Criminal Appeal No. 958 DB of 2004
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Appeal No.958 DB of 2004
Date of Decision: 16.1.2009.
Manoj Kumar
.......Appellant
Vs.
The State of Punjab
......Respondent
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
PRESENT: MR.S.S.Rana, Advocate, for the appellant.
Mr Rajesh Bhardwaj, Addl. Advocate General, Punjab,
for respondent.
***
DAYA CHAUDHARY, J.
The present appeal arises out of the judgment and order dated
1.11.2004 and 4.11.2004 in Sessions Case No.8 of 26.4.2002 passed by
Sessions Judge, Kapurthala, vide which Manoj Kumar accused-appellant
has been convicted for offence under Sections 302 read with Section 34 IPC
and 201 IPC and sentenced as under:
U/s 302/34 IPC to under imprisonment for life and a fine of
Rs.2000/-.In default of payment of fine to undergo
further RI for a period of one month; and
U/s 201 IPC to undergo RI for four years and a fine of
Rs.1000/-. In default of payment of fine to undergo
further RI for one month.
Criminal Appeal No. 958 DB of 2004
-2-Substantive sentences were directed to run
concurrently.
The brief facts of the case, as put up by the prosecution, are
that Sukhchain Singh was working as a Head Teacher in the Government
Middle School, Paddey Bet. On 31.5.2003, at about 6.00 a.m., when he
was passing through the ridge of his fields, he found the dead-body of an
unknown person in the sugarcane crop, which was buried under the earth,
however, a part of that dead-body was lying naked. It appeared to him that
some unknown person after committing the murder had buried the dead-
body. On reaching the village, he narrated the aforesaid fact to Karnail
Singh, Sarpanch and Mohinder Singh, Ex-Sarpanch. Thereafter, he along
with Karnail Singh Sarpanch went to the police station for lodging the
report. In the police station, Sukhchain Singh made a statement Ex.PA,
which was recorded by ASI Iqbal Singh, and on the basis of which, a
formal FIR Ex.PA/2 was registered. The special report Ex.PA/3 was also
sent to the Ilaqa Magistrate.
Thereafter, ASI Iqbal Singh along with Karnail Singh,
Sukhchain Singh and other police officials, reached at the sugarcane fields
of Sukhchain Singh. A telephonic message was also sent to DSP Bholath,
who came to the spot. In his presence the dead-body of an unidentified
person was taken out from underneath the earth. It was taken into
possession vide memo Ex.PB, attested by Sukhchain Singh and Bakshi Ram
ASI. Inquest report Ex.PG was prepared and the same was handed over to
Harjit Singh and Harinderpal Singh, Constables, for getting the post mortem
conducted. The statements of witnesses were recorded. A diary in a badly
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damaged condition was taken out from the pant worn by the deceased
person. It was taken into possession vide memo Ex.PD, attested by
Sukhchain Singh and Bakshi Ram ASI. The site plan Ex.PJ of the place of
recovery of the dead-body was prepared by ASI Iqbal Singh. A
photographer was called at the spot, who took the photographs of the dead-
body, the photographs and negatives of the dead-body were taken into
possession vide memo Ex.PK by SI Sarabjit Singh and the case property
was deposited with the MHC with seals intact.
The investigation of the case was entrusted to Amrik Singh,
Sub Inspector, the then SHO. P.S.Dhilwan. On 26.6.2003 when he was
present in the police station, one Jaswinder Singh alias Chhinda produced
appellant Manoj Kumar before him. He recorded statement of Jaswinder
Singh and arrested Manoj Kumar appellant vide memo Ex.PL and
interrogated. On 30.6.2003, the investigation of the case was entrusted to
ASI Bakshi Ram. Manoj Kumar appellant, who was already in the police
custody, was interrogated in the presence of Constable Gurvinder Singh
and M.C. Ravinder Kumar. During interrogation, the appellant disclosed
that he had kept concealed a ‘Datar’, in the fields of Sukhchain Singh, near
the ridge, in the area of village Nurpur Januhan, about which he only knew.
