High Court of Punjab and Haryana, Chandigarh
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Ram Bharose v. The State of Haryana. - CRA-D-898-2004  RD-P&H 4571 (21 July 2006)
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl. A. No.898-DB of 2004
Decided on 31. 7.2006.
Ram Bharose Versus The State of Haryana.
CORAM : HON'BLE MR.JUSTICE AMAR DUTT.
HON'BLE MR.JUSTICE A.N.JINDAL.
Present : Mr. J.V.Yadav, Advocate for the appellant.
Mr. B.S.Rana, Senior DAG, Haryana.
In this case pertaining to murder of Harpal, a poultry farm owner the needle of suspicion stopped at Ram Bharose, (hereinafter referred to as the accused ) his servant, therefore, he was charged, tried and convicted for the murder of afore-said Harpal and was sentenced to undergo rigorous imprisonment under Section 302 of the Indian Penal Code ( hereinafter referred to as the `IPC' ) for life and to pay a fine of Rs.5000/-, in default of payment of fine, he was to further undergo rigorous imprisonment for three months. He was also sentenced to further undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- for making the evidence dis-appear under Section 201 IPC and in default of payment of fine, to further undergo rigorous imprisonment for one month. Both the substantive sentences were ordered to run concurrently.
In his statement before the police, complainant Jhabar Singh (hereinafter referred to as `the complainant') disclosed to the police that he had Crl. A. No.898-DB of 2004 2
one brother namely Ram Kumar, who was posted in the Railway Department at Ajmer. He had four sons namely Rajesh, Ashok, Harpal and Sunil. Harpal was unmarried. Earlier Harpal was residing with his father at Ajmer and was studying there. After completing his B.A. Ist year examination he had come to village Balawas and had constructed a poultry farm near the village abadi and about two months prior to the occurrence, he had started the business of Poultry and had employed Ram Bharose accused/appellant started to look after Poultry. On 26.9.2000, at noon Harpal had left for Rewari by disclosing Ram Bharose about his intended visit but he did not turn up till the evening which was followed by search. Ultimately, on account of his mystery about missing, a missing report was lodged in the police station on 28.9.2000. On 29.9.2000, in the morning Ram Bharose informed the complainant that the dead body of Harpal was lying in the millet (Bajra) fields adjoining to the poultry farm. At this, the complainant went to the field and noticed the dead body of Harpal there, which had been putrefied and was emitting bad smell. Both his hands were chopped off. The maggots were present on both his hands. He was wearing the same clothes which he was wearing on 26.9.2000. While raising suspicion over Ram Bharose on account of an altercation between him and the deceased on some earlier occasion that after committing murder he had thrown his dead body at that place.
On the basis of the afore-stated statement Ex.PA, PW-9 SI Magan Singh after making endorsement Ex.PA/1 over it sent to the Police Station, on the basis of which FIR Ex.PA/2 was registered and the investigation was commenced. SI Magan Singh visited the place of occurrence, prepared the rough site plan, got the dead body photographed and lifted the dead body after preparing the inquest proceedings for post mortem examination. He got conducted the post mortem examination from the Board of Doctors. He lifted the Crl. A. No.898-DB of 2004 3
blood-stained earth from the spot, one jute bag with mark "HIGAIN BROILER" lying in the chhaper having blood-stains, one piece of Dalia from the west wall of the shed (chhapar), one piece of wall from the cot having blood-stains and blood- stained earth from the eastern corner of the said room and took all the aforesaid articles into possession vide memo Ex.PG.
