Naveen Alias Tinku Vs. State of Haryana - Court Judgment

Excerpt:
- uma nath singh, j.1. this judgment shall also dispose of the connected criminal appeal no. 649-db of 2007 (ravinder alias ravi v. state of haryana) as both these matters arise out of a judgment dated 17-7-2007, passed by learned additional sessions judge, sonepat, in sessions case no. 58 of 13-5-2006/2005 13-5-2006/2005 , whereby both the accused appellants have been held guilty under sections 452 and 302 read with section 34, i.p.c. and sentenced to undergo 3 years' r. i. with a fine of rs. 1000/-; in default of payment of fine, to undergo further ri for 6 months on first count and imprisonment for life with a fine of rs. 5,000/-; in default of payment of fine, to undergo further r. i. for one year on second count.2. as per prosecution case, on 12-10-2005, asi baljit singh (pw15) of p. s. kharkhoda received a telephonic information from police post of pgims, rohtak, regarding admission of sandeep (since deceased) son of dharambir resident of village rohna in injured condition as a result of assaults caused to him. asi baljit singh alongwith ehc bijender singh and ehc shiv kumar (pw 10), set out for pgims rohtak, and having reached there, collected the ruqa ex. p1/1 and a copy of mlr (ex. p1) pertaining to the injured. thereafter, he went to ward no. 4 where he moved an application (ex. pl) to the casualty medical officer seeking his opinion as to the fitness of injured sandeep to make a statement. but, the doctor on duty, vide his endorsement (ex. pl/1) declared the injured unfit to make statement. a cousin of injured sandeep, namely jitender (pw3) son of mahabir was found present there. he got recorded his statement that he was an agriculturist and a resident of rohna. his cousin sandeep son of dharambir was running a poultry farm in his fields where he had also installed a tubewell in a room constructed there. jitender further told that on previous day, i.e., 11-10-2005, at about 4 p.m., there had been an incident of altercation between injured sandeep and ravinder alias ravi son of kartar singh and tinku son of mahabir, both residents of rohna over some matter. ravinder and tinku had then threatened injured sandeep to kill him. the complainant further states that on 11-10-2005, the date of altercation, at about 9 p.m., sandeep had gone to his fields to water paddy crops and had slept in the fields itself. poultry farm was lying vacant at that time. the complainant further stated that in the morning on 12-10-2005, at 4.00 a.m., he went to the fields carrying tea for his cousin sandeep and saw that sandeep was lying unconcious on a cot in the pool of blood inside the room. he also noticed that blood was oozing out of his head where he had been caused injury. having seen it, he came back home and informed about the occurrence to his family members. then, he accompanied by his aunt devi wife of dharambir, uncle dharambir (pw 2) son of mauji ram, bijender son of balbir, and devender son of mahabir, all residents of rohna came to the fields in a jeep. they put injured sandeep in the jeep and brought him to pgims, rohtak, for treatment, and thus, he was admitted there. complainant further disclosed that he was sure that only accused ravinder and tinku had caused injuries with some weapon to injured sandeep with an intention to cause his death after entering the kotha (tubewell room) of the fields on account of altercation of the previous day.3. asi baljit singh made his endorsement on the statement (ex. pd) aforesaid vide the endorsement (ex. pl/2) and sent it to the police station through ehc bijender singh for registration of an fir. pursuant thereto, asi azad singh (pw 4) registered the fir (carbon copy ex. pf). asi baljit singh (pw 15) also recorded the statements of smt. devi and bijender at pgims, rohtak, under section 161, cr. p.c., and thereafter, he proceeded to the scene of occurrence being accompanied by ehc shiv kumar and devinder son of mahabir. the scene of occurrence was inspected in the presence of smt. kamlesh rani, sso. a dog squad was also called and the photographs were taken by photographer shiv kumar (pw 12). during the course of inspection of the scene of occurrence, a blood stained gadela (a cushioned mattress) (ex. p2) lying on the cot was cut. apiece of blood stained baan (jute) (ex. p1) was also cut and put in a plastic box. blood stained earth (ex. p4) was collected from under the cot and put into a small box. a pair of chappal (ex. p-3) was also collected from the spot. all these