IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal not D-231-DB of 2009 Date of decision :
20. 12.2012 Vijender @ Bunty ...Appellant VERSUS State of Haryana ...Respondent CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE INDERJIT SINGH *** Present : Mr.Akshay Kumar Goel, Advocate, Legal Aid Counsel, for the appellant.
Mr.R.K.S.Brar, Addl.
Advocate General, Haryana, for the respondent-State.
*** INDERJIT SINGH, J Appellant Vijender @ Bunty has preferred the present appeal against the judgment and order of sentence dated 12.01.2009, passed by the Special Judge/Addl.
Sessions Judge, Panchkula, vide which he has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo rigorous imprisonment for five years under Section 302 IPC.
However, remaining accused have been acquitted.
Brief facts of the prosecution case are that FIR in the present case has been registered on the statement of Mohinder Pal Ex.PA in which he stated that on 30.04.2006, as per daily routine in Criminal Appeal not D-231-DB of 2009 [2].the morning at 7:00 a.m., he was going to shop from home on foot.
When he reached near pullia (culvert) in front of Gandhi Brick-kiln on the Kakrali road, he saw a young person lying upside down across the road on a kacha dhalan towards west, having a wound on the head with blood oozing out of it and having wound with blood and mark of rashes on the wrist of right arm and blood was also oozed out of Nos.and he was lying in the dead state.
The complainant also gave description of that person that he was wearing half sleeve shirt having blue and light yellow strips and jean pent of blue colour and is bare footed.
The complainant also stated that it appears that that unknown person has been brought in a vehicle after murdering at some outside place and thrown there.
He also stated that he informed Karan Singh of his village and Sadhu Singh, owner of the field regarding it and after leaving them on the spot when he was going to Police Post Mauli to intimate the police, police party met him in the way and his statement was recorded at 11:30 a.m.by ASI Balwant Singh.
Ruqa was sent to the police station on the basis of which FIR was registered.
Then the Investigating Officer summoned Head Constable Jagmal Singh at the spot.
Investigating Officer alongwith complainant Mohinder Singh reached the spot.
He prepared the rough site plan of the place of occurrence Ex.PD with correct marginal notes.
He lifted blood stained earth from the spot and the same was taken into police possession after preparing the sealed parcel.
Inquest proceedings were conducted and the dead Criminal Appeal not D-231-DB of 2009 [3].body was sent for postmortem examination.
Then the investigation was handed over to SHO.
Accused Hanish, Gurinder Singh and Rakesh Sharma @ Boby were arrested in June, 2006 and on interrogation, they suffered disclosure statements and got recovered mobile phone, one pair of blood stained socks, one shoe of deceased Naresh @ Nittu, blood stained seat covers etc.in pursuance of their disclosure statements and the same were taken into police possession.
Accused-appellant Vijender @ Bunty was arrested in March, 2007 and he suffered disclosure statement and got recovered one puRs.which was containing a ring having one white water coloured stone alongwith one paper and photograph of deceased Naresh in pursuance of his disclosure statement.
Statements of witnesses were recorded.
After necessary investigation, challan against the accused was presented.
On presentation of challan, copies of challan and other documents were supplied to accused under Sections 207 Cr.P.C.Finding a prima facie case against the accused, they were charged for the offences under Sections 120-B, 302 and 201 IPC.
Accused Gurinder Singh was also charged under Section 216 IPC and accused Rakesh Sharma @ Boby was also charged under Section 25/54/59 of the Arms Act.
The prosecution, in support of its case, examined PW1 Mohinder Pal, complainant, who deposed the same facts as stated before the police on the basis of which FIR was registered.
PW2 Criminal Appeal not D-231-DB of 2009 [4].Karan Singh mainly deposed that on 30.04.2006 he was informed about the dead body lying in the fields.
He came there.
Police had also came there and police obtained his signatures on memo Ex.PC.
PW3 Head Constable Jagmal Singh mainly deposed that on 30.04.2006 he was with the Investigating Officer ASI Balwant Singh.
He deposed that the Investigating Officer lifted the blood stained earth from the spot and prepared the parcel regarding the same.
PW4 ASI Balwant Singh mainly deposed regarding recording the statement of complainant and the investigation.
He stated that he, after recording the statement of complainant, went to the spot and summoned dog squad, finger print expert, SHO, Police Station Raipur Rani and photographer to the spot.
He deposed that he lifted blood stained earth and took the same into police possession after preparing the sealed parcel.