On 3.10.2000, during the course of investigation it came into light that the accused made an extra judicial confession before Ram Parkash Ex- Sarpanch of the village Balawas Ahir to the effect that on 26.9.2000 he had committed the murder of Harpal and police had been searching him, therefore, he should help him in producing him before the Police. As such, Ram Parkash Ex- Sarpanch produced the accused before Inspector Jai Parkash, who formally arrested the accused and interrogated him. Pursuant to the statement under Section 27 of the Indian Evidence Act Ex.PJ on 4.10.2000 recovery of an iron pipe and the rust colour pant, a blue coloured banian ( both sustains with blood) and a pair of chappel were recovered near Bani under bushes. He also disclosed that he had kept concealed the body of Harpal after chopping of his hand in a ditch situated near eastern corner of kotha adjoining the poultry farm (where he had murdered him). He further disclosed that on 28.9.2000 he had thrown the dead body of Harpal in the millet field and left the kassi after washing the same in the poultry farm. He got recovered the aforesaid articles which were taken into possession by the Investigating Officer vide recovery memo Ex.PJ The motive behind the occurrence is that on 26.9.2000 at about 11/11.30 a.m. some altercation had taken place between the accused and the deceased regarding providing of water to the hen whereas the accused told that the water had already been served to the hen, on this the deceased had slapped the accused and they had also grappled with each other. PW Satish Kumar had Crl. A. No.898-DB of 2004 4
intervened. Then Ram Bharose had threatened the deceased that he will teach him a lesson. Thus, the accused in order to have vengeance committed the murder of Harpal.
After the challan was presented the accused was charged under Sections 302 read with Section 201 IPC, to which he pleaded not guilty and claimed trial.
On commencement of trial, the prosecution examined as many as 14 witnesses namely Jhabar Singh complainant (PW-1), Ram Parkash (PW-2), Dharampal, Draftsman (PW-3), Constable Jaipal Singh (PW-4), Rattan Lal, Photographer ( PW-5), Constable Mahesh Kumar (PW-6), ASI Tulsi Ram (PW- 7), Sub Inspector Lal Singh (PW-8), Sub Inspector Magan Singh (PW-9), Satish Kumar (PW-10), Jagdeep (PW-11), Sub Inspector Ved Pal (PW-12), Deputy Superintendent of Police Jai Parkash (Retd.) (PW-13) and Dr. P.D.Mehra (PW- 14).
After tendering into evidence documents Ex,.PA to PO and report Ex.DA and also report of the Forensic Science Laboratory Ex.PC and report of the Serologist Ex. PC/1, the prosecution closed its evidence.
In his statement recorded under Section 313 Cr.P.C., the accused denied all the allegations and further submitted his false implication in the case.
He did not lead any evidence in defence.
After scrutiny of the evidence on the record and hearing the Public Prosecutor as well as the defence counsel, the trial Court convicted the accused under Sections 302 and 201 IPC and sentenced accordingly.
It is a blind murder case. Admittedly, there is no direct evidence on the record to connect the accused with the crime. The prosecution in order to bring home the charge against the accused has placed reliance on the following Crl. A. No.898-DB of 2004 5
circumstantial evidence :-
"(1) The accused was last seen with the deceased at the Poultry Farm on 26.9.2000 at about 11/11.15 a.m. by PW-10 Satish Kumar. He has further stated that on the aforesaid date and time he saw that Harpal had asked the accused to serve water to the hen whereas the accused told that the water had already been served to the hen. Then Harpal again told the accused that the tap (water tank) was empty and he had slapped Ram Bharose, then Ram Bharose had asked Harpal that he would teach him a lesson, both had grappled on the issue and he had come at their rescue.
(2) The second piece of evidence collected by the prosecution is an extra judicial confession which was allegedly made by the accused before PW-2 Ram Parkash. PW-2 Ram Parkash stated before the police that on 3.10.2000 met him on the railway crossing of village Qutubpur where he confessed before him that he had murdered Harpal on 26.9.2000 and he had run away. The police was after him, therefore, he should produce him before the police. Thereafter, he produced the accused before the police on 3.10.2000.
