Crl. Appeal No.25-DB of 1999 -1- .... IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. …. Crl. Appeal No.25-DB of 1999 Decided on: 27th February, 2008. Mewa Singh etc.. … Appellants Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE S. D. ANAND Present:- Mr. R.S. Cheema, Sr.Advocate with Mr. Jasdev Singh, Advocate for the appellants. Mr. P.S. Sullar, Deputy Advocate General, Haryana for the respondent. … S.D. ANAND, J. The appellants are in appeal against their indictment, for the offences under Sections 147, 364 and 302 read with Section 149 IPC. They were sentenced as under:-. Sr. No. Under Section Sentence 1 302 read with section 149 IPC Life imprisonment and to pay a fine of Rs.5000/-. In default of payment of fine, the defaulter accused shall further undergo rigorous imprisonment for one year. 2 364 IPC Rigorous imprisonment for ten years and to pay a fine of Rs.3000/-. In default of payment of fine, the defaulter/ accused shall further undergo rigorous imprisonment for 6 months. 3 147 IPC Rigorous imprisonment for one year and to pay a fine of Rs.1000/-. In default of payment of fine, the defaulter /accused shall further undergo rigorous imprisonment for three months. PW Narsi Dass, Banarsi and Parsan (not examined at the trial), Krishan and Darshan (deceased) are real brothers inter se and are residents of Crl. Appeal No.25-DB of 1999 -2- .... village Bithmara. Krishan and Parsan are joint in residence; while the other two Banarsi, PW3 Narsi Dass and Darshan (deceased) were separate in mess and residence. PW3 Narsi Dass is working as a Munshi under the Gram Panchayat to supervise the construction of a village school which (construction) started in September 1997. Deceased Darshan was running a vegetable shop in the village. On the relevant day, Narsi Dass had taken the buffaloes belonging to his brother Darshan for the purpose of grazing. For that purpose, at about 9 AM, he was present at the Hansawala minor, a canal located within the area of that village. At that time, Darshan came to that side riding a tractor belonging to and driven by Maha Singh Lambardar. A Trax jeep brought the tractor to a halt by overtaking and blocking the route. It was being driven by appellant Mewa Singh. Appellants Ram Kumar, Sube Singh, Chandi Ram, Mohinder Singh and Subhash, all belonging to village Bithmara, were the other occupants of that jeep. All of them forced Darshan to get down from the tractor. The appellants initially slapped Darshan and, then, dragged him in to the Trax jeep and sped away towards Barwala. On the offence being notified to the police by PW 3 Narsi Dass vide application Ex.PB, the police of Uklana got into action. The dead body of Darshan was found lying by the road side at a distance of about 5 Kms from Barwala (towards Uklana). The body bore dragging marks on the elbows, shoulders and back and the head had been crushed. The above quoted prosecution version was testified at the trial by PW1 Satish Kumar, PW2 Constable Dhoop Singh, PW 3 Narsi Dass, PW 4 Girish Kumar, Draftsman, PW5 Constable Karambir, PW 6 Dr.P.S. Dhawan, PW 7 SI Ramesh Kumar, PW8 SI Rajender Singh and PW 9 Constable Mahi Pal Singh. Crl. Appeal No.25-DB of 1999 -3- .... PW1 Satish Kumar is a professional Photographer at Barwala since the year 1981 who runs his shop under the name and style of Punam Photo Studio. He had photographed the spot vide photographs Ex.P4 to P6, (P1 to P3 being their negatives). PW 2 Constable Dhoop Singh, PW5 Constable Karambir and PW9 Constable Mahi Pal gave testimony in the form of affidavits Ex.PA, Ex.PJ and Ex.PR respectively. PW 3 Narsi Dass is the first informant and the star witness of the prosecution. PW4 Constable Girish Kumar, a draftsman in the employment of the police and posted at Fatehabad, had prepared the scaled site plan Ex.PG of the spot on the pointing of Narsi Ram PW. PW 6 Dr. P.S. Dhawan, SMO, General Hospital, Hisar (along with other two members of the Medical Board namely Dr. Daya Nand and Dr. J.S. Bhatia) conducted the post mortem examination on the dead body of Darshan Lal and had found the following injuries on the dead body:- “1. Head and upper part of face above and whole of skull was crushed underlying bones were fractured in multiple pieces. Brain matter was coming out of mould. Clotted blood was present at base of skull. Fracture ends of bones show infiltration of blood. Brain matter was crushed at places. 2. A reddish abrasion 6 cm x 4 cm on back of left shoulder. 