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KHUSHIA @ HAPPY SON OF BALDEV RAJ, RESID versus THE STATE OF PUNJAB.

High Court of Punjab and Haryana, Chandigarh

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Khushia @ Happy son of Baldev Raj, resid v. The State of Punjab. - CRA-D-64-2000 [2006] RD-P&H 4557 (20 July 2006)

IN THE COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Criminal Appeal. No. 64-DB of 2000.

Date of Decision: August 1, 2006.

Khushia @ Happy son of Baldev Raj, resident of Street No. 10, Dashmesh Nagar, Muktsar. Appellant Vs.

The State of Punjab. Respondent.

CORAM:- HON'BLE MR. JUSTICE AMAR DUTT.
HON'BLE MR. JUSTICE A.N. JINDAL.

Present:- Mr.H.S.Brar, Advocate, for

the appellant.

Mr.J.S.Dhillon,Deputy Advocate General,

Punjab.

JUDGMENT

A.N.JINDAL, J.

Khushia @ Happy, the accused-appellant (hereinafter referred to as the accused) was tried, convicted and sentenced under Section 302 of the Indian Penal Code, by Additional Sessions Judge, Muktsar vide his judgment dated 19.1.2000, for the murder of Surinder Kumar, son of Shri Jattu Ram a shopkeeper resident of Muktsar.

On the intervening night of 18/19.2.1998, Surinder Kumar after taking the meal had gone to retire on the first floor of his house. In those days, his wife was away to her parental house for the last 16/17 days. His father Jattu Ram, who had been living on the first floor of the adjoining shop, when after leaving his grand daughter aged about three years to the school, came to the house then he noticed that Surinder Kumar had not yet reached the shop. When he went in the street, he saw that main gate of his house was lying open and inner door of the shop was slightly open. After entering into the room, he noticed that Surinder Kumar was still lying under the quilt. Instead of repeated calls, when Surinder Kumar did not respond, then after removing the quilt from the side of his feet,he saw that Surinder Kumar was lying dead smeared with blood. On hearing the hue and cry raised by Jattu Ram, Lekh Raj brother of Jattu Ram and Lekh Raj's son were also attracted to the spot.

After leaving Vikas near the dead body of Surinder Kumar, he went to lodge the report. However, he came across A.S.I. Gurjant Singh in the grass market, where he got recorded his statement Ex.PE.ASI Gurjant Singh then sent the same to the Police Station, on the basis of which formal FIR Ex.PE/2 was recorded by ASI Baldev Singh. ASI Gurjant Singh handled the investigation and reached the spot, prepared the inquest report Ex.PO, got conducted the autopsy on the dead body of Surinder Kumar, inspected the spot prepared the site plan Ex.PP with correct marginal notes, recorded the statement of witnesses took Quilt Ex.P-1 into possession Pillows Exs. P2 and P3, bed sheets Ex.P4 and P-5 trouser (pant) Ex.P6, underwear Ex.P7 and a plastic sheet Ex.P8 (smeared with blood) were also taken into possession after converting the same into a parcel vide memo Ex.PH. He also took into possession empty bottle of "Bagpiper Whisky" Ex.P10 alongwith an empty glass tumbler lying near the bed of the deceased, bearing finger prints, vide memo Ex.PJ.He also took into possession blood stained clothes of the deceased alongwith vials Exs. P13 to P-22,Jar Ex.P-23containing hair of the deceased and Jar Ex.P-24 containing blood vide Memo Ex.PQ which were produced before him by Mithu Singh PW, resident of village Lande Rode,got recorded his statement that accused had made extra-judicial confession before him regarding murder of Surinder Kumar. He also produced the accused before Investigating Officer. On that very day, the accused got recovered a weight of five Kgs ( the weapon of offence), in pursuance of disclosure statement Ex.PF under Section 27 of the Evidence Act. The five Kgs weight Ex.P9 so recovered was taken into possession by Inspector Baj Singh vide memo Ex.PF/1.The accused was also got medico legally examined from Civil Hospital, Muktsar, vide application Ex. PC. On request letter Ex.PD made by Inspector Baj Singh, Doctor opined vide Ex.PD/1 that injuries could be caused with the aforesaid weight. Scaled site plan Ex.PG was got prepared. Finger Prints of the accused were obtained in the Court of Ilaqa Magistrate and the same alongwith the bottle and glass tumbler were sent to Finger Prints Bureau for comparison. On completion of investigation, ASI Kirpal Singh submitted the challan against the accused.