(iii) The third circumstance is the recovery of iron pipe, chappel of Harpal, the clothes worn by him at the time of incident from near the pond in pursuance of the statement Ex. PJ got recorded by him under Section 27 of the Indian Evidence Act. The prosecution has also urged that after the Crl. A. No.898-DB of 2004 6
incident, the accused had run away. He was servant of the deceased, therefore, he had to explain his death. Non- explanation of the reasons for his absconding from 26.9.2000 till 3.10.2000 also directly points towards the guilt of the accused.
To the contrary the counsel for the appellant has in his arguments tried to demolish the case of the prosecution by urging that unless direct evidence, the indirect light circumstances may throw suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction. The prosecution has failed to establish the missing link in the chain of circumstances, as established by the prosecution in the Court. The motive behind the commission of the crime assumes more significance in case of direct evidence but here in this case the motive part is missing. It has also been contended that the prosecution has failed to prove the recoveries from the accused in a proper manner and the recoveries so effected do not, in any way, connect the accused with the crime. The extra judicial confession has also not been duly proved. Therefore, the benefit of doubt should be extended to the accused.
Having given our thoughtful consideration to the aforesaid contentions, we impress to agree to the same.
There is no direct evidence to prove this case and the conviction is founded solely on the circumstantial evidence in the shape of (a) the recovery of clothes worn by the accused, (b) the recovery of the weapon of offence i.e. kassi and iron pipe, (c) the evidence of last seen (d) the extra judicial confession and the motive. The Apex Court in case of Ashok Kumar Chatterjee vs. State of Madhya Pradesh AIR 1989 (SC) 1890 observed as under :- Crl. A. No.898-DB of 2004 7
"(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 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 on 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." Now testing the instant case on the touch stone of the aforesaid principles as laid down by the apex Court, we are of the view that the prosecution has not been successful in proving the guilt of the accused for the following reasons :-
(i) As regards motive, the prosecution has alleged that the accused indicated to the deceased on 26.9.2000 to have vengeance for the reasons that Harpal deceased had grappled with the accused and slapped for not responding to his command regarding providing of water to the hen.
This motive does not stand substantiated from the evidence on the record. PW-1 Jhabar Singh is a close relative of the deceased. He has admitted that Harpal deceased is the son of his real brother Ram Kumar. He has admitted that he lodged the report regarding missing of Harpal on 28.9.2000 and Crl. A. No.898-DB of 2004 8
again on 29.9.2000. The report dated 28.9.2000 has not been placed on the record. PW-10 Satish Kumar is a witness to the motive. He has also stated that he got his statement recorded on 28.9.2000 at the poultry farm of Harpal but the prosecution has not brought on record this statement in order to show that Satish Kumar had disclosed about the motive on 28.9.2000 i.e. before the recovery of the dead body. It has further come in evidence of PW-10 Satish Kumar that he is also closely related to Harpal deceased as he stated that Harpal was the son of his real uncle. Further, it is surprising that though Satish Kumar remained in the company of complainant Jhabar Singh in connection with the search of Harpal deceased from 26.9.2000 to 28.9.2000 but he did not disclose about the motive to the complainant because the complainant in the FIR Ex.PA/2 did not mention about the dispute between the deceased and the accused regarding providing of the water to the hen grappling/slapping by the deceased to the accused. Rather, in his statement Ex.PA/2 Jhabar Singh not only doubted the accused but also one Parveen. All these go to show that Satish Kumar PW-10, real cousin of the deceased, was introduced as a witness later on to prove the circumstance of last seen. The supersession of the statement dated 28.9.2000 as well as the FIR of the same date also hit the prosecution case at the route. Therefore, it will not be unsafe to hold that the theory with regard to motive is an afterthought.
Now coming to the next circumstance regarding the extra judicial confession allegedly made before Ram Parkash (PW-2) who is also none else but the relative of the deceased. He has admitted in his testimony that Harpal is his brother in the village from his brother-hood. According to him, the accused had made extra judicial confession on 3.10.2000. But from the testimony of PW-1 Jhabar Singh, it is proved that the accused remained present on the poultry farm from 26.9.2000 to 29.9.2000 and it was the accused who had informed Jhabar Crl. A. No.898-DB of 2004 9
Singh on 29.9.2000 that the dead body of Harpal was lying in the millet field.