The disclosure statement Ex.PG of the appellant was reduced into writing
which was attested by aforesaid witnesses. On the basis of the said
disclosure statement, the ‘Datar’ was recovered. A rough sketch of the Datar
(Ex.PD/1) was prepared, which was taken into possession vide memo
Ex.PD, attested by the aforesaid witnesses. After completion of the
investigation, Manoj Kumar, appellant, was challaned.
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After the case was committed to the court of Sessions Judge,
Kapurthala, charge under Sections 302 read with section 34 and 201 of the
Indian Penal Code was framed against the accused-appellant, to which he
pleaded not guilty and claimed trial.
In support of its case, the prosecution examined as many as 9
witnesses.
PW-1 Harvinder Singh, photographer, has deposed that he
took photographs of the dead-body of an unknown person lying in the
sugarcane field. The photographs and negatives are Ex.P1 to P4. PW-2
Sukhchain Singh, who is complainant of the case, has reiterated the same
facts as mentioned in his statement Ex.PA, on the basis of which the FIR
was recorded. PW-3 Jaswinder Singh stated that in the year 2003 Manoj
Mandal and Santosh Mandal were employed by him as labourers and they
were residing in his Dera in a house constructed by him in the area of
village Noorpur Januhan. In the month of May 2003, Sita Ram brother of
Manoj Kumar appellant, asked him to render account to him for the labour
done by him and the amount was paid to Sita Ram, brother of the accused.
Both of them resided in his house for 2 to 3 days and told him that they were
going to Santosh Mandal’s relation, who was residing in a Dera. The
accused along with Sita Ram and Santosh Mandal left his Dera and on the
same night, Sita Ram and Manoj Mandal came back in the late night but
Santosh Mandal was not with them. After some days, Sita Ram and Manoj
Mandal (appellant) told him that they were going to Bihar. In the month of
June, 2003, Manoj Mandal (appellant) again came back to his Dera and no
other person was with him. At that time, the appellant told him that he and
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Sita Ram had come from Bihar and police was after them. The appellant
told him that he and Sita Ram had committed the murder of Santosh Mandal
with a ‘Toka’ meant for cutting sugarcane before they went to Bihar from
Punjab and the dead-body was buried in the sugarcane fields of Sukhchain
Singh. It was further stated by PW-3 that the appellant told him that he be
produced before the police and thereafter he produced the appellant before
the police on 25/26.6.2003 in Police Station Dhilwan and his statement was
recorded by the police.
PW-4 Ravinder Kumar stated that he was a Municipal
Councillor of Dhilwan. On 30.6.2003, he went to police station Dhilwan
where ASI Bakshi Ram interrogated the appellant in his presence. The
accused made a disclosure statement that he had kept concealed a Gandasi /
Toka at the motor of Sukhchain Singh, by burying the same near the ridge
of the tube-well of Sukhchain Singh. The disclosure statement Ex.PC was
reduced into writing, which was thumb marked by the appellant and attested
by him and Balwinder Singh Constable. Further the appellant got recovered
the Toka Ex.P-5 vide recovery memo Ex.PD.
PW-5 ASI Bakshi Ram stated that on 31.5.2003 while he was
posted as ASI in Police Station Dhilwan, he along with ASI Iqbal Singh
went to Bhandal Bet Police Post, and when they reached in the area of
Noorpur Janoha, Sukhchain Singh made statement Ex.PA and in his
presence the dead-body of the deceased was found in the sugarcane field. A
diary from the pocket of deceased was also recovered on which name of
deceased was written. The diary of the deceased was taken into possession
vide memo Ex.PD.