On finding a prima facie case against the accused, he was charged under section 302 IPC to which he pleaded not guilty and claimed trial.

In order to connect the accused with the crime, the prosecution examined 14 witnesses i.e. PW1 Doctor R. N.Duggal, Medical Officer,who conducted autopsy on dead body of deceased. PW2 Bhushan Kumar son of Gokal Chand is a witness of the last seen of the accused with the deceased.

PW3-Jattu Ram is the complainant. He had seen for the first time that Surinder Kumar was lying dead in the room, PW4-Dalip Singh Sachdeva is the Draftsman; who prepared the rought site plan of the place of occurrence.

PW5-Mithu Ram son of Hari Singh is the person before whom the accused made extra judicial confession on 25.4.1998. PW6-Om Parkash son of Mohan Lal is also a witness of the extra judicial confession but he did not support the prosecution case. PW7- Randhir Singh is a witness to the recovery of the articles taken into possession by the Investigating Officer from the room of the deceased. PW8-HC Gurjant Singh Cashier ; PW9- C.Bohar Singh, PW10-Gurmit Singh, PW12-HC Surinder Singh and PW14- Constable Surinder Kumar No.2483 are the formal wirtnesses. PW11 Inspector Baj Singh and PW-13 ASI Gurjant Singh are the Investigating Officers.

It is not necessary here to discuss extensively. Suffice it to observe that there is no direct evidence connecting the accused with the offence charged. Prosecution case depends on circumstantial evidence.

Pieces of the circumstantial evidence which have been found proved and held as forgeing and incriminating charge against the accused are as under: (1) Medical Evidence.

(2) Last seen together.

(3) Recovery of 5 Kgs of weight (weapon of offence) in pursuance of the statement made by the accused under Section 27 of the Evidence Act.

(4) Extra-judicial confession.

(5) Accused absconding since the date of offence.

Before making observations on the other issues, it is to be determined as to whether the injuries on the body of Surinder Kumar could be caused with 5 Kgs of standard weight, it will be essential here to thrash out the medical evidence.

Dr. N.R.Duggal (PW1) while conducting the autopsy on the dead body of Surinder Kumar, observed the following injuries on his person:-

1. An incised wound 3x2 cms on the left side of the head 8 cms from the left ear and 6 cm behind anterior hairline. On dissection, underlying bone fracture;

2. An incised wound 3 cms x 2cms on the left side of the head 1 cm behind the injury no.1. On dissection underlying bone fracture

3. An incised wound 2 cms x 2 cms on the left side of the rehead 3 cms above lateral angle of left eye. On dissection,NAD.

4. An incised wound 1.5 cms x 1 cms on the left side of the forehead 2 cms below the injury No.3.On dissection, underlying bone fractured.

5. An incised wound 2 cms x 05 cms on lateral angle of left eye 1 cm below injury No.4. On dissection underlying bone NAD.

6. An abrasion 3 cms x 1 cms on the left cheek in the middle on dissection. NAD

7. An incised wound 1 cm x 05 cms on the inner upper part of prepuce of penis. Smegma on inner side of prepuce.

Cause of death in his opinion was due to injuries No. 1 to 5 collectively resulting injury to vital organ i.e. brain. All the injuries according to him, were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. He proved post mortem report, Ex.PB and pictorial diagrams Ex.PB/1 and Ex.PB/2.