Ram Parkash (PW-2) was not the person in authority at the time when the accused made an extra judicial confession before him since Ram Parkash was a relative of Harpal deceased, therefore, he could not expect any help from him. He has not narrated as to what extra judicial confession was made by the accused.
The story of alleged confession seems to be concocted and an afterthought.
Admittedly, the complainant did not doubt over the accused in his report dated 28.9.2000 and he started doubting Ram Bharose after he informed the complainant about the existence of dead body in the millet field. Thus, no reliance can be placed on the testimony of Ram Parkash (PW-2). Even otherwise, evidence of extra judicial confession is a weak type of evidence and the same, in the absence of any corroborative evidence, cannot be relied upon in order to base conviction against the accused. As per disclosure statement Ex.PJ, the accused disclosed that he had kept concealed one iron pipe, terricot pant of rust colour, one blue colour sandow banian weared by Harpal and one pair of chappel of black colour in the Kair Jhund of Bani of village Balawas and he had also kept concealed a kassi inside the northern-eastern corner of the room and thereafter on 28.9.2000 after taking out the dead body from the pit had placed the same in the millet field and he had left kassi after wash at the poultry farm and he could get the same recovered. The only witness namely Jagdeep (PW-11) examined by the prosecution has not proved the disclosure statement.
He has testified that the accused had kept concealed the iron pipe, the kassi and had hidden the dead body in a pit of the farm and on 28.9.2000 he had thrown the dead body in the crop of millet. He further deposed that he could get the same recovered kassi, banian, chappel etc. after making demarcation of the place.
But this statement made by Jagdeep is in direct contradiction with the disclosure Crl. A. No.898-DB of 2004 10
statement Ex. P3. PW-11 did not disclose in his statement as to if and where he had concealed iron pipe, the clothes, the kassi and the dead body. Even otherwise, the disclosure statement made by the accused regarding concealing of the dead body or its parts is not admissible in evidence being the confession against himself. His funny statement also impresses us to disbelieve the aforesaid recoveries wherein he has stated that he came to know about the dead body of Harpal in the morning of 29.9.2000. He had reached the spot at 7 a.m.
and the police had arrived and inspected the spot for about 2 or 3 hours. The kassi was lying near the dead body. If the kassi was lying near the dead body on 29.9.2000 then its recovery at the instance of the accused certainly becomes doubtful. Regarding other articles he has admitted that the police had inspected the spot, therefore, it certainly had recovered the other articles i.e. pair of chappel, banian and pant which were allegedly concealed at the same place.
Even otherwise, the recovery of chappel, banian and pant allegedly worn by the deceased at the time of occurrence becomes doubtful as Dr. P.D.Mehra ( PW- 14), who had conducted the post mortem on the dead body had stated that at the time of post mortem examination the deceased was wearing blue T-shirt, red banian, light blue trouser and light blue underwear. Thus, if the accused had removed the wearing apparels of the deceased and concealed the same in the millet field then how these clothes came on the body of the deceased at the time of post mortem examination. It will also be significant to mention here that the inquest report Ex. PH also discloses that T-shirt of blue colour, banian, pant and underwear were found on the body of the deceased at the time of conducting the inquest by the Investigating Officer. As such, the recoveries appear to have been foisted against the accused to connect him with the crime.
The medical evidence is also not connecting the instant case with Crl. A. No.898-DB of 2004 11
the date of occurrence as well as recovery of weapon of offence from the accused. First of all, according to the prosecution the accused caused injury on the head with the iron pipe but PW-14 Dr. P.D.Mehra, Medical Officer, who conducted the post mortem examination on the dead body of Harpal on 29.9.2000 observed the following injuries :-
"1. An incised wound 4 cm x 1 cm was present on the right front parietal region, just lateral to mid-line. Right parietal bone was fractured extra dural haemotoma was present over the right parietal lobe.