3. Multiple abrasions varying in sizes from 2 cm x 1 cm to 15 cm x 10 cm on whole of the back. 4. Two abrasions 2 cm x 1 cm and 1 cm x 1 cm on back of left elbow. 5. An abrasion 3 cm x 2 cm on left glutial region. 6. An abrasion 4 cm x 2 cm on just below the left knee joint. Crl. Appeal No.25-DB of 1999 -4- .... 7. An abrasion 15 cm x 8 cm on right leg in upper half on anterior lateral aspect.” On further dissection, infiltration of blood was present in sub cutaneous tissues. Apart from finding that the rigor mortis was present and the post mortem staining was also present, the Board opined that the death had occurred on account of crush injury of the skull. All the injuries were otherwise found to be ante mortem in character and sufficient to cause death in the ordinary course of nature. It was also opined by Dr. P.S. Dhawan that the possibility of injury No.1 having been caused by crushing and that of possibility of injuries Nos.2 to 7 having been caused by dragging could not be ruled out. PW 7 Sub Inspector Ramesh Kumar, then posted as SHO, Police Station, Uklana, had partly investigated this case and also filed the report under Section 173 Cr.PC. PW 8 SI Rajender Singh is the main Investigating Officer of the case. Ex.PS and Ex.PT are the reports of the Forensic Science Laboratory. The appellants raised a pure and simple plea of false implication in the case by averring as under:- Plea of Mewa Singh appellant :- “ I am innocent. My daughter was abducted by Parsan with connivance of his brother’s wife. She was taken to Bomnay and raped and she was recovered from there. Parsan was arrested in that case. Darshan died in a vehicular accident near Ambala and Barwala police initiated the proceedings when the brother of the deceased came to know about the death of Darshan in vehicular accident. They falsely implicated me and my co-accused who are Crl. Appeal No.25-DB of 1999 -5- .... my close relations for putting pressure upon us not to give evidence against Parsan in the rape case of my daughter.” Plea of Ram Kumar appellant “ I am innocent. Daughter of Mewa Singh was abducted by Parsan with connivance of his brother’s wife. She was taken to Bombay and raped and she was recovered from there. Parsan was arrested in that case. Darshan died in a vehicular accident near Ambala and Barwala police initiated the proceedings when the brother of the deceased came to know about the death of Darshan in vehicular accident, they falsely implicated me and my co-accused who are my close relations for putting pressure upon us not to give evidence against Parsan in the rape case of daughter of Mewa Singh.” Plea of Chandi appellant “ I am innocent. Daughter of Mewa Singh was abducted by Parsan with connivance of his brother’s wife. She was taken to Bombay and raped and she was recovered from there. Parsan was arrested in that case. Darshan died in a vehicular accident near Ambala and Barwala police initiated the proceedings. When the brother of the deceased came to know about the death of Darshan in vehicular accident, they falsely implicated me and my co-accused who are my close relations for putting pressure upon us not to give evidence against Parsan in the rape case of daughter of Mewa Singh.” Crl. Appeal No.25-DB of 1999 -6- .... Plea of Mahinder Singh appellant “ I am innocent. Daughter of Mewa Singh was abducted by Parsan with connivance of his brother’s wife. She was taken to Bombay and raped and she was recovered from there. Parsan was arrested in that case. Darshan died in a vehicular accident near Ambala and Barwala police initiated the proceedings. When the brother of the deceased came to know about the death of Darshan in vehicular accident, they falsely implicated me and my co-accused who are my close relations for putting pressure upon us not to give evidence against Parsan in the rape case of daughter of Mewa Singh.” Plea of Sube Singh appellant “ I am innocent. Daughter of Mewa Singh was abducted by Parsan with connivance of his brother’s wife. She was taken to Bombay and raped and she was recovered from there. Parsan was arrested in that case. Darshan died in a vehicular accident near Ambala and Barwala police initiated the proceedings. When the brother of the deceased came to know about the death of Darshan in vehicular accident, they falsely implicated me and my co-accused who are my close relations for putting pressure upon us not to give evidence against Parsan in the rape case of daughter of Mewa Singh.” Plea of Subhash appellant “ I am innocent. Daughter of Mewa Singh was abducted by Parsan with