Doctor further opined that death in his opinion could be due to injury No.1 to 5 collectively. He did not smell any alcohol from his body The report does not also reveal if any alcohol was detected from any part of body of the deceased. He also testified that in case of sharp edged wounds, the edges are always straight and clear while in the case of wound with a blunt weapon, the margins are irregular and zig-zag. He further testified that the weight which was shown to him for seeking opinion was not of standard quality which is normally used but was of a special kind having sharp edges. The standard weight is a blunt weapon. He again said that weight shown to him is a standard weight with tempered edges. The opinion of the Doctor like opinion of any other expert cannot be treated as a gospel truth. Having visualized the injury. There are 5 incised wounds with different sizes on the head, the forehead and face i.e. 1 cm behind injury No.1; left side of the fore-head , left side of the forehead, 2 cms below injury No.3; left eye 1 cm below injury No.4 on the inner part of prepuce of penis and abrasion on the left cheek. The injuries on the cheek as well as on the inner upper part of the prepuce of the penis cannot be result of the same weapon which has been used to cause injury No.1 to 4.

In all human probabilities, a person causing injuries on the head or the eye, may not cause injury on the inner upper part of the prepuce of penis. These two injuries rule out the involvement more than one persons in the commission of the crime.

As regards the causing of the injuries by the accused with the 5 Kgs of weight, Jattu Ram PW3 has stated that the weight which was got recovered by the accused was used by them at the shop. Again he has repeated that the weight which was recovered by the accused was also standard weight. PW1 Dr. N.R. Duggal has stated that the weight is a blunt weapon. Admittedly, the weight which was shown to the doctor at the time of seeking the opinion was not sealed, therefore, it cannot be said that the weapon which was produced in the Court was actually shown to the Dr.

N.R. Duggal at the time of seeking opinion. Admittedly, the said weight which was got recovered from the accused was not sent to the Chemical Examiner to seek his opinion regarding the existence of the blood stains over it. All this padding indicates that opinion from the Doctor was sought after the accused was arrested.

Now coming to the other circumstance of last seen. There is solitary testimony of Bhushan Kumar PW2, who had seen the accused and the deceased taking drinks together in the evening at 9 P.M. The testimony of Bhushan Kumar is in direct conflict with the testimony of Jattu Ram PW3. Jattu Ram states that Surinder Kumar had retired to his bed room after taking the meals, but according to Bhushan Kumar the deceased was still sharing the drinks with the accused. The testimony of Bhushan Kumar is also contradicted by PW1 Dr. N.R.Duggal, who did not smell or detect alcohol from the body of Surinder Kumar. The circumstances that the statement of Bhushan Kumar who was resident of Muktsar itself, having been recorded after two-three days, also creates a question mark over his testimony, especially, when he did not leave Muktsar for any other place during this interval. Had he been true to his version, then he would have associated the police on the very next day and unfolded the story with regard to last seen by him. His ignorance about many material facts that he did not notice if the deceased and the accused were having any snacks or not; he did not notice if they were having soda or water with liquor and he returned the money to the wife of the deceased without any receipt also create a doubt about his visit to Surinder Kumar on the day of occurrence.

To constitute evidence of last seen together, the evidence must be so definite as to permit to draw no other inference then that the victim and the accused were seen together at a point of time in proximity with the time and date of the commission of the crime. From the evidence of Bhushan Kumar, such an inference cannot be drawn.

A few cases can be referred here in which such a circumstance was not found sufficient to infer that the accused had committed the murder of the deceased. Bharat Vs. State of M.P. 2003(1) RCR (Criminal) 637 (SC) which was a case of robbery and murder under Section 302 and 394 IPC, which was based on circumstantial evidence. Conviction was based on evidence that the deceased was last seen with the accused which the accused failed to explain in his statement under Section 313 Cr.P.C. The conviction was set aside.