articles were made into parcel and sealed with seal 'bs' and then taken into possession vide recovery memo (ex. pc), which was attested by devinder singh and dharambir (pw2). seal after use was handed over to devinder singh. a site plan (ex. pl/3) of the scene of occurrence was also prepared and statements of witnesses were recorded. thereafter, asi baljit singh (pw 15) received information that injured sandeep succumbed to the injuries, therefore, section 302,i.p.c. was added. a special report (ex. pf/2) about the incident was also sent by asi azad singh under section 157, cr. p.c. asi baljit singh then reached pgims rohtak and conducted the inquest proceedings. on his return to police station, further investigation was taken over by si/sho sahab singh (pw 16). on 13-10-2005, post mortem examination on the dead body of sandeep was conducted. after the post mortem examination, a sealed parcel containing clothes of the deceased alongwith the copy of pmr was handed over to the police, which was taken into possession by si saheb singh (pw 16) in the presence of ehc shiv kumar and asi baljit singh, vide memo (ex. pk). during the course of further investigation of this case, rajesh (pw13) son of maidhan (brother-in-law of the deceased), produced accused ravinder alias ravi at the bus stop of village rohna. as per statement of witness rajesh, accused ravinder singh had made an extra-judicial confession before him regarding committing the offence alongwith co-accused naveen alias tinku. statement of witness rajesh was thus, recorded and accused ravinder was taken into custody vide arrest memo. the accused was produced in the court on 15-10-2005 and his police remand was obtained till 18-10-2005. on 17-10-2005, co-accused naveen alias tinku was arrested on being produced by one yashbir to whom he has also made an extra-judicial confession. statement of yashbir was also recorded and then co-accused naveen was taken into custody vide an arrest memo. on 17-10-2005 itself, accused ravinder alias ravi was interrogated in the presence of asi baljit singh and complainant jitender. co-accused naveen disclosed that the kassi with which he had caused injuries to deceased sandeep had been concealed by him in the heap of 'purali' in his gair about which he alone had the information. he also offered to get the same recovered. his disclosure statement (ex. pe). was reduced into writing. thereafter, the accused led the police party to the pointed out place and got the recovery of kassi effected. measurements of the blade of kassi were also taken and its sketch was prepared. the kassi was then converted into a parcel by si sahab singh and sealed with his seal 'ss'. the sealed parcel was taken into possession vide recovery memo (ex.pe/2). a site plan (ex. pl/3) of the place of recovery was also prepared. during the course of further investigation, a scaled site plan of the place of offence was also got prepared. these parcels were sent to fsl, madhuban, for chemical examination, after the statements of witnesses were recorded, and the investigation was completed, a challan under section 173, cr. p.c., was submitted by si/shq sahab singh in the court of concerned area judicial magistrate. finally, he committed the case to the court of sessions, the trial court framed charges under sections 302 and 452 read with 34, i.p.c. on 19-12-2005. the accused persons pleaded not guilty to the charges and claimed trial.4. the prosecution, in order to establish its case, examined as many as 16 witnesses, mahender singh (pw-1); dharambir, father of deceased (pw2); complainant jitender (pw-3); asi azad (pw4); satish kumar patwari (pw-5); h. c. rajbir (pw6); dr. sanjeev kumar (pw8); dr. asha goel (pw-9); ehc shiv kumar (pw10); c. yudhvir singh (pw11); photographer shiv kumar (pw12); rajesh kumar (pw13); ehc ved prakash (pw14); asi baljit singh (pw15), and investigating officer sahab singh (pw16). some prosecution witnesses, namely, devi, bijender and devinder were given up by the prosecution as unnecessary, whereas, pw yashbir was given up by the prosecution as won over by the accused. thereafter, the prosecution evidence was closed.5. in the examination under section 313 cr. p.c., the accused persons denied the circumstances put across to them and pleaded false implication. however, in their defence, they did not produce any evidence.6. heard learned counsel for parties and perused the appeals record.7. learned senior counsel sh. baldev singh, submitted that only two injuries were found located on the body of the deceased