Criminal Appeal No.480-DB of 2001 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of Decision : 01.07.2008
Vikram .....Appellant
versus
State of Haryana .....Respondent
CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH.
HON'BLE MR.JUSTICE A.N.JINDAL.
Present : Mr.R.S.Rai, Senior Advocate with
Mr.Anurag Arora, Advocate, for the appellant.
Mr.S.S.Randhawa, Additional A.G. Haryana with
Mr.Adish Gupta, Advocate.
-.-
UMA NATH SINGH, J.
This judgment shall also dispose of connected Criminal
Revision No.218 of 2002 (Dharambir versus Satbir), filed by complainant
Dharambir against the judgment of acquittal of co-accused Satbir. Both
these matters arise out of a judgment dated 24.8.2001, passed by learned
Additional Sessions Judge, Faridabad in Sessions Case No.63 of 12.5.2000
recording acquittal of accused Satbir and conviction of accused-appellant
Vikram under Sections 302/34 IPC and sentencing him to undergo RI for
life with a fine of Rs.1000/- with direction to undergo RI for further one
year in case of default of payment of fine. However, on other counts,
namely 201 and 120-B IPC, the accused-appellant Vikram was acquitted.
It appears from the prosecution case that FIR (Ex.PA) was
recorded on the statement of Dharambir Singh (PW1), on 22.10.1997 at
Criminal Appeal No.480-DB of 2001 2
10.30 a.m., by ASI Dharam Pal, Incharge, Police Post, Suraj Kund. In his
statement, Dharambir mentioned that deceased Subhash, his cousin, was
the eldest of three brothers who are the sons of his uncle Pillu Ram. His
uncle Pillu Ram died about 5-6 months ago. On 20.10.1997, deceased
Subhash went to the shop of one Satbir son of Bhole Ram in connection
with some auction sale to be conducted by some local Committee on his
Scooter No.DL-3SG-3387. He parked the scooter near the quarters and
went to the shop of Satbir on foot. However, the auction process was over
before he could reach there and since then his whereabouts were not known.
His scooter was found parked on the next day i.e. 21.10.1997 in the morning
behind the house of one Seelak Ram (PW10) of Lakkarpur. Search of
Subhash could not yield any immediate result. On 22.10.1997, in the
morning hours, during further search of Subhash on enquiry from two lady
labourers, they informed that they had seen a male dead body lain in a
gunny bag at a place ahead of the telephone exchange and both the feet of
dead body were protruding from the gunny bag. Hence, complainant
Dharambir, Seelak Ram and one Tas Ram reached the spot immediately,
and they identified the dead body to be of Subhash. On removing the gunny
bag, they noticed that the neck of dead body was missing and both the hands
had clenched. Leaving Seelak Ram and Tas Ram near the dead body, the
complainant went to police post for reporting the matter. According to the
statement given by complainant Dharambir, some unknown person
committed the murder of his cousin Subhash and the head of dead body was
missing. Only its trunk was found lain in the gunny bag. His statement
was, thus, recorded and the police registered a case under
Criminal Appeal No.480-DB of 2001 3
Sections 302/201/34 IPC and began investigation. ASI Dharam Pal (PW12)
sent the statement of complainant Dharambir (PW1) to Police Station for
registration of a formal FIR, which was recorded vide Ex.PA/1 by ASI
Gian Singh. ASI Dharam Pal (PW12) visited the spot thereafter and
conducted inquest proceedings of dead body. He also prepared a site plan
and recorded the statement of witnesses under Section 161 Cr.P.C. on the
same day and sent the dead body for postmortem examination. On
23.10.1997, he received a secret information and laid a blockade. On that
day, co-accused Satte @ Satender was produced by one Suresh Kumar (not
examined). Investigating Officer Dharam Pal (PW12) recorded the
disclosure statement given by accused and pursuant thereto, the head of
dead body was recovered and sent for postmortem examination. At his
instance, knife, the weapon of offence, was recovered and taken into
possession vide Ex.PV/1 and a rough site plan of scene of recovery of knife
was prepared vide Ex.PV/2. Investigating Officer arrested co-accused Satbir
(since acquitted) on 25.10.1997 and accused Vikram on 1.11.1997. Vikram
suffered a disclosure statement and pursuant thereto, a knife, the weapon of
offence, was recovered. Vide Ex.PB, the place where dead body was thrown
by accused persons was exhibited on pointing out by accused Vikram. A
rough site plan of place of recovery of the head of the dead body was drawn
vide Ex.PX and the place where the incident took place was shown vide
Ex.PZ, as pointed out by co-accused Satte. Investigating Officer Dharam
Pal also prepared a site plan (Ex.PB/1) of the place from where a knife
was recovered on pointing out by accused Vikram. After completion of
Criminal Appeal No.480-DB of 2001 4
investigation, a challan was put by Inspector Mohd. Ishaq Khan (PW9)
under Sections 302/201/120/34 IPC. On committal order, the case was
placed before learned trial Judge, who vide his order dated 9.2.1998, framed
the charges against accused persons, who pleaded not guilty. Learned trial
Judge on appreciation of evidence on record, while placing reliance on the
testimony of Gamman (PW2) supported by the disclosure statement given
by accused Vikram and recovery of incriminating articles pursuant thereto,
recorded the impugned judgment of conviction and sentence.