As regards circumstance with regard to the extra-judicial confession. The only witness to prove the extra-judicial confession is Mithu Singh-PW3. He is a resident of village Lande Rode, whereas the accused Khushia is a resident of Dashmesh Nagar, Muktsar.Mithu Singh in his statement dated 5.5.1999 disclosed that the confession was made by the accused 13 months prior to that date i.e. approximately in the month of April, 1998 whereas according to the prosecution the alleged confession was made in the month of February 1999. Mithu Singh is neither holding any responsible position nor is a person in authority so as to come in aid or rescue of the accused, therefore, the accused had no occasion to go to him to make a confession. Mithu Singh has made a general statement that the accused came to him and told him that there was an altercation between him and the deceased, as a result of which, he hit Surinder Kumar with a 5Kgs weight and murdered him. However, his testimony in Court is in direct conflict with his earlier statement Ex.DB wherein he got recorded that the accused had told him that he and Surinder Kumar had consumed liquor and Surinder Kumar, under the influence of liquor, had compelled the accused to have unnatural act with him. He has also admitted that he did not state earlier if the accused told him about some altercation between him and the deceased and about committing of any unnatural act with him. Thus from the testimony of Mithu Singh, the only inference which can be drawn is that he does not know as to what actual confession was made by the accused before him.

The evidence in respect of extra-judicial confession, particularly when it is entirely oral, should be strictly scrutinised and no reliance should be placed upon it unless the witness is in a position to pronounce with certainty the exact words used by the accused. Where the so called extra-judicial confession was only an admission regarding guilt made by the accused, that could be taken into consideration along with other evidence. It is well settled by now that extra judicial confession has to be received with great care and caution. When the main foundation for the conviction is the extra judicial confession alleged to have been made by the accused, there are three things which the prosecution must establish: (1) that a confession was made;(2) evidence of it can be given; and(3) that it is true. The two rules of caution in the matter of acting upon extra-judicial confession are (1) that the evidence of confession must be reliable and free from infirmity and (2) it must find corroboration. In the present case, the witness has not disclosed as to in what words the accused confessed before him. It also lacks corroboration from any source. It has been observed in case of Balwinder Singh Vs. State of Punjab AIR 1996 Supreme Court 607, that an extra judicial confession by its very nature, is a weak type of evidence and requires an appreciation with great deal of care and caution.

Where extra judicial confession is surrounded by suspicious circumstances, it becomes doubtful and loses its importance. The Courts generally look for independent and reliable corroboration before placing any reliance upon extra judicial confession. The testimony of Mithu Singh, in the given circumstances of the case, is hardly believable. He is from a different village and there was no occasion for the accused to meet him in the wee hours of the day. He could not expect anything from Mithu Singh for admitting his guilt before him. Mithu Singh was also not in a position and capable of protecting the accused as there is nothing in the evidence that he was holding some influence over the police or was yielding some authority like holding the office of the Sarpanch or Lambardar etc.

Therefore, we treat it as unsafe to rely upon the uncorroborated testimony of Mithu Singh regarding extra judicial confession.

The other piece of evidence over which the prosecution wants to place reliance is the recovery of 5 Kgs of weight, got recovered by the accused in pursuance of the statement under Section 27 of the evidence Act on 25.2.1998 in the presence of Jattu Ram and Kirpal Singh ASI by Inspector Baj Singh. On appreciation of evidence of Jattu Ram in this regard, it comes out that recovery of the weapon of offence is not established. Jattu Ram has stated that the accused disclosed to the police that he had kept concealed 5 Kgs of weight in the wild growth near Telephone Pole near Railway Gate on the main road. During cross examination, he states that recovery was effected from near the Railway Line which leads from Kotkapura Muktsar to Fazilka. To the contrary, Inspector Baj Singh has stated that the accused made a disclosure statement Ex.PF that he had concealed 5 Kgs weight in the wild growth near Railway Gate on the Maur road. Again, he is silent if the place of recovery was near Telephone Pole and was on the main road. While examining the statement Ex.PF it is revealed that the accused allegedly made the following statement:- "I have concealed a 5 Kgs. of weight of iron, near the railway crossing of Maur road, in the wild growth (sarkanda) about which I know only and can get recovered on demarcation."