and the weapon used was a kassi (spade). according to him, though there is an allegation of altercation between the deceased and the accused persons being the motive, but, it is not clear as to over what issue that altercation had taken place. he further argued that according to mahabir (pw7), the deceased was his real nephew and that on 12-10-2005, at about 4.00 a.m., while going towards the cremation ground to answer the call of nature, he had seen the accused persons ravinder @ ravi with a kassi on his shoulders being accompanied by naveen @ tinku (who was empty handed) while coming from the side of fields, and going towards the village. they were walking with long paces, but strangely enough, he made this statement to the police on 14-10-2005, whereas, deceased sandeep was allegedly murdered on the night intervening 11/12-10-2005 11/12-10-2005 itself. thus, there was a delay of about 3 days in making the statement which has not been explained. moreover, this incriminating circumstance was also not put to the accused persons in their examinations by court under section 313 cr. p.c. similarly, the extra-judicial confession made before witness rajesh kumar (p.w. 13) by accused ravinder alias ravi that on 11-10-2005 he and co-accused naveen @ tinku had entered into an altercation with deceased sandeep, also does not inspire confidence inasmuch as this witness rajesh kumar (pw13) is the brother-in-law (jija) of deceased sandeep, and it does not appear probable that the accused persons would have made a statement like that before him after travelling a distance of 35-36 kms. in the village where witness rajesh kumar was residing. besides, witness rajesh kumar was also a relative of si sahab singh who was posted as sho at p. s. kharkhoda at the relevant time, thus, this would appear contrary to a normal human conduct that the accused would have suffered an incriminating statement before this witness, who was not only related to the deceased but also to the police officer under the impression that he would get some help. learned senior counsel asserted that this incriminating fact was never put across to the accused persons in their examinations under section 313 cr. p.c. and, hence, the testimonies of these witnesses namely mahabir (pw7) and rajesh kumar (pw13) need to be discarded on the ground that they were introduced later by the prosecution to make its case look probable. according to learned senior counsel, in the absence of the aforesaid incriminating facts being put to the accused persons by court during their examinations under section 313 cr. p.c., they have been denied a valuable right to know the prosecution evidence adduced against them, and an opportunity to explain which has caused a grave prejudice and thus, has led to the miscarriage of justice. learned senior counsel further argued that this case only rests on circumstantial evidence and there is no legal admissible evidence against the accused persons which would connect them with the commission of the alleged offence. learned senior counsel also invited our attention to the statement of mahender singh (pw1) to the effect that the injured deceased was initially taken to pgims rohtak on 12-10-2005 where the attending doctors expressed their inability to treat the patient, and therefore, injured sandeep was taken to delhi, but on the way, he succumbed to the injuries, and under the circumstances, brought back dead to pgims, rohtak. this fact was also not put to the accused while examining them under section 313 cr. p.c.8. on the other hand, learned additional advocate general, haryana, fully supported the impugned judgment passed by learned trial judge and argued that the judgment convicting and sentencing the accused persons is justified in view of the preponderance of evidence on record.9. in this background, the prosecution case needs to be re-examined and the rival evidence re-appreciated. mahender singh (pw-1) has stated that on 12-10-2005, when he had come to know that his cousin sandeep had sustained certain injuries and had been taken to pgims rohtak, he had gone there. he also deposed that the doctors at rohtak had shown their inability to treat the patient and thus, deceased sandeep was being taken to delhi, but on the way, he had succumbed to the injuries and, therefore, brought back dead to pgims, rohtak. he identified his signatures on the memo relating to the receipt of dead body (ex. pa) and also the post mortem report (ex. pb). in his cross-examination, he has deposed that he was not aware of the