Crl.Appeal No.86-DB of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.Appeal No.86-DB of 2006
Date of decision: 1.12.2008
Thakur Mani and another
... Appellants
Versus
State of Haryana
... Respondent
CORAM: Hon'ble Mr.Justice Uma Nath Singh.
Hon'ble Mrs.Justice Daya Chaudhary.
Present: Mr.N.K.Sanghi, Advocate,
for the appellants.
Ms.Ritu Punj, DAG, Haryana.
...
UMA NATH SINGH, J.
This criminal appeal arises out of a judgment dated 7.11.2005
passed by learned Additional Sessions Judge, Faridabad, in Sessions case
No. 17 of 12.6.2004 under Sections 302/34/201 IPC, holding accused-
appellants Thakur Manni and Parwati, both sisters, guilty of offences
aforesaid and sentencing them each to imprisonment for life on first count
and seven years rigorous imprisonment on second count with no order as to
fine. As regards two other co-accused, learned trial Judge has acquitted co-
accused Pawan, whereas, the fourth accused Chandervir, who was in
possession of Tata Sumo used in offence, is said to be still absconding.
As per statement given by Naimai Mandal (PW-1), brother of
deceased-Jait Mandal, FIR (Ex.P/2) was recorded at Police Station NIT,
Faridabad, on 7.1.2004 under Sections 302/201/34 IPC at 4.10 pm. As per
statement of complainant, deceased Jait Mandal was his elder brother. Both
Crl.Appeal No.86-DB of 2006 2
were living separately in jhuggi of one Jeevan Jyoti of Rajiv Camp in Delhi.
Jait Mandal was a labourer, who used to take liquor. Accused-Parwati, wife
of deceased Jait Mandal, also used to work as labourer. This also stated that
the deceased used to take money for liquor from the earnings of co-accused
Parwati and beat her. Since 1.1.2004, the complainant had not seen the
deceased and thus, he made inquiries from his sister-in-law Parwati asking
the whereabouts of the deceased. Parwati then disclosed to him that she and
her sister committed murder of Jait Mandal because he used to take liquor
from her earnings and beat her. He had also beaten her on the first day of
month. She further disclosed to him that she with her sister Thakur Manni
had taken deceased Jait Mandal to Suraj Kund, Faridabad, in an auto
rickshaw, which had returned after dropping them there. Thereafter, she
with the assistance of her sister Thakur Manni by using a gamchi (a piece of
cloth used for covering head), had strangulated deceased Jait Mandal. They
had thrown the dead body near the bushes of Suraj Kund thereafter. As the
complainant was not convinced by the statement, therefore, he being
accompanied by his brother-in-law Amolo Mandal (PW-8), set out for the
search of dead body. Accused-Parwati also made a call to Delhi Police and
was then taken to police post. Complainant (PW1) and his brother-in-law
Amolo Mandal (PW-8) went to Suraj Kund, from where they came to know
that one dead body was recovered from the bushes in front of Lakewood
and that dead body was kept lying in B.K. Hospital, Faridabad. Thereafter
they went to hospital and identified the dead body of deceased-Jait Mandal.
This also appears from the statement of ASI Pritam Singh (PW-9) and
Bishamber (PW-15), a Delhi Police Constable, that accused-Parwati made a
disclosure statement that she with the help of her sister Thakur Manni, had
Crl.Appeal No.86-DB of 2006 3
committed the murder of her husband. Both the accused persons were taken
into custody; the inquest of dead body was conducted, and then the dead
body was sent for postmortem examination. The cause of death according
to Board of Doctors was asphyxia as a result of ante-mortem strangulation.
On completion of investigation, a challan was put up under Sections
302/201/34 IPC against three accused persons, namely, both the appellants
Thakur Mani and Parwati, and one Pawan Mandal and the charges were
framed accordingly. Pursuant thereto, all the three accused persons were
tried but only both the appellants were convicted and sentenced as
aforesaid.
Heard learned counsel for parties and perused the record.