Learned senior counsel Shri R.S.Rai, appearing for the
appellant, assailed the impugned judgment on the grounds: (i) that the
prosecution has not attributed any motive to accused appellant Vikram for
commission of offence; (ii) that the accused appellant has denied any
relationship with Gamman (PW2), who claimed to be distantly related to
him; (iii) that the circumstances wherein the disclosure statement was made
before the police by accused appellant Vikram does not inspire confidence
as he could not have expected any help from Gamman (PW2), who admitted
that he did not know accused Vikram from before, except that Vikram’s
sister was married to his cousin brother’s son, whose name also he did not
know; (iv) that in the obtaining circumstances, the alleged confessional
statement has been recorded only in order to falsely implicate the accused
appellant, and (v) that accused appellant Vikram was aged only about 19-20
years at the time of offence and he was not helping in the business of his
brother Satbir, who has since been acquitted.
On the other hand, learned Additional Advocate General,
Haryana, strongly opposed the submissions of learned senior counsel for the
Criminal Appeal No.480-DB of 2001 5
appellant, inter-alia, contending: (i) that Gamman (PW2) has clearly stated
in so many words that he was closely related to both the parties, and there is
no contradiction or infirmity whatsoever in his testimony when he stated
that he produced the accused appellant before the police, but he was allowed
to go and then after 4 days, the accused was interrogated and taken into
custody, and (ii) that accused appellant Vikram, brother of co-accused
Satbir, shared the motive with his brother.
We have carefully considered the rival submissions and closely
scrutinized the records.
The prosecution has produced as many as 12 witnesses,
whereas the defence has examined none. Dharambir (PW1) is the author of
FIR. In his testimony (cross-examinations), this witness has stated that
when he reported the matter to police, he did not know as to how this
murder took place. He admitted that at the time of reporting to police, he
did not state that about 15 days ago there had been a quarrel between
deceased Subhash and accused Satbir regarding the amount of Rs.35,000/-
Gamman (PW2) in his testimony has stated that accused
appellant Vikram was related to him as his sister was married to his nephew
named Lala. He only remembered the name of his nephew and not of his
wife, sister of accused Vikram. He stated that a few days ago, accused
Vikram had come to him in the evening and told that he was frightened of
police, which was after him because he and Satte as per their planning
committed the murder of Subhash. They took Subhash to chobara of 12
quarter and cut his neck with the help of knife. Next day morning, this
witness took accused Vikram along for Faridabad and while going towards
Criminal Appeal No.480-DB of 2001 6
Lakkarpur on foot, they met police on the way and produced accused
Vikram. Accused Vikram sought time from the police, however this
witness went to Lakkarpur and thereafter to village Ghatat. He returned on
fourth day in the evening. Next morning thereafter, he went to Police
Station and on the way, he met one Pappu (not examined) and they both
reached the Police Station. In the Police Station, in his presence, accused
Vikram was interrogated and during interrogation, he made a disclosure
statement that he had concealed a knife and got the same recovered. His
statement was reduced into writing, which is marked as Ex.PB. Police
arranged for a private vehicle and went with this witness and accused
Vikram towards Surajkund. Vikram asked the vehicle to be stopped near a
telephone exchange. He then led the police to a place known as 12 quarter
and pointed out the place. He thereafter led the police to a ganda nala and
there also, he pointed out some place to the police. In regard to all these
three places, the police prepared memos as Ex.PC, Ex.PD and Ex.PE. Near
ganda nala, he offered to take the police to the place of concealment of knife
in village Ghotal. Accused Vikram asked the vehicle to be stopped and then
led the police to a place where a big stone was lying. From underneath the
stone, he got recovered the knife, which was stained with blood. Finally,
sketch of knife was prepared, which was attested by this witness and Pappu
(not examined). Knife (Ex.PF) was made into a sealed parcel and taken
into possession vide Ex.PG. Police also recorded the statement of this
witness. From the above statement of this witness, this is not clear as to for
what purpose he stayed for four days at village Lakkarpur and village
Ghatat after he produced accused Vikram before police and he was allowed
Criminal Appeal No.480-DB of 2001 7
to go. This is also not clear as to why he went to police station again after
four days and that too at the time when accused Vikram was being
interrogated. Moreover, the details of place where from the knife was
recovered pursuant to the disclosure statement given by accused Vikram
also appear to be exaggerated and unbelievable. This seems unusual that
accused Vikram while being in police custody would have taken police
from place to place for recovery of knife in the manner as stated by this
witness. Rakesh Kumar (PW3) is a Draftsman, who prepared scaled site
plan (Ex.PH). Constable Ram Mehar (PW4) produced a true copy of DDR
(Ex.PJ) to show that mother of deceased Subhash had made a missing rapat.