fact as to whether the attending doctor of pgims rohtak had referred deceased sandeep for treatment to delhi or not.10. dharmbir (pw2) is the father of deceased sandeep. he has deposed that his son sandeep used to run a poultry farm. on 11-10-2005, at 4.00 p.m., his son sandeep had an altercation with accused ravinder and naveen and both the accused persons had also threatened to kill him. on the same day, sandeep had gone to fields for irrigating the paddy crops. sandeep had also told that he would sleep in fields in the night. on the next morning i.e. 12-10-2005, at about 4.00 a. m., when jitender (pw3) had gone to fields for giving tea to deceased sandeep, he had noticed that deceased sandeep was lying on a cot in the pool of blood. jitender (pw3), had thus, returned home and informed that sandeep had sustained 'injuries. thereafter, mahabir (pw7), jitender (pw3), bijender, devinder and devi (all three not examined), had taken the injured sandeep to pgims rohtak, whereas, this witness (pw2) had stayed at the spot. police also reached there and collected the incriminating articles from the spot vide recovery memo (ex. pc). in his cross examination, this witness has stated that he was not aware as to when the police had arrested both the accused persons.' he further deposed that he had not seen the fields to find out as to how much of the total area had been irrigated at that time. he further stated that prior to the altercation of 11-10-2005, there had been an ongoing ill-will and bitterness between the accused and deceased sandeep over the lok sabha election, which had also been contested by one abhimanyu.11. jitender (pw3) is the cousin of deceased sandeep and also the complainant in this case. he has proved his statement (ex. pd), referred to above, and deposed that he had full suspicion that accused ravinder @ ravi and naveen @ tinku, who had earlier caused injuries to sandeep in the altercation, had the intention to kill him as a repraisal thereof. he further stated that on 17-10-2005, accused ravinder had been interrogated in his presence who had also disclosed to the police that the weapon which he had used in causing injuries to sandeep had been concealed by him in his gair. pw3 also proved the disclosure statement (ex. pe) made by accused ravinder @ ravi. pursuant to the statement so given, the accused had led the police party to the place pointed out by him, and had also got recovered a kassi (spade), the weapon of offence. the witness has also proved the sketch of kassi as ex. pe/1 and the recovery memo as ex. pe/2. he has also identified the kassi (ex. p5) in court which had been recovered at the instance of accused ravinder. in his cross examination, the witness has deposed that on 12-10-2005, at about 4.30/4.45 p.m., he alongwith others, had left for pgims, rohtak. he has admitted that p. s. kharkhoda falls on the way, but they had not reported the matter in that police station as his brother sandeep was being taken to the hospital in an injured condition. he has also admitted that the police had met him for the first time in pgims rohtak on 12-10-2005 at about 11.30 a.m., when deceased sandeep was alive. he has also admitted that deceased sandeep, while being taken to delhi, had expired at about 2.00/ 3.00 p.m., on the way. he has deposed that he was not aware of the issue over which the altercation had taken place between the accused and deceased. he has also admitted that the weapon of offence like kassi is available in every house in villages. however, he has denied the defence suggestions that accused ravinder @ ravi had not made any disclosure statement, nor the recovery of weapon had been effected at his instance, nor any altercation had taken place between them on the evening of 11-10-2005.12. asi azad singh (pw4) is a formal witness and on the receipt of a ruqa asi baljit singh, he had recorded the fir (ex. pf), and after making an endorsement on the ruqa (ex. pf/1), he had also sent it back to asi baljit singh. he has deposed that at about 4.00 p.m., he had received a telephonic call from the police post, pgims, rohtak stating that injured sandeep had expired, therefore, he had prepared a special report (ex. pf/2) and sent it to be delivered to the concerned illaqa magistrate.13. satish kumar (pw5) was halqa patwari who had prepared the site plan (ex. pg) on 2-11-2005. in his cross-examinations, he had deposed that he had not seen the farm of dharambir (pw2), father of the deceased, but he had noticed a small poultry farm at a distance of 1 1/2 killa from