Learned counsel for appellants submitted that the disclosure
statements made before ASI Pritam Singh (PW9) and Constable Bishamber
(PW15) are only in the nature of confession before police, which would not
be admissible in evidence. According to Mr. Sanghi, learned counsel for
appellants, this statement is nothing but an attempt to get support to the
proceedings of recovery of dead body. According to learned counsel, co-
accused Pawan Mandal, who was in possession of a Tata Sumo belonging to
Reliance Company, had though made an extra judicial confession before
Ramesh (PW3), but has since been acquitted on the same set of evidence.
Auto-rickshaw alleged to have been used for transporting the deceased to
Suraj Kund was not produced and its owner was also not examined. Even
according to the statement of Doctor, time between the death and
postmortem examination, being 36 to 96 hours, would not establish
conclusively the date of incident. Extra judicial confessions said to have
been made before Naimai Mandal (PW1) and Amolo Mandal (PW8) were
Crl.Appeal No.86-DB of 2006 4
also denied by them in their examination-in-chief. In inquest report, articles
belonging to deceased Jait Mandal were mentioned against column No.7,
but in the list of articles, gamchi used for strangulation does not find
mention. Besides, the gamchi was not shown to Doctor to find out as to
whether the strangulation of deceased was possible with the help of that
cloth. As per the FSL report of viscera, only the presence of ethyle alcohol
was detected from examination. In their statements under Section 313
Cr.P.C., the accused appellants have completely denied the allegations
levelled against them.
On the other hand, learned Deputy Advocate General for State
of Haryana, submitted that though this case is based on circumstantial
evidence, but each link in the chain of circumstances has been individually
proved, so also the chain of circumstances has been found to be complete.
Learned State counsel also submitted that the disclosure statements made
before PW9 and PW-15 are worth reliance for the reason that the accused
wife had not reported the matter about the disappearance of her deceased
husband to the police or to any relative. Besides, only at the instance of
accused appellant Parwati and her sister co-accused Thakur Mani, shoes
and gamchi were recovered. As there was a ligature mark on neck, it
cannot be said that the deceased had died of consumption of liquor and of
consequent falling on some stone.
From a close and careful analysis of the aforesaid evidence, it
appears that the prosecution case is totally based on the circumstantial
evidence. Circumstances, which the prosecution had tried to establish before
the trial Court, are:
( i ) the conduct of deceased towards accused Parwati in a
Crl.Appeal No.86-DB of 2006 5background that the deceased used to take heavy liquor; and
would snatch away her earnings and beat her;
(ii) the disappearance of deceased from his house;
(iii) the confessions made by the accused appellants before
PW1 and PW8, their close relatives;
(iv) the recovery of dead body and articles belonging to
deceased Jait Mandal, namely, shoes etc.;
(v) the recovery of gamchi, a piece of cloth used for
strangulation of the deceased;
(vi) the inquest proceedings; as well as postmortem report and
also the FSL report, and
(vii) the disclosure statements made by the accused persons
before Delhi Police personnel ASI Pritam Singh (PW9) and
Constable Bishamber (PW15).
In order to prove these circumstances, the prosecution had
examined as many as 16 witnesses. Out of them, 5 are public witnesses
whereas 11 are police personnel and official witnesses.