He also prepared inquest report Ex.PE.
Then Satpal Singh, SHO came to the spot and investigation was handed over to him.
PW5 Head Constable Rakesh Kumar is a formal witness.
He deposed that on 30.04.2006, he was posted as MHC in Police Station Raipur Rani.
Case property was deposited with him and he sent the same through Constable Sunil Kumar to Forensic Science Laboratory.
PW6 Constable Sunil Kumar is also a formal witness who handed over the sealed parcel to Forensic Science Laboratory.
PW7 Jyoti Bala deposed that on 12.06.2006, on receiving message from CIA-II, Sector 12, Panchkula to join the investigation, she reached near the bus stop of Sector 25 Panchkula.
Criminal Appeal not D-231-DB of 2009 [5].She met the police party headed by Sub Inspector Pawan Kumar.
They proceeded towards Ramgarh and on 'T' Point of Sector 27/28, accused Hanish led the police party to the spot and pointed out the spot where mobile of deceased Nittu was broken and thrown by accused Bunty.
The machinery of mobile phone was recovered at a distance of about 10 paces from 'T' point and body of mobile phone alongwith keypad was recovered at a distance of about seven paces from 'T' point which were taken into police possession.
She identified the said mobile.
She also deposed that on 14.03.2007, Investigating Officer had shown her one purse, one document and one gold ring having one white stone.
She identified those articles pertaining to deceased Naresh @ Nittu.
PW8 Parmod Kumar, Ahlmad of the Court of Addl.
Sessions Judge, Ambala, brought the summoned record of case FIR No.65 dated 08.03.2006, under Sections 302, 307, 120-B, 34 IPC registered at Police Station Mahesh Nagar, Ambala Cantt.
PW9 Inspector Puran Chand, SHO, Police Station Ambala City, deposed that he interrogated accused Rakesh in case FIR No.65 dated 08.03.2006, who suffered disclosure statement in that case regarding the involvement of accused Bunty, Gurinder and Hanish in the present case.
PW10 Sham Sunder is the photographer who mainly deposed regarding the photographs Ex.P3 to Ex.P5 and negatives Ex.P6 to Ex.P8.
PW11 Constable Davinder Singh brought the record pertaining to FIR No.21 dated 14.01.2006 registered under Section 379 IPC.
The said FIR was lodged by Sanjiv Rajpal Criminal Appeal not D-231-DB of 2009 [6].pertaining to theft of Accent car.
He proved the said FIR.
PW12 Sanjiv Rajpal deposed regarding the theft of Accent car.
PW13 Partap Chand Patwari mainly deposed regarding preparing of Aks Sijra.
PW14 Sub Inspector Ram Phal deposed regarding taking into police possession some documents pertaining to FIR No.65 of 2006.
PW15 Head Constable Dev Raj is a formal witness who deposited the case property to Forensic Science Laboratory.
PW16 Sonia is a witness of last seen.
She mainly deposed that they have a shop in the name of Chorasia Pan Bhandar at Bus-stand, Manimajra.
She alongwith her sister Madhu runs the shop.
Naresh @ Nittu used to run a juice shop at the back of their shop.
On 29.04.2006 at about 8:00/8:45 p.m., she was sitting at the STD and her sister was sitting behind in the shop.
Meanwhile, a boy came there and made a phone call while stating that Nittu, he had visited his shop 3-4 times and he further asked as to where he was.
The said boy summoned Naresh to their shop.
Naresh came there immediately.
Then both of them left towards Fun Republic.
The said boy had also stated his name as Bunty while making the call to Naresh.
PW17 Chet Ram is a witness of last seen.
He stated that he is a contractor.
He belongs to Himachal Pradesh.
On 29.04.2006 at about 8:00/8:30 p.m., he had come to Nittu to take back the loan money, given to him.
Meanwhile, Nittu received a call on his mobile phone and stated that Bunty he is just coming and thereafter he alongwith Naresh went to Chorasia Pan shop where Bunty told him that Hanish and Boby too Criminal Appeal not D-231-DB of 2009 [7].want/wanted to meet him and are waiting outside in the car.
Nittu accompanied Bunty and he kept waiting there for about 10-15 minutes but Nittu did not come back.
Thereafter, he went away.
PW18 ASI Sewa Singh deposed regarding the arrest of accused Hanish Kumar and his disclosure statement.
He also deposed regarding the spot identification memos.
Accused Hanish pointed out the spot where sim card, taken out from the mobile phone of Nittu, was thrown near Sector 25 near a park.