It may further be mentioned that admittedly, the weight was not blood stained and was recovered from an open place accessible to all. None of the witnesses stated that weight was having a particular mark. Such standard weight is easily available in the market. It was neither sealed nor any identification mark was affixed by the police. The Apex Court in case of Trimbaka Vs. State of Haryana, AIR1954 SC 39 observed as under:- " When the field from which the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles."

It was also observed in the case of 1994 Criminal Law Journal NOC 20 (DB) (Punjab and Haryana) Surinder Kumar alias Raju Vs. State of Punjab as under:-

" In case of recovery of stone alleged to be used for murder, no conclusive finding can be drawn, when the recovery was from a place accessible to all and there was no indentifying mark on the said stone. Merely because the said stone was found smeared with human blood it cannot be said that it has been conclusively established that it had been used as a weapon of offence and that too by the accused. In ordinary course of life, children and even grown ups got hurt with stones lying in the way and such stones are likely to be smeared with blood oozed out of such human injuries."

Since recovery of articles was effected on the basis of disclosure statement 5 days after the murder from the bed of the river accessible to everyone, therefore the said statement could not be used to fasten the guilt.

In this case also, recovery of the weight after six days of the occurrence could not be believed and no reliance can be placed to make it a basis of conviction.

As regards the absconding of the accused. The occurrence took place on 19.4.1998. The evidence on the record does not indicate, if accused was absconding, rather evidence reveals that the accused himself surrendered before Inspector Baj Singh. No evidence has been adduced by the prosecution to hold that soon after the date of offence, the accused was found missing from his residence and despite the searches made at the place or places of his normal habitation, he could not be arrested.

It is worth noticing that normally clue-less crimes are committed. The factum of a cognizable crime having been committed is known but neither the identity of the accused is disclosed nor is there any indication available of the witnesses who would be able to furnish useful and relevant evidence. Such offences are the test of wits of the intelligence of an Investigating Officer. A vigilant Investigating Officer well-versed with the techniques of the job, is in a position to collect the threads of evidence finding out of the path which leads to the culprit. The ends, which the Administration of criminal justice serves, are not achieved merely by catching hold of the culprit. An accusation has to be proved to the hilt in a Court of law. The evidence of Investigating Officer given in the Court should have a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him. This is necessary to exclude the likelihood of any innocent having been picked up and branded as culprit and then the gravity of the offence arousing human sympathy persuading the mind to be carried away by doubtful or dubious circumstance treating them as of "beyond doubt" evidentiary value. In this case, the Investigating Officer dealt with the case very casually and remained silent for six days and made no explanation in his statement as to what steps he took during those days to find a passage leading to the culprit and he woke up from the slumber only on 25th

of February, 1998 when he arrested the accused, recorded the statement of Mithu Singh regarding extra judicial confession made before him; recorded the statement of the accused under Section 27 of the Evidence Act and recovered weapon of the offence, on the same day which indicates unfairness in the investigation made by the Investigating Officer.

As an upshot of the above discussion, it will not be unsafe to form an opinion that none of the pieces of evidence relied upon by the prosecution if taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability, it was only the accused and none else who committed the crime.

The trial Court while examining the circumstances, did not properly appreciate and notice the aforesaid facts and erred in reaching the right conclusion therefore the impugned judgment deserves to be reversed.

We,therefore, accept this appeal and set aside the judgment of conviction and sentence dated 19.1.2000 and the appellant is acquitted of the charge framed against him. Bail bonds and surety bonds furnished by them are hereby discharged and the fine, if any, be refunded.

( A.N.JINDAL )

JUDGE

August 1, 2006. (AMAR DUTT )

Anoop JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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