Dr.C. Pal (PW5), Deputy Chief Medical Officer, conducted the postmortem
of headless dead body on 22.10.1997 and noticed the injuries as reproduced
below:
“1. Head and neck missing, amputed at the level of C5
vertebral body. A circular incised wound regular in out
line is present posteriorly but irregular interiorly. AP
diameter of wound was 6 inches and transverse diameter
were 5 inches. All the margins were sharp and clean
with clotted blood, all over the wound. Other structure
of neck also cut at the same level.
2. Skin of palm and sole corrugated and sodden. Skin of
back could be pealed of easily leaving white raw surface.
3. Spinal cord was cut at the level of C5. Wound was clean
cut with clotted blood. Vertebral Body of C5 was cut to
the lower part.”
Criminal Appeal No.480-DB of 2001 8
Dr.Basant Lal Sirohiwal (PW6) conducted the postmortem of
the neck and head of dead body of deceased and noticed the injuries as
reproduced below:
“1. All incised stabbed wound situated on the middle front
of upper neck near chin in transfer plain 5 cm long both
the margins were regular going deep, pearsing next
structures and going deep below the level of hyoid bone
to communicate with the decapitated level of neck,
hyoid bone was intact. Left angle was more acute as
compare to right.
2. Decapitated was showing clean cut regular margins all
around the neck. More so on the back aspect with
additional flaps of skin with regular margins on both
sides near the angle of mandible. The cut was about 14
cm in transfer plain and 16 cm in anterior posterior plain.
The cut was situated 3.5 cm below the chin in mid line.
5 cm below the right ear lobule and 5.5 cm below left ear
lobule. A flab of additional skin was hanging on both
sides near the level of a angle of mandible 4 cm on right
side and 6 cm on left side of neck. The under lying
muscle with soft tissues and large blood vessels were cut
through and through. The transfers process of C4
cervical vertebra and the lower border of body was cut
through and through. The spinal cord was softened and
cut through and through at the same level. Infiltration of
Criminal Appeal No.480-DB of 2001 9blood was present around the cuts and of vertebra and in
the soft tissues, muscles were showing sharp cut slicing
effect more so on back sides with infiltration of blood.”
All the injuries were depicted in a diagram and on internal
examination of scalp, no injury was noticed on scalp, nor any fracture.
Brain was liquified and decomposed and sagittal suture in inner table was
showing obliteration on frontal aspects. On the back aspect, it was in the
process of obliteration. Hyoid wound was intact and the structures for about
0.2 cm below the level of hyoid wound were missing. Tongue was also
found intact and normal. Dr.Basant Lal Sirohiwal (PW6) in his opinion
stated that this was a head of a young adult male. Injuries were ante-
mortem and homicidal in nature, which were caused by a heavy sharp
cutting weapon. Duration of death was about 4-5 days before the
postmortem. Looking to the nature of injuries in the neck, the head was
found to belong to the same body. The Doctor proved Ex.PN as a carbon
copy of the postmortem report. Hem Raj (PW7) has not supported the
prosecution case in toto and he was declared hostile. In his cross-
examination by PP, he has stated as:
“I have not stated before the police that two persons, namely,
Vikram and Satte @ Satender came to me and demanded key of
my room and further told that they are to arrange a party on that
night and he should sleep somewhere else. (confronted with
portion A to A in Ex.PC where it is so recorded). In the
morning the door was bolted and when I entered, then the
bedding of another man who used to sleep in my room was
Criminal Appeal No.480-DB of 2001 10missing. I also noticed that 2-3 mug of water had also been
taken out from the water lying in the basket. It is wrong to
suggest that I am not supporting the whole version falsely.”
Constable Mahesh Kumar (PW8) is a formal official witness. He
only took the dead body for postmortem examination and submitted the
parcel handed over to him by the Doctor at the Police Station. Inspector
Mohd. Ishaq Khan (PW9) was the SHO of Police Station, NIT, Faridabad.