the place where he had prepared the site plan.14. hc rajbir singh (pw6) was posted as mohrir head constable in police station kharkhoda on 12-10-2005. he has tendered his evidence on affidavit (ex. ph) while stating therein that one parcel of a piece of mattress, one parcel of baan (jute), one parcel of plastic box containing blood, and one parcel of spade duly sealed, had been deposited with him and on 28-10-2005, he had handed over these parcels to c. yudhvir for depositing the same in the office of fsl, madhuban for chemical examination.15. mahabir (pw7) is said to be related to deceased sandeep as his uncle. he has deposed that on 12-10-2005 at about 4.00 p.m., while he was going towards the cremation ground to answer the call of nature, he had noticed accused ravinder alias ravi with naveen alias tinku coming from the side of fields. at that time accused ravinder was carrying a kassi on his shoulders whereas naveen was empty handed. within his sight, both the accused persons had walked with long paces towards the village. police had recorded his statement on 14-10-2005 when he had told them that sandeep had been murdered on the night intervening 11/12-10-2005 11/12-10-2005 and was also sure that deceased sandeep had been murdered by accused ravinder and naveen. in his cross-examinations, this witness has admitted that he could not see the presence of any stain on the kassi of accused ravinder, and after answering the call of nature, he had not returned to his house, and had rather gone to village sampla. he has also admitted that it was for the first time on 14-10-2005 when he had told the police that he had seen the accused persons on the morning of 12-10-2005 while they had crossed him closely on the passage. he has also admitted that the complainant jitender is his son.16. dr. sanjeev kumar (pw8) was working as casualty medical officer in the pgims rohtak on 12-10-2005. he has deposed that on that day, sandeep had been brought to the casualty ward with a history of assault, accompanied by one bijender (not examined). at that time the patient was unconscious. he had examined the patient and noticed the following injuries on his body:(1) a lacerated wound of 2.5 x .3 cm on right tempro parietal region and advised surgeon opinion.(2) a lacerated wound of 1 x .3 cm on right temporal region just above and behind the right ear. advised surgeon opinion.(3) bleeding from bilateral nostrils and right ear. advised ent surgeon opinion.17. he has proved the mlr of the patient as ex. p1. he had also sent the ruqa to the police vide ex. p1/1, regarding the arrival of injured. the injuries had been kept under observation and the kind of weapon used was noted to be a blunt one and the probable duration of injuries as within six hours. in his cross-examinations, he has deposed that this was not necessary that the blood would have appeared on the weapon used in causing the injuries mentioned in the mlr. however, according to him, a possibility to that effect was also not ruled out.18. dr. asha goel (pw9) had conducted the post mortem examination on the dead body of deceased sandeep on 13-10-2005. during the post mortem examination, she had noticed that the face and upper part of body were stained with blood. rigor mortis was present all over the body and blood was oozing out from the nostrils and ears. on examination, a stitched wound of 10 cm length with clotted blood was found present on the right temporal region. on dissection, she has noticed the presence of haematoma on the whole right temporal region and scalp, and also a massive fracture of underlying bone, besides evisceration of brain matter. however, other parts of the body were found to be normal. in her opinion, the cause of death was shock and haemorrhage. the probable duration that had elapsed between the death and injury was immediate. the duration between the death and post mortem examination was within 36 hours. she has proved the carbon copy of pmr (ex. pb) and the inquest report (ex. pj). this witness has deposed that a possibility cannot be ruled out that the injuries found on the person of deceased could be caused by the blunt side of kassi (spade) marked as ex. p5. in her cross-examinations, she has admitted that there was only one stitched injury on the head of deceased. after conducting the post mortem examination, the dead body of deceased sandeep was duly stitched. a copy of pmr, police papers and belongings of the deceased alongwith four clothes had been handed over to the police.19. ehc shiv kumar (pw10) had