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PW-6 ASI Iqbal Singh stated that he recorded the statement of
Sukhchain Singh. He along with Karnail Singh and Sukhchain Singh saw
the dead-body of the deceased in a sugarcane field. A telephonic message
was sent to DSP Bholath and the dead-body of an unidentified person was
taken into possession vide memo Ex.PB. The dead-body was handed over
to Harjit Singh and Harinderpal Singh Constables for getting the post
mortem conducted. It was further stated by PW-6 that a diary from the pant
of the dead-body was recovered which was in a badly damaged condition.
PW-7 Sub Inspector Amrik Singh stated that on 26.6.2003
while he was posted as Sub Inspector, one Jaswinder Singh produced
Manoj Kumar appellant before him. He recorded the statement of Jaswinder
Singh and the accused was interrogated and arrested vide memo Ex.PL.
PW-8 Lakhi Kant Mandal, father of the deceased, stated that
Sita Ram Mandal and Dalip Mandal are brothers of accused Manoj Kumar.
About two years back, Santosh Mandal was brought by Manoj Kumar
accused and his brother Sita Ram Mandal in the State of Punjab. About
one year and two months back, the Punjab police came to his house in the
State of Jharkhand and showed the diary Ex.P-6 . That diary belonged to his
son Santosh Mandal, which was identified by him from his writing. The
police recorded his statement and he came to Punjab.
PW-9 Dr.Ashok Bhagat, Medical Officer, Civil Hospital,
Kapurthala, stated that on 31.5.2003, he conducted the post mortem
examination on the dead-body of an unknown person as a member of the
Board. He further deposed that the dead-body was putrefied soaked with
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dust. Most of the soft tissues were missing. Right arm amputated at
shoulder. A small piece of cloth was found in the mouth. Both legs were
tied near the ankle with a piece of cloth. Brain metal, soft tissues of
chest,lungs, heart and great mussels were missing. Peritoneum,mouth and
esophagus, stomach and intestines were missing. Liver, spleen, kidneys,
bladder and organs of generation were missing. In the opinion of the doctor
the cause of death was due to asphyxia and injuries as described, which
were sufficient to cause death in the ordinary course of nature. The injuries
were anti-mortem in nature. The probable time that elapsed between injury
and death could not be ascertained and between death and post mortem was
probable more than a month.
Statement of the accused-appellant under Section 313 Cr.P.C
was recorded, to which he pleaded not guilty and claimed innocence. He
pleaded that he has falsely been implicated in the case.
The trial Court after going through the entire evidence on
record and hearing arguments of learned counsel for parties, convicted and
sentenced the accused-appellant as afore-stated. Hence the present appeal.
Mr. S.S.Rana, learned counsel for the appellant, has argued that
case of the prosecution is based on circumstantial evidence and in the case
of circumstantial evidence, the Court should be extra cautious before
arriving at a conclusion that the circumstances are sufficient to bring home
the guilt to the accused and the established circumstances must not only be
consistent with the guilt of accused but, at the same time, they must be in
consistent with his innocence. While appreciating the circumstantial
evidence, the Court should not take in isolation the various circumstances
Criminal Appeal No. 958 DB of 2004
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and it is very necessary to take over-all view of the matter. Mr. Rana further
argued that the prosecution is required to prove its case against the accused
beyond a reasonable doubt and the accused should not be held liable for
committing murder only on the basis of suspicion, conjectures or surmises.
The accused-appellant has been found guilty of the offence as
the trial Court has believed the version of the prosecution that Santosh
Mandal was brought to Punjab by Manoj Kumar appellant and Sita Ram
Mandal for the purpose of doing labour and the father of the deceased was
also examined by the prosecution. According to statement of Lakhi Kant
Mandal PW-8(father of the deceased), Santosh Mandal deceased was his
son and Sita Ram Mandal and Manoj Kumar appellant were belonging to
his village. The father of the deceased identified the handwriting of Santosh
Mandal.