He submitted the report under Section 173 Cr.P.C. Seelak Ram (PW10)
identified the dead body as also incriminating articles connected therewith
at the time of recovery. Constable Ghanshyam (PW11) tendered his
evidence on affidavit (Ex.PT) as he delivered the incriminating articles in
FSL for chemical examinations. ASI Dharam Pal (PW12) is the
Investigating Officer. Regarding arrest of accused Vikram, recording of his
disclosure statement and recovery of weapon of offence pursuant thereto,
this witness in his cross-examinations has stated as:
“I arrested Vikram accused near village Lakkarpur at about 5
pm. Recovery of knife was effected on 4.11.97. It is incorrect
that Vikram never made any disclosure statement nor got
recovered any knife. It is incorrect that all the recovery
proceedings are fabricated. It is incorrect that my investigation
is tainted and partial.”
As regards accused Satte @ Satender, it is pertinent to note that
in the impugned judgment rendered by learned trial Court, he is shown to be
a proclaimed offender, whereas in his examination-in-chief, ASI Dharam
Pal (PW12), has stated as:
Criminal Appeal No.480-DB of 2001 11
“I prepared the rough site plan (Ex.PZ) of the place where
occurrence is alleged to have taken place and the map was
prepared on the pointing out of Satte accused, who is now
dead.”
Learned Additional Advocate General, appearing for the State
of Haryana, has not received any instruction to clarify this contradiction.
Accused appellant Vikram in his statement under Section 313
Cr.P.C. denied all the four questions put to him and pleaded innocence.
However, he did not produce any defence witness in support of his version.
Gamman (PW2) is the star witness in this case, on the basis of
whose testimony, conviction of accused appellant Vikram has been
recorded. Gamman (PW2) has admitted that he did not know the details
about the death of deceased. There is nothing on record to suggest that he
was so intimately related to accused Vikram, which could have inspired his
confidence in this witness. In these circumstances, this is doubtful that the
accused appellant would have confessed his guilt and asked for help in the
police case. As stated by witness Gamman (PW2), accused Satbir, brother
of accused Vikram had a quarrel with the deceased about 15 days prior to
the date of incident and thus, he was attributed a motive. But it does not
stand to reason as to why accused Vikram has been convicted for sharing
the same motive with his brother Satbir who has been acquitted on the same
set of evidence by the trial Court. Moreover, accused Vikram was
19-20 years of age at the time of incident and there was no evidence
that he used to look after the business of his brother co-accused Satbir.
Criminal Appeal No.480-DB of 2001 12
Besides, witness Gamman (PW2) has not mentioned in detail about the
manner in which the murder of deceased Subhash was committed by
accused Vikram, which creates further doubt as to whether accused Vikram
really gave a disclosure statement in the presence of this witness.
Thus, in view of dearth of credible evidence regarding the
motive, involvement of accused, disclosure statement given by accused
Vikram and the recovery pursuant thereto, accused appellant Vikram
deserves to be given benefits of doubt as the entire prosecution case is based
only on circumstantial evidence.
Hence, the impugned judgment dated 24.8.2001 passed by
learned Additional Sessions Judge, Faridabad, in Sessions Case no.63 of
12.5.2000, is set aside, and this Criminal Appeal No. 480-DB of 2001 is
allowed. Resultantly, accused appellant Vikram is acquitted of the charge
under Section 302 read with Section 34 IPC.
So far as the connected Criminal Revision No.218 of 2002 filed
by complainant Dharambir against the order of acquittal of co-accused
Satbir, is concerned, except the testimony of Gamman (PW2) to the effect
that the deceased owed Rs.35,000/- to Satbir and there was a quarrel 15
days prior to the incident, there is no other evidence to reverse the judgment
of acquittal recorded by learned trial Court. Further, in view of various
judgments of Hon’ble the Apex Court, including the ones (i) 2002(3) RCR
(Crl.) 861 (Harijana Thirupala and others versus Public Prosecutor, High
Court of A.P., Hyderabad; (ii) 2004(2) RCR (Crl.) 940 (Shingara Singh
versus State of Haryana and another, and (iii) AIR 2005 SC 2439 (State of
UP versus Gambir Singh and others), if two views are possible, the view
Criminal Appeal No.480-DB of 2001 13
taken in favour of the accused by the trial Court should be accepted as the
reasonable and possible view.
Accordingly, Criminal Appeal No. 480-DB of 2001 is allowed
and Criminal Revision No.218 of 2002 is dismissed.
(UMA NATH SINGH)
JUDGE
1.7.2008 (A.N.JINDAL)
pk JUDGE
Whether this judgment be referred to Reporter or not? YES/NO