek Chand (PW14); Typist Sandeep Gupta (PW15); SI Harbhajan Singh (PW16); Inspector Manminder Singh (PW17), and Raja Ram, Booking Clerk, Railway Station, Ambala (PW18). From the evidence of aforesaid witnesses and having examined the explanation given by the accused under Section 313 Cr.P.C. in the Court, learned trial Court while believing in the prosecution evidence, particularly, the recovery memos of weapon of offence and a diary in the hand-writing of accused Deepak Kumar held him guilty of offence on two counts as aforesaid, while recording acquittal of co-accused Asman Ahmad after giving him the benefits of doubt. Regarding charges under Sections 392 IPC and 460 IPC, as prosecution side could not produce any evidence, hence, both the accused persons were acquitted on these counts. Heard learned counsel for parties and perused the record. Learned counsel for appellant submitted that this is a case of no evidence. Kanwaldeep Singh, Municipal Councillor (PW6) did not support the factum of extra judicial confession. Sanjeev Kumar, who gave the names of accused persons, was also not examined, and given up as won Criminal Appeal No.736-DB of 2006 5 over. Nature of weapon, recovered pursuant to the disclosure statement from a railway track, was only a kitchen knife, and assuming the recovery to be true, this would be a weak piece of evidence. Recovery of a hand written diary and railway tickets of ordinary class, would also not connect the accused-appellant with this incident. Further, the blood group of blood found on the weapon of offence could not be determined by FSL as per the report. On the other hand, learned State counsel submitted that irrespective of the fact that witness Kanwaldeep Singh (PW6) turned hostile and did not support the extra judicial confession made before him by accused person, SI Harbhajan Singh (PW16) in his cross-examination has denied a defence suggestion that the accused did not make a confession nor any recovery was effected at the instance of accused. Bhushan Kumar (PW7) has also supported the recoveries. Learned State counsel supported the prosecution case mainly on the ground of recovery of weapon of offence and a diary with the hand writing of accused-appellant Deepak Kumar, who refused to give specimen signatures on being asked. We have carefully considered the rival submissions and closely examined the evidence on record. This case is based on circumstantial evidence which are summarised as: “(i) accused persons were last seen going to the residence of deceased ladies: (ii) accused Deepak Kumar made extra-judicial confession before Kanwaldeep Singh, Municipal Councillor (PW6); (iii) weapon of offence, i.e., a kitchen knife was recovered on pointing out by accused Deepak Kumar; Criminal Appeal No.736-DB of 2006 6 (iv) that knife was found to be stained with human blood; (v) there was a motive for commission of offence, and (vi) two railway tickets of ordinary class for Ambala to Bathinda were also recovered.” For conviction on circumstantial evidence, the conditions required to be fulfilled are as: “(1) The circumstances from which the conclusions of guilt is to be drawn should be fully established and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”; (2) The facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say, they should not be explained on any other hypothesis except that the accused is guilty; (3) The circumstances should be of a conclusive nature and tendency; (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.” In the light of all the aforesaid conditions as enunciated and reiterated by the Hon'ble Apex Court in the judgments, we would examine Criminal Appeal No.736-DB of 2006 7 the circumstances as set up by the prosecution in order to establish its case. This is alleged that the accused persons were seen going to the premises under the occupation of deceased ladies, by one Sanjeev Kumar. However, that Sanjeev Kumar was not produced in witness box and only the usual explanation that he was won over has been given by the prosecution. There is no other material on record to establish that the accused persons were last seen going to the residence of deceased. Thus, this incriminating circumstance is not found to be conclusively proved. Regarding the extra- judicial confession, Kanwaldeep Singh, Municipal Councillor (PW6) resiled from his earlier version and he did not support the prosecution case in regard to making of any such statement before him. If this witness has not supported the making of an extra-judicial confession, testimonies of Bhushan Kumar (PW7) and SI Harbhajan Singh (PW16) in regard to the making of extra-judicial confession before witness Kanwaldeep Singh (PW6) would not carry any significance. Moreover, the testimonies of these two witnesses are relevant only to the extent of recoveries. Thus, this circumstance is also not found to be proved. So far as the recovery of weapon is concerned, looking to the nature and depth of injuries and the sketch of knife and size of weapon, besides circumstances attending the recovery, we are not convinced that the weapon alleged to be recovered on pointing out by the accused persons, was used in committing this offence. That apart, this is stated that the weapon was recovered from an open space and the blood group of blood stains noticed on the weapon also could not be determined. We also notice that after the weapon was sent to FSL for examination, it was returned and the prosecution has failed to give an explanation as to why it was returned. In this background, the FSL report Criminal Appeal No.736-DB of 2006 8 regarding the presence of human blood without determining the group of blood, would not conclusively connect this weapon with the offence. Coming to the motive, prosecution has tried to establish this circumstance on the basis of recovery of a diary from the scene of occurrence, alleging that it was written in the hand writing of accused Deepak Kumar. We have carefully noticed the entries in diary relating to the loan allegedly taken by the accused-appellant from the deceased. Strangely enough, only that entry of diary has been signed by the accused and not any other entry. We see no reason for the accused to have signed only one page of his diary while leaving other pages with some entries without initials. Moreover, the page which immediately preceded the page with alleged loan entry is found to be left blank. Further, this is not a daily diary but only an account book which contained different types of entries. Thus, the motive part of prosecution case is also not proved. For the same reason, credibility of recovery of a diary with the hand writing of accused and railway tickets for Ambala to Bathinda also becomes doubtful. Thus, the accused- appellant could not have been connected only on the basis of such types of incriminating materials. This looks strange as to why the accused persons retained railway tickets of ordinary class for a longer period and even if these tickets were recovered, connection of accused with them was also not established. This is not a prosecution case that accused persons had run away from the scene of occurrence due to demand of loan amount by the deceased ladies, even if it is believed that a loan had been given to them. Thus, the links of circumstantial evidence are not individually proved nor is the chain of circumstances complete to sustain the impugned judgment of conviction and sentence. Criminal Appeal No.736-DB of 2006 9 In view of the aforesaid re-appreciation of evidence, we are of the view that the impugned judgment is not sustainable. It is, thus, set aside, and accused-appellant Deepak Kumar is acquitted of the charges under Sections 302 IPC and 450 IPC. This criminal appeal is, thus, allowed. If accused-appellant Deepak Kumar is not required in any other case, he shall be released forthwith. ( UMA NATH SINGH ) JUDGE 6.5.2008 ( A.N.JINDAL ) mohinder/pk JUDGE Whether this judgment be referred to Reporter? Yes/No