taken the dead body of deceased sandeep on 13-10-2005 for the purpose of post mortem examination, on the direction of asi baljit singh, and after the post mortem examination had been conducted, he was handed over a sealed parcel containing the clothes of the deceased, by the doctor, which he handed over to sho/si sahab singh, which was taken in police possession vide memo (ex. pk).20. constable yudhbir singh (pw11) had delivered the parcels of case property at fsl, madhuban, on 28-10-2005 which had been given to him by mhc rajbir singh.21. shiv kumar (pw-12) is a photographer who had taken the photographs of the scene of occurrence on the directions of the police. he has proved the photographs as ex. p-10 to p-14 and their negatives as p-15 to p-18.22. rajesh kumar (pw-13) is brother-in-law (jija) of deceased sandeep, before whom accused ravinder alias ravi is alleged to have made an extra-judicial confession. the relevant portion of his deposition reads as:.on 14-10-2005, at about 2.00 p.m., i was present in my home smoking hooka, when accused ravinder alias ravi came to me and told that he and tinku alias naveen son of mahavir were drivers on the vehicle of abhimanyu and that they had an altercation on 11-10-2005 with sandeep son of dharamvir. he further told me that he alongwith tinku had planned to assault sandeep when he goes to his tubewell in the night at 9.00 p.m. he further told me that after this planning, he and naveen alias tinku went to tubewell of sandeep at about 2.00 a. m., in night. sandeep was sleeping and that he (ravinder) hit handle of the kassi on the head of sandeep resulting in his death. ravinder further asked me that since i was relative of deceased sandeep, so, i should either effect a compromise or i should hand over him to the police as i had acquaintance with the police. thereafter, i handed over accused ravinder alias ravi today present in the court, before the police...23. in his cross-examination, this witness has admitted that the factum of murder of sandeep had come to his knowledge on 12-10-2005 and he had reached the place the same day, and had remained present also at the time of cremation. he has also admitted that si/sho sahab singh of ps kharkhoda was his relative as his father's sister had been married in the family of said sahab singh. this witness has also admitted that the distance between his village and the village of deceased is about 35-36 kms. however, he has denied the defence suggestion that accused ravinder alias ravi had not made any extra-judicial confession before him or that he had never produced him before the police.24. ehc ved prakash (pw-14) had delivered a special report to the illaqa magistrate on 12-10-2005.25. asi baljit singh (pw15) had initially investigated the case and later handed over the investigation to si sahab singh (pw16), who had conducted the remaining part of investigation. both these witnesses have proved the inquest report, fir, recovery memos, disclosure statement, rough site plan, and other incriminating circumstances laid against the accused persons.26. fsl report was also tendered in evidence vide ex. pa. according to the fsl report, presence of human blood was detected on the parcel of blood stained earth, baan (jute) piece, gadela (a cushioned matters), blanket and parna. however, no blood stain could be found on the kassi (spade) (ex. p5). blood was also found present on payjama and kacha (underwear), though its origin could not be determined as the material was found to be disintegrated.27. after the prosecution evidence was over, the accused persons were examined under section 313 cr. p.c. during their examination, they took the stand that the family of deceased sandeep had been harbouring grudges against them and therefore, they have been falsely implicated in the case. this was a case of blind murder and the deceased had earned many enemies on account of his bad temperament, and due to that reason. someone would have killed him. however, they did not produce any defence witness.28. the facts of this case entirely rest upon the circumstantial evidence. it is now a well settled principle of law that in the case of circumstantial evidence, each link of the chain of circumstances has to be individually established beyond doubt, and finally, all the circumstances put together must lead to the one and only inference of the guilt of the accused. when a case is found to rest upon circumstantial evidence, such evidence must satisfy the following tests (see : air 1984 supreme court 1622 : 1984 cri lj 1738 (sharad birdhichand sarda v. state of maharashtra)):(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. the circumstances concerned must or should not 'may be' established.