connivance of his brother’s wife. She was taken to Bombay and raped and she was recovered from there. Parsan Crl. Appeal No.25-DB of 1999 -7- .... was arrested in that case. Darshan died in a vehicular accident near Ambala and Barwala police initiated the proceedings. When the brother of the deceased came to know about the death of Darshan in vehicular accident, they falsely implicated me and my co-accused who are my close relations for putting pressure upon us not to give evidence against Parsan in the rape case of daughter of Mewa Singh.” No evidence was led in defence. We have heard Mr. R.S. Cheema, Senior Advocate who was assisted by Mr. Jasdev Singh, Advocate, for the appellants. The presentation on behalf of the State has been made by Mr. P.S. Sullar, learned Deputy Advocate General, Haryana. We find, on appraisal of the material obtaining on the file, that the prosecution has not been able to prove the case against the appellants beyond reasonable doubt; that the prosecution has withheld the genesis of the case and that the least that can be said about the manner of investigation is that it was incompetent and shoddy. We buttress our observations by the facts indicated hereunder:- It requires notice, at the very out set, that a perusal of the file makes it abundantly apparent that the relationship between the parties to the present prosecution was uneasy in view of the fact that Parsan, a brother of the deceased and also PW 3 Narsi Ram, was already incarcerated in jail on a charge of having kidnapped Mst. Indro, a real sister of appellant Mewa Singh (The other appellants are, as per their own averment in the course of statement under Section 313 Cr.PC, close relations of Mewa Singh). Crl. Appeal No.25-DB of 1999 -8- .... By the very nature of things, motive is a double edged weapon. By indicating it, we are conscious that we are stating the obvious. However, the reiteration of that factual and legal position is appropriate at this stage as it would enable proper appreciation of the controversy. Narsi Dass is the only witness who testified that his brother Darshan was hit, dragged and taken away by the appellants in the presence of Maha Singh, who was accompanying Darshan Singh on the tractor. Aforesaid Maha Singh was not examined at the trial and was given up by the prosecution as having been won over by the accused. The prosecution case, thus, has the (uncorroborated) testimony of only PW 3 Narsi as the foundational premise to implicate the appellants on the charge with which they stand charged/convicted. Thus, the conscience of the Court must be satisfied that Narsi Dass is a truthful witness. He told the Court that his statement was not recorded by the police when he gave application (Ex. PB) to the police of Uklana. With a view to be able to explain his presence at the spot, he stated that he was a Munshi engaged to supervise the ongoing construction of a school building, and that the construction work had been stopped in January/February 1997 and further that it re-started in September 1997. The impugned occurrence is dated 9.8.1997. He initially testified that he was working as a Munshi in the employment of a contractor and that payment was being made to him by the contractor. However, he beat a hasty retreat to state that he was not in the employment of a contractor and that he was employed by the Gram Panchayat which (Gram Panchayat) only was paying him. For a clinching finding, it would have been proper for the investigating agency to get hold of the Panchayat record to find out the correctness or otherwise of the aforementioned averment made by PW Narsi Crl. Appeal No.25-DB of 1999 -9- .... Dass. By the very nature of things, the payments being made by the Panchayat must have been documented. The obtaining of that record would have clinchingly proved the correctness or otherwise of the averment made by PW3 – Narsi Dass about the ceasure of the construction during the period January-February 1997 to September 1997. If the Panchayat record proved the correctness of the averment made by PW 3 Narsi Dass, his presence (for purpose of grazing the cattle of his brother Darshan Singh) would have been natural and plausible. If, however, it was found that there had been no ceasure of construction, it would have indicated that PW 3 Narsi Dass was not a truthful witness in any case because he would not have had any occasion to be available at the spot at the relevant point of time and for the purpose aforementioned. The investigating agency clearly faulted