2. 2 cm x 1 cm incised wound was present on the left side of the chin below mandible. It was skin deep.
3. Right upper limb was amputated just above the wrist. Radus ulna were clean cut. Muscles upto mis arm were absent.
4. Left upper limb was amputated just above the wrist. Radius and ulna were clean cut and visible."
He further opined that the cause of death was due to the injuries sustained by the deceased and which were sufficient to cause death in due course of time. The duration of injuries was variable and between a death and post mortem examination was 24 to 72 hours. Iron pipe Ex. PN. It was round in shape and could not cause an incised wound 4cm x 1cm on the right fronto parietal region, which according to the Doctor is an incised wound".
It is the definite case of the prosecution that deceased was murdered on 26.9.2000 and his autopsy was conducted by Dr. P.D.Mehra on 29.9.2000 i.e. after 72 hours. Dr. Mehra also observed that the parietal region mid-line was present in lower limbs were lost site that rigormortis develops after 12 hours and remains in existence for next 12 hours to 24 hours.
Crl. A. No.898-DB of 2004 12
But in this case since the rigormortis was present even after 72 hours of his death then it demolished the prosecution case to the effect that the deceased was killed on 26.9.2000 rather it indicates that he was killed on 27 or 28th
of September 2000. According to the prosecution the accused removed the dead body from the pit where he had concealed the same and threw it away in the field but Dr. Mehra has stated that no earth mud or soil was found on the dead body or the clothes at the time of post mortem examination. Dr.Mehara has also admitted that rigormortis fully developed within 12 hours and it passes 12 and completely passes after 36 hours. Thus the medical evidence totally demolishes the case of the prosecution.
As a matter of fact the prosecution has also failed to establish whether the deceased had gone to Rewari on 26.9.2000 as stated by Satish Kumar PW. If his testimony is believed then he had left for Rewari in the day at 11/11.15 a.m. and thereafter he must have been murdered somewhere in the way.
As such in the present case, the link evidence is completely missing in the case and the prosecution has failed to establish whether deceased Harpal had gone to Rewari on 26.9.2000. It has also become doubtful that the deceased had fought with the accused and he had slapped the accused. It is also doubtful as to when he returned from Rewari. Ram Parkash and Jhabar Singh PWs state that they did not find anything on the Poultry Farm from where they could raise suspicion about the murder of Harpal at the Poultry Farm they continued searching for him up to 28.9.2000, there is nothing in evidence that the accused used to stay at the Poultry Farm. It is also doubtful that the fatal injury caused on the head of the deceased was the result of the weapon recovered from the accused. Recovery of kassi and the clothes of the deceased from the place Crl. A. No.898-DB of 2004 13
of occurrence and presence of the accused is also doubtful. The time of occurrence has also contradictory with the medical evidence. We do not agree with the argument that the accused has failed to explain the death of the deceased as the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is the trite law and no decision has taken a contrary view. In the instant case the accused appears to have been implicated that he volunteered to inform about the recovery of the dead body. It also shows that he had not apprehended if information given by him will tell upon him but he never knew about its fate. Thus we are hesitant to hold that the incriminating circumstances as detailed in the aforesaid part of the judgment directly point towards the guilt of the accused. Having scrutinized the impugned judgment, we are of the firm an opinion that the trial Court did not properly appreciate the aforesaid points while opining about the guilt of the accused. Consequently, on appreciation of evidence, the judgment passed by the trial Court has failed to stand to the scrutiny of this Court.
For the foregoing reasons, we accept the appeal, set aside the impugned judgment and acquit the accused of the charge framed against him and direct him to be set at liberty. Fine, if any, deposited by the accused be refunded against proper receipt.
( A.N.JINDAL )
( AMAR DUTT)
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