Case: Ravinder Parkash &amp; Another Vs. State of Haryana

2. Briefly stated the prosecution case against the appellants is:The deceased Chander Has and the appellants were related. They had somedispute in regard to some property, therefore, the prosecution has alleged that the appellants on 14.4.1993 took away the deceased from his house in the presence of his wife Birmati examined before the trial court asEver since then the said Chander Has was not seen alive. It is stated that on 17.4.1993 saidalong with a relative of Chander Has, namely, Dharambir Singhwent to the Police Station at Sampla and submitted a written application to the SHO in regard to missing of the said Chander Has. It is the further case of the prosecution that though the SHO of the said Station by name Chand Mohammad, ASI recorded a complaint and registered the same in the daily diary of the Station did not take up any investigation as the said complaint did not make out any cognizable offence. On 18.4.1993 another police officer of the said Station by name Gian Singhon seeing the said complaint of PWs.2 and 8 took up investigation and in that process he went near the village called Khalawar where he was met by one Attar Singh,of the village who told him that a dead body of a young man had been found under some Kikar trees at a nearby place. On getting this information the said investigating officerproceeded to the said place along with two relatives of Chander Has by name Raghubirand Jai BhagwanOn reaching the said place they saw a dead body which was in a highly decomposed state. The same was identified by PWs.3 and 4 as that of their relative Chander Has. The prosecution then alleges that on the body being identified and completing the inquest at the place where the body was found the same was sent for post mortem examination. It is relevant to note here that at the time of the inquest of the dead body, no external injuries were noticed. Thereafterrecorded the statements of PWs.3 and 4 at the spot where the body was found and recorded the statement ofat her house as also of one Kehar Singhwho according to prosecution has seen the deceased in the company of the appellants in the bazaar when he was walking there on the evening of 14.4.1993. The prosecution then states on getting the said informationsearched for accused persons and was unable to arrest them immediately. From the material on record, it seems that appellant No.1 was arrested on 19.4.1993 whereas appellant No.2 who was then serving in the Army, was found in Sikkim at the place where he was posted. He was arrested from there on 14.6.1993. In the meanwhile, the investigating agency on a statement allegedly made by appellant No. 1 recovered aweapon "Gaiti" as also a motorcycle which the prosecution alleges was used by the appellants in taking away the deceased.3. On receipt of the post mortem report from the doctorwho had opined that the deceased had died a homicidal death, having suffered stab injuries which could have been caused by a weapon like Gaiti recovered from appellant No.1 the appellants were charged for the murder of Chander Has and were tried as stated above.4. The defence of the appellant before the Sessions Court was one of complete denial.5. The Sessions Court on a consideration of the evidence produced by the prosecution came to the conclusion that the prosecution has established from the evidence ofthat the appellants had taken away the deceased from his house on 14.4.1993 and thereafter he was never seen alive. It also accepted the prosecution case that on 17.4.1993 PWs. 2 and 8 had gone to the Police at Sampla and had given a written application to the officer thenof the Police Station who had recorded a complaint in the daily diary of the Police Station as to the disappearance Chander Has. The Sessions Court also accepted the evidence of PWs. 2, 4, and 5 who according to it had identified the dead body as that of Chander Has relying on the medical evidence came to the conclusion that the Chander Has died a homicidal death. The court also accepted the motive suggested by the prosecution and thereafter relying on the recovery of the Gaiti and the motorcycle, as also the false defence allegedly set up by the appellants in the trial, came to the conclusion that the prosecution has established its case, even though based on circumstantial evidences beyond all reasonable doubts, hence, found the appellants guilty of the offence charged and sentenced them to imprisonment for life under Section 302 read with Section 34 and also imposed a fine of Rs. 5,000 in default of which the appellants were further sentenced to RI for one year.