in not getting hold of the Panchayat record in the context. As per the defence plea, the deceased died in a vehicular accident for which they are not accountable. That plea would prima-facie appear to be borne out by the fact that a crush injury was found on the head of the deceased. In the context of fixture of accountability therefor, we would examine the correctness or otherwise of the averment on behalf of the appellants that the police of Barwala had already appeared in picture and the police of Uklana tried to suppress that fact. There is indeed adequate material to support the view advocated on behalf of the appellants. PW 3 Narsi Dass told the Court that none was present by the side of the dead body when he accompanied the police to that place. He is totally falsified on that point by the testimony of Investigating Officer who categorically testified that a Chowkidar was available near the dead body at the time the police party visited it in the company of Narsi Dass PW3. It is in this context that the Crl. Appeal No.25-DB of 1999 -10- .... testimony of photographer gains added importance. The photographer, a Barwala based private professional, testified on oath that he went to the spot on 9.8.1997 at about 7/8.00 A.M. The request made by the prosecution to declare him hostile was allowed by the Court with the observation that it might well be that this witness was trying to help out the defence by giving that timing. We would presently refrain from commenting upon the correctness or otherwise of the approach of the learned Trial Judge in having allowed him to be cross-examined by the prosecution. It is otherwise apparent from the statement (recorded under Section 161 Cr.PC) that this witness did not indicate the time at which the photographs had been taken. In the course of cross-examination, this witness denied having been called to the spot at about 2 PM and his having taken the photographs in the after noon and not in the morning. He clarified that a constable from Barwala had summoned him from his shop. If what he says is correct, it shall have to be held that the murder had come to light long before the police of Uklana claims to have appeared into the picture. The averment made by the witness to the above effect that he had been summoned by a constable of Police Station, Barwala, could be clinchingly falsified by the examination of some police official from Police Station, Barwala. A perusal of the Roznamcha of that police station would have made things clear either way. The prosecution has refrained from producing that record. The reason for withholding the record is inexplicable. This aspect is to be appreciated in the light of the fact that the dead body was found lying on the edge of the metalled road which is otherwise a State highway and a busy road. In the light thereof, it is illogical for the prosecution to argue that the dead body lay unnoticed till the police of Uklana came into the picture. Crl. Appeal No.25-DB of 1999 -11- .... The controversy about whether the Barwala police did or did not have prior information about the impugned occurrence, could further be solved if the prosecution had placed on record the VT message which the Investigating Officer claimed to have sent to the Barwala police. After having initially stated that he did send a VT message to the Police of Barwala, he fumbled by adding that the VT message was not clear. He did not elaborate further in the context. The conduct of the Investigating Officer, in the context of the investigation of the case, also leaves much to be desired. He initially stated “I had come to know at the police station that Darshan was taken towards Barwala”. In continuation of that statement, he also stated that “Despite receiving information from Narsi that Darshan was taken towards Barwala, I did not go for his rescue towards Barwala but went to Hansawala minor.” He beat a hasty retreat to state in the next sentence that it was only at Hansawala Bridge that it came to his notice that Darshan had been taken towards Barwala. In support of that retreat, he proceeded to aver that he did not enquire from Narsi in the police station about the direction towards which Darshan had been taken by his abductors. When called upon to indicate how he would have re-acted if the fact of Darshan Singh, having fun taken towards Barwala had to come to his notice in the Police Station itself, the Investigating Officer stated that “I do not know what would have been my reaction if I had come to know in