He also pointed out the place where broken mobile was thrown and regarding recovery of mobile phone, one shoe etc., in pursuance of his disclosure statement.
He also deposed regarding the disclosure statement made by Gurinder Singh on the same day and in pursuance of his disclosure statement, one mobile phone, seat covers and white bag etc.were recovered.
Accused Gurinder Singh and Hanish also identified the place where they had sold the Accent car.
Accused Rakesh @ Boby also suffered disclosure statement and the place/river where he had thrown the gold chain, was also demarcated.
PW19 Neeraj Pal, Nodal Officer, Vodafone Essar, brought the summoned record of phone No.9888723669, pertaining to Surinderjit.
The said connection was a pre-paid connection and he produced the record regarding call details.
PW20 Sushil Kumar Chopra, Nodal Officer, brought the summoned record of phone No.9876690265.
The said number is in the name of Naresh Kumar son of Prem Chand.
He also produced the record of call details of Criminal Appeal not D-231-DB of 2009 [8].Phone Nos.9815452343 and 9872076254.
PW21 Rakesh Kumar, ASR/Reader to DC, Panchkula, mainly deposed regarding the sanction given by DC/DM, Panchkula for prosecution against accused Rakesh @ Boby.
PW22 Dr.Navjot Tiwana deposed that on 01.05.2006, he alongwith Dr.Raman Gupta conducted the postmortem examination on the dead body of Naresh Kumar and found the following injuries:- 1.
Punctured wound present 4 cm above left nipple measuring 1 cm x 1 cm in diameter and 1 cm deep.”
2. Punctured wound present in the central area of chest 3 inches below proximal end of sternum measuring 1 cm x 1 cm in diameter and 5 inches in depth.”
3. Punctred wound on the right side of chest 2 inches above right nipple measuring 1 cm x 1 cm in diameter and 6 inches in depth.”
4. Punctured wound over occipital area of scalp brain matter oozing out of it.
Wound measuring 1½ cm x 1 ½ cm in diameter and 3 inches in depth.
In the opinion of the doctORS.the cause of death in this case was haemothorax and head injury which in themselves are sufficient to cause death in the natural couRs.of events.
PW23 Constable Kirpal Singh mainly deposed that MHC Dev Raj handed over to him two parcels for depositing the same in the FSL.
PW24 Tej Pal has not supported the prosecution version and was declared hostile.
PW25 Lalit Behal mainly deposed that police had come to his house to inquire about phone No.9872076254.
He had not Criminal Appeal not D-231-DB of 2009 [9].brought the said number not he had handed over the said number to anybody else.
He also deposed that his house number has been wrongly entered on the form Ex.PQ/3.
Application form Ex.PQ/3, which bears his photograph, pertains to his old address but it does not bear his signatures.
He also admitted that photo copy of driving licence attached with the said form also pertains to him.
PW26 Bhupinder Singh deposed regarding the identification of the dead body.
He also deposed that on 15.05.2006, he had also gone to STD booth where Madhu and Sonia told that Naresh had gone with one Bunty on 29.04.2006 at around 8:00/8:30 p.m.He also identified the shoe/shoes of deceased.
PW27 Sub Inspector Satpal Singh deposed regarding recording the FIR and then regarding the investigation of this case.
He also deposed regarding getting conducted the postmortem examination on the dead body and regarding recording the statements of witnesses.
PW28 CI Vishal Kumar deposed regarding joining the investigation and regarding the spot identification memo Ex.PS at the instance of accused Vajinder Sharma @ Bunty.
He also deposed regarding disclosure statement, suffered by accused Vajinder Sharma @ Bunty and further deposed regarding demarcation memos.
He also deposed regarding recovery of one brown colour puRs.from kitchen which was containing a ring having one white water coloured stone alongwith one paper and photograph of deceased Naresh.
PW29 Sub Inspector Rajinder Singh also deposed regarding the demarcation memos, disclosure Criminal Appeal not D-231-DB of 2009 [10].statement and recovery by accused Vijender Sharma @ Bunty.
PW30 Head Constable Sahab Singh deposed that on 21.07.2006, he was posted as MHC in Police Station Mahesh Nagar and on that day one country made pistol alongwith 10 cartridges was deposited in case FIR No.65 dated 08.03.2006 under Section 302 IPC registered at Police Station Mahesh Nagar.
PW31 Head Constable Jagdish Chander also deposed regarding joining of investigation and the disclosure statements etc.made by the accused.