The next circumstance of the prosecution which has been
believed by the trial Court that the deceased was last seen in the company
of Manoj Kumar appellant and Sita Ram Mandal, in the month of May
2003, by Jaswinder Singh. Jaswinder Singh (PW3) stated that in the month
of May 2003 Sita Ram brother of Manoj Kumar accused asked him to give
his account for the labour done by him. It was further stated by Jaswinder
Singh that Manoj Kumar accused and Sita Ram Mandal stayed in his house
for 2-3 days and they told him that they were going to a relation of Santosh
Mandal, who was residing in a house at Bhandal Bet. Manoj Kumar
appellant and his brother Sita Ram Mandal and Santosh Mandal left the
house of Jaswinder Singh on the same night. Later on only Sita Ram and
Manoj Kumar came to his house late in the night and Santosh Mandal was
Criminal Appeal No. 958 DB of 2004
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not with them. He further stated that after some time, Sita Ram and Manoj
Kumar told him that they were going to Bihar. Manoj Kumar accused came
to his house in the month of June 2003 and thereafter the deceased was
never seen by him in the company of Manoj Kumar accused and Sita Ram
Mandal.
The trial Court has relied on the extra-judicial confession of the
appellant before Jaswinder Singh regarding the mode and manner in which
the murder of Santosh Mandal was committed by him, along with Sita Ram
Mandal. The learned counsel for the appellant argued that the extra-judicial
confession without corroboration should not have been relied and
conviction on such extra judicial confession is not safe.
The learned counsel further argued that the dead-body of
Santosh Mandal was not identified by anybody in such like circumstances,
it cannot be said that the dead-body was of deceased Santosh Mandal or
somebody else. as it was totally mutilated and beyond its recognition.
On the other hand, Mr. Rajesh Bhardwaj, learned Additional
Advocate General, Punjab, appearing for the respondent, argued that the
prosecution has proved its case beyond a reasonable doubt on the basis of
circumstantial evidence, last seen theory and extra judicial confession, the
appellant was rightly convicted. There is a complete chain of
circumstances. Moreover, the diary which was recovered from the pant
of dead-body of deceased was identified by the father of the deceased,
connects the deceased with the dead-body. The recovery of the weapon of
offence on the basis of disclosure statement of the appellant connects the
appellant with the crime.
Criminal Appeal No. 958 DB of 2004
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We have heard the arguments of learned counsel for the parties
and have perused the evidence on record.
The case of the prosecution solely based on circumstantial
evidence. The first circumstance on which reliance was placed by the
prosecution is that Santosh Mandal son of Lakhi Kant Mandal was brought
to Punjab by Manoj Kumar and by Sita Ram Mandal from the state of
Jharkhand for the purpose of doing labour. In this case, Lakhi Kant Mandal
father of the deceased was examined by the prosecution as PW-8. As per
statement of Lakhi Kant Mandal, Santosh Kumar Mandal was his son and
Sita Ram Mandal and Dalip Mandal are brothers of Manoj Kumar appellant.
It was further stated by PW-8 Lakhi Kant Mandal that his son Santosh
Mandal was brought by Manoj Kumar appellant and his brother Sita Ram
Mandal. The diary which was recovered from the pant of dead-body was
identified by him on the basis of handwriting of deceased Santosh Mandal.
The second circumstance is that the deceased was last seen in the compnay
of appellant. In this regard, PW-3 Jaswinder Singh stated that at the time of
sowing and harvesting of the crop, the labour from Bihar used to be
employed by him and in the year 2003, Sita Ram Mandal, Manoj Kumar and
Santosh Mandal were employed by him as labourers. They were residing in
his house. It was stated by Jaswinder Singh that Sita Ram, Manoj Kumar
(appellant) and Santosh Mandal went to Bihar but when came back, they
were two i.e. Sita Ram and Manoj Kumar but Santosh Mandal was not with
them.