Reasoning:
6. The High Court on appeal, in our opinion, in a very brief discussion of the evidence concurred with the finding of the trial court. In this process it noted that the last seen evidence of PWs.2 and 5 inspires full confidence and the same is fully supported by Daily Entry No. 7 at Sampla Police Station dated 17.4.1993. It also came to the conclusion that the motive put forth by the prosecution stood fully established. According to the High Court, the appellants in the guise of settling their dispute had taken away the deceased on 14.4.1993. The High Court also held that the defence taken by the appellants cannot be relied upon and on this basis dismissed theher evidence before the Court she did not mention who told her this fact in the bazaar. Then she states that after hearing this news she went to house and gave this information to other members of the family and in the company of PWs.3 and 4 she went to the place where the dead body was lying and identified the said dead body as that of her husband. She specifically states that Police came there later and that she had identified the dead body earlier. During the course of examination she further elaborated this aspect of her evidence by stating that "After identifying the dead body I went to the police station and told the Police about the fact". This piece of her evidence runs counter to the evidence ofas noted already. The above evidence ofthe Investigating Officer as to the absence ofat the place where the dead body was found is also supported by the evidence of PWs. 3 and 4, who also did not state anything about the presence ofat the time and place where the dead body was found. As a matter of fact,Raghubir who is the uncle of the deceased specifically states thatwas not called to the place where the dead body was found. From the above evidence, it is clear thatfor reasons better known to her has chosen to give a palpably untrue version as to her going to the place where the dead body was found and identifying the same, then going to the police station and informing the same. Added to this we notice that there is a suggestion made to this witness by the defence, which of course, is denied bythat on 14.4.1993 she was not at home since she was attending to a very close friend of her husband who had undergone an eye operation in a nearby eye camp, therefore, she could not have seen, the going away of her husband with the appellants. From the above discussion of the evidence ofwe find thathas not come out with the true version of the case and the courts below have not examined these discrepancies, improvements and improbabilities in her evidence while accepting the same.It is the prosecution case that in regard to missing of Chander Has PWs 2 and 8 came to the Police Station at Sampla on 17.4.1993 at about 8 a.m. in the morning and lodged a missing persons complaint. The evidence has very strongly questioned this part of the prosecution case. In spite of the same the prosecution has failed to examine ASI Chand Mohammad who according to it had recorded the statements of PWs 2 and 89 and also entered the complaint in the daily register of the station. In our opinion, this entry has not been proved beyond reasonable doubt.has not stated anything about this fact in her evidence. PW.8 who is the other person who accompanied PW.2 to the Police Station on 17.4.1993 has not supported the prosecution case and he was treated as hostile andIn this background, the non examination of ASI Chand Mohammad creates considerable doubt as to the prosecution case. Therefore, we find it difficult to accept the prosecution case as to the complaint of 17.4.1993 which cannot befrom a total reading of the evidence of the doctor, it is clear that it was not possible for anybody to have identified the dead body from the ears and nose of the deceased because of the condition of decomposition. Therefore, what remains is only the clothes that was found on the dead body of the deceased. It is to be noted neitherin their evidence has stated what clothes Chander Has was wearing when he went with the appellants.has not given any reason for identifying the clothes of the deceased.who is also a relative of Chander Has has not identified the clothes of Chander Has. Therefore, identification of the dead body byby the clothes cannot be accepted. Here, we also notice even according tothe wife of Chander Has, viz.had not identified the dead body. Therefore, we find it not safe to reply upon the evidence ofin regard to identification of the body. That apart it has come in evidence that in the complaint filed on 17.4.1993 before the Police Station it is mentioned that the height of the missing Chander Has was 5.7" whilethe doctor who specifically measured the dead body has in unequivocal terms stated that the height or the length of the dead body was 5.10". This is also a material discrepancy that could be noticed in the identification of the dead body. From the discussion made herein above, we are of the opinion that the prosecution has failed to establish that the dead body found by the Police on 18.4.1993 was that of missing Chanderis true normally this Court would not substitute its subjective opinion of the evidence with that of concurrent findings of the two courts below. However, having considered the findings of the courts below, we have noticed that the trial court, though by a lengthy judgment has found the appellants guilty, we have found that finding is not supported by the material on record. Therefore, we have considered the prosecution evidence independently and have disagreed with the same for reasons mentioned in this judgment. We have not done this by merely substituting our subjective satisfaction but we have done the same for reasons based on material on record. We have found that no reliance can be placed on the evidence of PWs. 2, 3 and 4 and the basis for the reasons given by us though available on record have not been considered by the trial court. So far as the High Court is concerned, we need not give any additional reasons for differing from the same because the impugned judgment of the High Court is only a summary of the judgment of the trial court.15. For the reasons stated above,we find thatthe prosecution case, which is purely based on circumstantial evidence, has not been established beyond all reasonable doubts. Once we discard the evidence of the prosecution in regard to its theory of "last seen together", identification of the dead body, and filing of the complaint on 17.4.1993, the links in the chain of circumstances get broken, hence, the chain of circumstances will not be complete. Then assuming for the sake of argument that the prosecution has been able to establish the recovery of the weapon, which in any case had no blood stains on it, and the motorcycle, by themselves would not complete that chain so as to be consistent with no other hypothesis, except the guilt of the accused. Therefore, we find it unsafe to rely upon the prosecution case.