PW32 Inspector Pawan Kumar deposed that he had partly investigated the matter.
The public prosecutor, after tendering into evidence report of Forensic Science Laboratory Ex.PW, closed the prosecution evidence.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C.and confronted with the evidence of prosecution.
The accused denied the correctness of the evidence and pleaded themselves as innocent.
In defence, the accused examined DW1 Head Constable Gian Singh.
He mainly deposed that he went to serve the summons of Kumari Madhu @ Salma and Sonia but from the locality he came to knot that they never resided on the addresses, given in the summons, at any point of time and he proved the report.
DW2 Bachna Ram, Panch of Gram Panchayat Barwal, stated that he is residing in the village since his childhood.
He never kept any tenant in his house till date.
He does not knot any Chet Ram.
No person Criminal Appeal not D-231-DB of 2009 [11].of said name and parentage resided with him at any point of time.
DW3 Jagjit Singh is the father of accused Gurinder Singh.
The trial Court, after appreciation of evidence and material on record, convicted and sentenced appellant-accused Vijender @ Bunty and acquitted accused Hanish, Gurinder Singh and Rakesh Sharma.
At the time of arguments, learned counsel for the appellant contended that it is a case of circumstantial evidence.
The only incriminating evidence against accused, as per prosecution version, is of the last seen and the recovery of puRs.and one photograph.
The occurrence is of 30.04.2006 whereas appellant- accused was arrested in March, 2007.
Why the accused will keep the empty puRs.etc.with him for such a long period.
He also contended that as per doctor's statement, the dead body was wearing golden 'karah' and yellow colour metallic ring.
If the accused had to commit the theft then he might have taken away those valuable article not the purse.
Learned counsel for the appellant further contended that as regarding the last seen, there is no cogent evidence on the record that the deceased and accused were seen together immediate or in short interval before the occurrence.
PWs have lastly seen the deceased at about 8:00/8:45 p.m.as per their statements whereas the dead body was seen at 7:00 a.m.and at that time blood was oozing out which means that the occurrence took place early in the morning.
Even rigor mortis was not present at that Criminal Appeal not D-231-DB of 2009 [12].time.
Therefore, learned counsel for the appellant contended that there is no evidence to connect the appellant-accused with the crime and chain of circumstances is incomplete.
When the dead body was already recovered and the other accused, who had already made disclosure statements, had been acquitted by the trial Court then the demarcation memos as per statement of accused Vijender is having no value.
He further contended that any statement regarding occurrence made by co-accused or the accused which did not lead to recovery is inadmissible in evidence being confession of the accused before the police and hit by Section 25 of the Evidence Act.
Learned counsel for the appellants further contended that even DW2 Bachna Ram, Panch of Gram Panchayat, has stated that no person of the name of Chet Ram was residing at that address at any point of time.
Even DW1 Head Constable Gian Singh has proved the reports on the summons that Sonia and her sister Madhu had never resided on the given address at any time.
On the other hand, learned Addl.
Advocate General, Haryana, contended that PW16 Sonia and PW17 Chet Ram have deposed regarding last seen evidence i.e.Naresh @ Nittu (deceased) was seen with the accused.
He also contended that the appellant-accused on his arrest had pointed out various places where he had thrown the golden chain, shoe of the deceased etc.He contended that recovery of puRs.of the deceased also connects the accused with the crime.
Therefore, learned Addl.
Advocate Criminal Appeal not D-231-DB of 2009 [13].General, Haryana contended that the appeal having no merit, should be dismissed.
We have heard learned counsel for the appellant and learned Addl.
Advocate General, Haryana, and with their assistance we have gone through the evidence on record minutely and carefully.
From the evidence on record, we find that it is a case of circumstantial evidence and chain of circumstances should be complete and must point towards the guilt of the accused only and none else.
There should not be any missing links in the chain in the case of circumstantial evidence.
Motive is always significant.
In the present case, prosecution has failed to prove the motive to commit the occurrence.
Secondly, no weapon of offence has been recovered from the appellant.
There is no extra judicial confession made by the accused.
There is only evidence of last seen i.e.of PW16 Sonia and PW17 Chet Ram.
As regarding statement of PW16 Sonia, she states that accused Bunty came to STD and called Naresh there while making phone call to him but no document has been produced on the record to show the ownership of STD not number of STD is there in the calls detail.
Even there is no evidence on the record that the mobile was owned/belonged to the deceased.