(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable 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. case law discussed.29. these tests have been further reiterated in the case of padala veera reddy v. state of andhra pradesh and ors. : air 1990 supreme court 79 : 1990 cri lj 605, as:(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.30. as noticed above, learned senior counsel for the appellant has contended that the accused persons, during their examination under section 313 cr. p.c., had not been put across certain incriminating circumstances/ evidence like:(i) that mahabir (pw7) had seen the accused persons going together by taking longer paces with weapon of offence when this witness had gone to answer the call of nature.(ii) that accused ravinder alias ravi had made an extra judicial confession before rajesh kumar (pw13), and(iii) that the deceased was initially taken to pgims rohtak in injured condition and then while being carried to delhi for treatment, he died on the way, therefore, brought back to pgims rohtak, where he was declared dead.31. on a careful scrutiny of the impugned judgment, in the light of aforesaid submissions of learned counsel, we notice that the conviction and sentence have been recorded primarily on the basis of the evidence of mahabir (pw7) and the extra judicial confession, made before witness rajesh kumar (pw13), brother-in-law of the deceased, supported by the recovery of incriminating articles, and the motive attributed to the accused persons (as per the evidence of dharambir (pw2) and jatinder (pw3), besides incriminating materials like postmortem report, fir, and fsl report etc.32. hon'ble the apex court in its various decisions, has held that a circumstance not put to accused during his examination under section 313 cr. p.c., cannot be used against him. it is obligatory on the part of trial court to examine the accused under section 313 cr. p.c., for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. if such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence, cannot be relied on for the purpose of recording conviction of the accused persons. some of these judgments are reported as : (i) : 2001 (2) rcr (criminal) 110 : 2001 cri lj 1259 (kanhai mishra alias kanhaiya misar v. state of bihar); (ii) : 2003 (1) rcr (criminal) 566 : 2003 cri lj 914 (lallu manjhi and anr. v. state of jharkhand), and (iii) : (2007) 1 scc (cri.) 732 : 2007 cri lj 1000 (vikramjit singh alias vicky v. state of punjab).33. some such incriminating pieces of evidence of vital imporance, as referred to herein above, and highlighted by learned senior counsel, which have been placed reliance upon by the trial court, had not been put to the accused persons in their examinations under section 313 cr. p.c. these circumstances relate to (i) the fact of witness mahabir (pw7) having seen the accused persons while they were going with the weapon of offence in the morning of the day following the night of occurrence; (ii) delay of three days in giving the statement by this witness mahabir (pw7); (iii) the extra-judicial confession made before rajesh kumar (pw13), brother-in-law of the deceased, and (iv) also the fact that witness mahender singh (pw1) has stated that the deceased had died on the way while being shifted to a delhi hospital and again brought back to pgims, rohtak.34. thus, if the statements of witnesses mahabir (pw7), rajesh kumar (pw13), and mahender singh (pw1) are excluded to that extent, the chain of circumstantial evidence leading to the recording of conviction and sentence of accused would not be completed. the only incriminating materials /evidence, that would be left to support the prosecution case, would be (i) motive, (ii) fir, (iii) post-mortem report, and (iv) fsl report, which would not be sufficient to connect the accused persons with the commission of offence.35. in view of all the aforesaid discussion, the impugned judgment is not found sustainable. hence, it is set aside, and resultantly, both the criminal appeals (nos. 616-db of 2007) (naveen alias tinku v. state of haryana), and 649-db of 2007 (ravinder alias ravi v. state of haryana), stand allowed. accused appellants, who are stated to be lodged in jail, are acquitted of the charges framed against them, and they are directed to be set at liberty forthwith, if not required in any other case.