The next circumstance on which the prosecution has placed
reliance is that an extra-judicial confession made by accused before
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Jaswinder Singh (PW3) regarding the mode and manner in which the
murder of Santosh Mandal was committed. Jaswinder Singh PW-3 before
whom the extra-judicial confession was made, has no ill-will, grudge or
prejudice against Manoj Kumar appellant to depose against him falsely.
The extra-judicial confession made before Jaswinder Singh cannot be said
that the said confession was not voluntary. It has specifically been stated
by Jaswinder Singh that the deceased and accused ( two brothers) were
employed by him as labourers and they were also residing in his house and
since they belong to the State of Jharkhand, they did not have any relative
or close person in the State of Punjab with whom they could think to make a
disclosure statement, therefore, he was chosen as a person before whom,
the appellant could make the disclosure statement. In the disclosure
statement before Jaswinder Singh, it was clearly mentioned that the
appellant and his brother Sita Ram had buried the dead-body in the
sugarcane fields of Sukhchain Singh. Moreover, there is nothing on the
record to show that there was any pressure or any influence of anybody to
make extra-judicial confession with regard to commission of murder of
Santosh Mandal before Jaswinder Singh.
The next circumstance is that on 30.6.2003 ASI Bakshi Ram
interrogated appellant Manoj Kumar when he was in police custody. He
made a disclosure statement to the effect that he had kept concealed a ‘Datar’
in the fields of Sukhchain Singh by burying the same near the tube-well and
the recovery of the Datar was effected on the basis of disclosure statement.
Hon’ble the Apex Court in several cases has expounded
principles for cases based on circumstantial evidence. In the case of
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C.Chenga Reddy & Ors. v. State of Andhra Pradesh, 1996(3) RCR
(Crl.) 793 it has been observed as under:
” In a case based on circumstantial evidence, the settled
law is that the circumstances from which the conclusion
of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. Moreover,
all the circumstances should be complete and there
should be no gap left in the claim of evidence. Further,
the proved circumstances must be consistent only with
the hypothesis of the guilt of the accused and totally
inconsistent with his innocene….”
Further, in Padala Veera Reddy v. State of Andhra Pradesh and others
1990 (2) RCR (Crl.) 26, it was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the following tests:
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 guilt of the accused and such evidence should not only be
Criminal Appeal No. 958 DB of 2004
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with his innocence.”
Keeping in view the facts mentioned above, the present case is
based on circumstantial evidence and the circumstances from which the
conclusion of the guilt is drawn has been fully proved and are conclusive in
nature. Moreover, all the circumstances are complete and there is no gap
left in the chain of evidence. The proved circumstances are consistent with
the hypothesis of the guilt of the accused and totally inconsistent with the
innocence.
The principle of law is well settled that where the evidence is of
circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn, should be fully established in the first circumstances, and the
facts so established should be consistent only with the hypothesis of the
guilt of the accused. The circumstances should be conclusive in nature and
they should be such as to exclude hypothesis than the one proposed to be
proved. There must be chain of evidence so complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human probability the
act must have been done by the accused.
The circumstances in the present case, on which the reliance
has been placed by the prosecution are that on the basis of diary found from
the pant of the deceased was identified by Lakhi Kant Mandal (PW-8) father
of the deceased and on the basis of last seen. Both the accused came to
Jaswinder Singh PW-3 and informed him him regarding their plan to go to
Bihar along with Santosh Mandal but he did not come back. Further-more,
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the recovery of weapon was made on the basis of disclosure statement
made by the accused.
For the reasons recorded above, we are of the view that the
prosecution has fully proved its case beyond a reasonable doubt and the
learned trial Court has rightly convicted and sentenced the accused. Thus,
we do not find any legal infirmity in the judgment of conviction and order
of sentence dated 1.11.2004 and 4.11.2004 passed by Sessions Judge,
Kapurthala.
Hence, this appeal is dismissed.
(DAYA CHAUDHARY)
JUDGE
(SATISH KUMAR MITTAL)
JUDGE
January 16, 2009.
raghav