IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Appeal No. 415 DB of 2001
Date of decision: 23.10.2009
Tej Singh
......Appellant
Vs.
State of Haryana
...Respondent
CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH.
HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
PRESENT: Mr.R.M.Singh, Advocate, for appellant.
Mr.H.S.Sran, Addl. Advocate General, Haryana,
for the respondent.
****
DAYA CHAUDHARY, J.
1. The present appeal arises out of judgment of conviction and
order of sentence dated 16.7.2001 passed by Additional Sessions Judge,
Faridabad, in Sessions Case No. 19 of 11.3.2000, vide which accused-
appellant Tej Singh has been convicted for offence under Section 302 IPC
and sentenced to undergo RI for life and to pay fine of Rs.1000/- and in
default of payment of fine to undergo further RI for one year.
2. Briefly, the facts of the prosecution case are that FIR was
registered on the basis of statement made by Dan Singh son of Parsi Ram
(deceased) by stating that they are six brothers and one sister. Out of six,
three are married and three are unmarried. The complainant along with two
other unmarried brothers was residing with his parents on the tube-well in
Crl.Appeal No. 415 DB of 2001 [2]
the field. On 7.11.1999 at 9.30 p.m., all family members went to their
village for Diwali pooja and his father Parsi Ram was all alone in the field.
At about 7.00 p.m., he heard noise in the village that some persons went
towards the field where his father was staying. He along with other
villagers reached to the field and he found his father with injuries on his
mouth with sharp edged weapon and was lying on the ground. He was
taken to the hospital by Devender son of Parkash and Prem Singh son of
Khillan with the help of 3-4 persons and he expired in the hospital.
Complainant Dan Singh reported the matter to the police by stating that
some unknown person had killed his father. On the basis of statement
made by complainant Dan Singh, a formal FIR Ex.PA under Section 302
IPC was registered. During investigation, it was found that accused-
appellant Tej Singh was having enmity with Anant Ram son of the
deceased, who along with two other accused, namely, Bijji alias Vijay and
Bhim went to the tube-well of the complainant and committed murder of
Parsi Ram. After completion of investigation, all three accused were
arrested and challan was presented in Court. The accused were charge-
sheeted for the above offence vide order dated 5.4.2000, to which they
pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution examined as many
as nine witnesses, namely, ASI Mahender Singh PW-1, Constable Krishan
Kumar PW-2, Raju PW-3, Parkash PW-4, Anant Ram PW-5, Dan Singh
(complainant) PW-6, Prem Singh PW-7, Sun Inspector Krishan Kumar
PW8 and Dr. P.S.Parihar PW-9. Statements of accused under Section 313
Crl.Appeal No. 415 DB of 2001 [3]
Cr.P.C. were recorded , wherein they denied the allegations of the
prosecution and pleaded false implication. No witness was produced by the
accused in defence.
4. The trial Court after hearing arguments of both the parties and
on the basis of evidence available on record, acquitted accused Vijay and
Bhim by giving them benefit of doubt as charge against them was not
proved. Accused-appellant Tej Singh was found guilty for commission of
offence punishable under Section 302 IPC and sentenced as mentioned
above, who has filed the present appeal to challenge the impugned
judgment of the trial Court by taking various grounds.
5. Mr.Raj Mohan Singh, learned counsel for the accused-
appellant, has argued that it is a case of blind murder and the accused-
appellant has falsely been implicated and convicted on the basis of extra-
judicial confession made before Raju PW-3 in presence of co-accused
Vijay. There is delay in registration of FIR and he was not named in the
FIR. Only suspicion was there that some person had committed murder of
Parsi Ram. No independent witness has been examined by the prosecution
and the prosecution witnesses improved their statements in the Court. It is
also a case of tainted investigation.
6. Mr. H.S.Sran, learned Additional Advocate General for the
State, has argued that the prosecution has fully proved its case on the basis
of statements made by the witnesses and the trial Court has rightly
convicted and sentenced the accused-appellant on the basis of evidence
available on record.