Police Station, Uklana itself that Darshan had been taken towards Barwala. I do not know, if in that situation I would have gone first towards Barwala or not or would have gone to Hansawala bridge.” This police official, in the process of hasty retreat, plainly forgot that it is indicated in Ex.PB itself that Darshan had been taken by his abductor towards Barwala. Crl. Appeal No.25-DB of 1999 -12- .... The effort made by the Investigating Officer to thereafter salvage his professional conduct does not succeed in spite of his having conceded, as correct, a suggestion that his immediate re-action would have been to go to Barwala side for recovery of Darshan. The doubt about the presence, at the spot, of Narsi Dass PW3 further deepens when we notice that his statement (to the effect that “I had shown the place where the tractor was stopped with the jeep to the police and to the draftsman”) is not borne out by a perusal of scaled site plan Ex.PF which had been prepared by PW 4 Girish Kumar Constable draftsman. As would be apparent from perusal of Ex.PH, it is only the following explanatory note which appeared under it : “ Explanatory Notes: Mark A: Indicates the place, where the dead body of Darshan Lal was stated to be lying with crushed head by the tyre of the jeep.” If PW3 Narsi Dass had actually shown the places indicated by him to the draftsman constable, there is no reason why those would not have figured in Ex.PH. The material obtaining on the file makes the presence of PW 3 Narsi Dass at the relevant time doubtful. We may also notice here that the only other eye-witness to the kidnapping of Darshan by the appellants was Maha Singh. As already indicated in an earlier part of this judgment, he was given up by the prosecution as having been won over by the accused. We do not, thus, have the advantage of his testimony. In a such like eventuality, it would have been appropriate for the prosecution to put Maha Singh in the witness box and let the Court arrive at its own conclusion with regard to the winning over or Crl. Appeal No.25-DB of 1999 -13- .... otherwise of that witness. By having taken upon itself the exclusive jurisdiction to decide his loyalty, the prosecution has denied to this Court an opportunity to evaluate his evidence. That evaluation by the Court was a must particularly when the presence of PW 3 Narsi Dass at the spot and at the relevant point of time has been found to be doubtful. There is material on the file to prove that the Trax jeep (by which the appellants had travelled to the spot and escaped as well) was owned by Jai Pal son of Balbir Singh. He has not been cited as a witness. It is obviously he only who could indicate the whereabouts of his jeep at the time the impugned crime had taken place. Further, it is he only who could clarify the circumstances under which he parted with that jeep in favour of the appellants. His statement could nail the appellants. It could be the other way as well. The refrain on the part of the investigating agency in examining Jai Ram at the trial justifies the raising of an inference adverse to the interest of the prosecution. The only conclusion that can be culled out from the discussion in the foregoing paras is that the prosecution has not been able to prove the case against the accused to the hilt. The finding of indictment recorded by the learned Trial Judge is not sustainable. The appeal shall stand allowed. The judgment ( of conviction) and order (of sentence) recorded by the learned Trial Judge shall stand set aside. As sentinels of the cause of justice, we deem it a part of our duty to observe that the concerned authorities need to do some talking (internally or otherwise) to raise the level of investigation in murder cases. It is to state the obvious that a competent investigation would nail the real culprit and would, by a scientific approach, also exonerate an innocent person from Crl. Appeal No.25-DB of 1999 -14- .... concocted charge. In cases where the relationship between the parties to the prosecution is uneasy ( as in this case), the investigating agency would have to exert to ensure that the real culprit gets punished and the innocent is not wronged. That would be a real service to the cause of justice and, if we may say so, the society at large. We have already indicated our sense of exasperation in the context in Criminal Appeal No. 279-DB of 2005 (Makhan Singh and another versus State of Haryana), decided on 29.01.2008. We hope and trust that the concerned authorities would take notice