Rather in cross- examination, Sonia has stated that she also used to call from her STD on the mobile phone of Naresh (deceased).Therefore, in the facts and circumstances of the case and without any cogent documentary evidence, her statement cannot be believed especially Criminal Appeal not D-231-DB of 2009 [14].when the shop of deceased Naresh is just on the backside of STD shop.
As per statement of PW17 Chet Ram, deceased Naresh @ Nittu was present at his shop when the accused is stated to have given call to the deceased.
Similarly, as per PW17 Chet Ram, he came to the shop of Naresh deceased.
The deceased received the telephone call and came in front of the STD and went away in the car.
The statements of PW16 Sonia and PW17 Chet Ram are not consistent.
PW16 Sonia has nowhere stated that any Ascent car was standing outside parked or any other person was present whereas PW17 Chet Ram has stated that Bunty told Nittu that Hanish and Boby too wanted to meet him and are waiting outside in the car.
PW17 Chet Ram also confronted with his statement recorded before the police.
In his statement in the Court, he stated that he had to take Rs.2,000/- from the deceased but the said fact is not mentioned in the police statement.
The accused was not got identified from this witness.
In cross-examination, he stated that the police recorded his statement on 05.04.2006.
Otherwise also, there is nothing on record why this witness came alongwith Naresh in front of the shop.
Similarly, PW16 Sonia, in cross-examination, stated that she did not issue any bill because machine was not printing bill.
She had not given any detail of the call made by the accused from her STD not the police had verified meter regarding details of call.
Police had not taken in possession any record from them regarding the ownership of the STD.
She also deposed that Nittu had visited her STD alone and Criminal Appeal not D-231-DB of 2009 [15].when he left, there was another person also with him.
She deposed that she does not knot regarding the said person and had not stated to the police about the said person in her statement.
In cross- examination, she also stated that she got recorded similar statement to the Investigating Officer even on 01.05.2006.
Her statement recorded by the police on 11.05.2006 is available on the file but her previous statement is not on the file.
In cross-examination when she was confronted with her statement, it is also found that she had not given her STD number while recording her statement to the police.
Keeping in view the above discussed evidence, we find that in the absence of any documentary evidence and in view of the statement of DW2 Bachna Ram that no person in the name of Chet Ram was residing at any time on the given address and further statement of DW1 Head Constable Gian Singh that Sonia and her sister Madhu were not residing at any time on the given address create reasonable doubt and make their statements unreliable.
Otherwise also, there is no explanation by the prosecution where fiRs.statement of Sonia (PW16) recorded on 01.05.2006 had gone.
Otherwise also, as per prosecution version, dead body was seen at 7:00 a.m.on 30.04.2006 and blood was oozing out from the injuries, Nos.etc.which means that the death has occurred in the morning.
Even rigor mortis was not present.
The last seen evidence is of 8:00/8:45 p.m.of the earlier day i.e.29.04.2006.
There is nothing on the record that where the deceased had gone during the night time.
Criminal Appeal not D-231-DB of 2009 [16].There is every possibility that someone else intervened during that period.
Therefore, it cannot be held that in between the period “after the last seen and before the occurrence”., no other person could cause the occurrence.
The last seen was not immediate or in short interval before the occurrence, therefore, no reliance can be placed on this evidence.
As already discussed, recovery of puRs.cannot be connected with the accused.
Nobody will keep the puRs.for such a long time after the occurrence.
Otherwise also, from the facts and circumstances, it is proved that theft was not the motive to commit the crime because the golden kara and ring were still on the dead body and PW22 Dr.Navjot Tiwana, who conducted the postmortem examination alongwith other doctor, had removed these articles, as per his statement before the Court.
Therefore, from the evidence on record, we find that there is no incriminating evidence against the accused to connect him with the crime.
A reasonable doubt exists in the prosecution version.
Chain of circumstances is incomplete.
There are missing links.
From the evidence on record, it cannot be held that it is only the accused who has committed the crime and none else.
Therefore, from the aforesaid discussion, we find merit in the contentions of learned counsel for the appellant and giving benefit of doubt to the appellant, he is acquitted of the charges framed against him.
Criminal Appeal not D-231-DB of 2009 [17].Accordingly, the present appeal is allowed and the impugned judgment of conviction and order of sentence is set aside.
Appellant Vijender @ Bunty, who is in custody, be set at liberty forthwith, if not required in any other case.
(SATISH KUMAR MITTAL) (INDERJIT SINGH) JUDGE JUDGE 20 12.2012 mamta