Crl.Appeal No. 415 DB of 2001 [4]
7. We have heard learned counsel for the parties and have
perused the evidence and other documents on record.
8. The whole story of the prosecution is based on the extra-
judicial confession made by the accused before Raju PW-3 who later on
resiled from his statement. Moreover, the motive put up by the prosecution
has not been proved as it has come in the statement of Anant Ram that the
accused-appellant was having grudge against him and went to the house to
commit his murder but he was not available and his father was found there.
The accused appellant inflicted injuries on his father which resulted into his
death. The accused appellant was accompanied by two other persons,
namely Vijay and Bhim who were acquitted by the trial Court.
9. It is a settled law that accused-appellant cannot be convicted
on the basis of allegations which were made the ground for acquittal of
other co-accused. Moreover, the present case is a case of blind murder. The
dead body of deceased Parsi Ram was found in his house and no other
member of the family was there. Only on the basis of motor-cycle and
description of clothes of the accused, the complainant was having suspicion
in his mind. The identity of the accused-appellant has not been ascertained
on the basis of any evidence produced by the prosecution witnesses. The
witness of extra judicial confession is Raju PW-3 before whom the
accused-accused had confessed his guilt but later he resiled from his
statement.
10. The Hon’ble Apex Court in Padala Veera Reddy v. State of
A.P. 1990(2) RCR(Criminal) 26 : (AIR 1990 SC 79), has laid down that
Crl.Appeal No. 415 DB of 2001 [5]
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 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.”
The Hon’ble Supreme Court in Hanumant Govind Nargundkar and Anr.
v. State of Madhya Pradesh AIR 1952 SC 343 has observed thus :
“It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn should in
Crl.Appeal No. 415 DB of 2001 [6]the first instance be fully established and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far 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.”
Hon’ble the Apex Court in Chattar Singh and another Vs. State of
Haryana 2008 (4) RCR (Criminal) 133 has observed as under:-
“An extra-judicial confession, if voluntary and true and
made in a fit state of mind, can be relied upon by the
court. The confession will have to be proved like any
other fact. The value of the evidence as to confession,
like any other evidence, depends upon the veracity of
the witness to whom it has been made. The value of the
evidence as to the confession depends on the reliability
of the witness who gives the evidence. It is not open to
any court to start with a presumption that extra-judicial
Crl.Appeal No. 415 DB of 2001 [7]confession is a weak type of evidence. It would depend
on the nature of the circumstances, the time when the
confession was made and the credibility of the witnesses
who speak to such a confession. Such a confession can
be relied upon and conviction can be founded thereon if
the evidence about the confession comes from the mouth
of witnesses who appear to be unbiased, not even
remotely inimical to the accused, and in respect of
whom nothing is brought out which may tend to indicate
that he may have a motive of attributing an untruthful
statement to the accused, the words spoken to by the
witness are clear, unambiguous and unmistakably
convey that the accused is the perpetrator of the crime
and nothing is omitted by the witness which may
militate against it. After subjecting the evidence of the
witness to a rigorous test on the touchstone of
credibility, the extra-judicial confession can be
accepted and can be the basis of a conviction if it
passes the test of credibility.”
11. Moreover, the extra judicial confession is a weak type of
evidence which cannot be a ground of conviction of the appellant. The
chain of the prosecution story is not complete and link evidence is missing.
Crl.Appeal No. 415 DB of 2001 [8]
12. For the reasons mentioned above, we are of the view that the
prosecution has failed to prove its case against the accused-appellant Tej
Singh. Hence, the appeal is allowed. The impugned judgment of the trial
Court is set aside. The appellant is acquitted of the charge framed against
him. If he is on bail, he shall stand discharged of his bail bonds. If he is in
custody, he shall be set at liberty at once, if not required in any other case.
(DAYA CHAUDHARY)
JUDGE
(JASBIR SINGH )
JUDGE
October 23, 2009
raghav