Naimai Mandal (PW1) is the complainant being brother of
deceased Jait Mandal. Uddab Charan (PW2) had discovered the dead body
on 6.1.2004 at about 8.00 am when he had gone to the jungle near Suraj
Kund, to answer the call of nature. He had informed the police about the
presence of dead body and his statement under Section 161 Cr.P.C. had also
been recorded. Ramesh (PW3) is the witness before whom the acquitted co-
accused Pawan Mandal had made an extra judicial confession on 8.1.2004
that he along with co-accused Parwati, Thakur Manni and Chandervir, had
committed the murder of deceased Jait Mandal and thrown his dead body in
Crl.Appeal No.86-DB of 2006 6
the forest area of Suraj Kund after carrying it in a Tata Sumo belonging to
the Reliance Company. The Tata Sumo was found to be in possession of the
absconding accused Chandervir. Pawan Mandal had got recovered the Tata
Sumo vide recovery memo (Ex.PR). Parvinder (PW4) was working as a
driver in the Reliance Company. He had produced before police a Tata
Sumo bearing registration number D11Y-8834 along with its registration
certificate. The Tata Sumo and registration certificate were taken into
possession by police vide memos (Ex.PR and Ex.PS). Shakir Hussain
(PW5) was posted as Incharge of Police Post, Suraj Kund. He had recorded
the statement of complainant Naimai Mandal vide Ex.PA and pursuant
thereto, a formal FIR (Ex.PA/2) was recorded by ASI Tek Chand. PW 5 had
investigated the case by visiting the spot of incident. He had also prepared
a rough site plan (Ex.PT), with correct marginal notes, and had lifted blood
stained earth vide Ex.PG from the spot, and arrested accused Parwati and
her sister Thakur Manni on being produced by Delhi Police. He had also
conducted inquest proceedings vide Ex.PV and after the postmortem of
dead body had been completed, he had taken into possession the
incriminating articles belonging to deceased. Gamchi, which had been used
in the commission of offence was identified by the accused wife Parwati,
vide Ex.PC and accused Thakur Manni vide Ex.PD. On 8.1.2004, accused
Pawan was produced by Ramesh (PW3) and the Investigating Officer
recorded the statement of PW3 and arrested the accused Pawan. During the
course of interrogation, accused Pawan had suffered a disclosure statement
(Ex.PN) to the effect that he along with co-accused Parwati, Thakur Manni
and Chandervir had committed murder of deceased Jait Mandal and thrown
the dead body in the forest area of Suraj Kund after carrying it in a Tata
Crl.Appeal No.86-DB of 2006 7
Sumo. Pursuant to the disclosure statement made by accused Pawan, the
Investigating Officer had also demarcated the place where the accused
persons had committed the murder of deceased Jait Mandal, vide memo
(Ex.PN/1), and also the place where the dead body had been thrown, vide
memo (Ex.PN/2). On 8.1.2004, he took into possession the Tata Sumo
vehicle with registration certificate. In his cross-examination, the I.O. has
clarified that complainant Naimai Mandal had met him in B.K.Hospital,
Faridabad, at about 2/3 pm, where he had recorded his statement. He had
sent a ruqa in respect thereof at about 3.10 pm. Another witness Constable
Sharmila (PW6) was posted at Police Station, NIT, Faridabad, on 7.1.2004.
She has stated that in her presence, accused Thakur Manni had been
interrogated, who had disclosed about concealing the shoes of deceased Jait
Mandal in the bushes of hills area of Suraj Kund. Her disclosure statement
was recorded vide memo (Ex.PJ). Accused Thakur Manni also got
recovered the shoes vide recovery memo (Ex.PQ). Accused Thakur Manni
also demarcated the place where the murder of deceased Jait Mandal had
been committed and the place where the dead body had been thrown.
Similarly, in her presence, co-accused Parwati had also suffered the
disclosure statement (Ex.PK), who made the disclosure statement in line
with co-accused Thakur Manni. On 8.1.2004, accused Parwati and Thakur
Manni were again interrogated and they suffered further disclosure
statements vide Ex.PL and Ex.PM. On 7.1.2004, a day before the
supplementary disclosure statements, accused Parwati had got the red
gamchi belonging to deceased Jait Mandal identified, vide memo (Ex.PC).
Amolo Mandal (PW8), like PW1, is also a witness before whom the
disclosure statements had been made and who had also along with PW1 had
Crl.Appeal No.86-DB of 2006 8
made efforts to search out the dead body of deceased Jait Mandal. ASI
Pritam Singh of Delhi Police (PW9) stated that he had received a wireless
message from PCR at about 11.50 am to the effect that accused Parwati had
come and told that she had committed the murder of her husband with the
help of her sister Thakur Manni. She had also disclosed that the dead body
was lying in the forest area of Suraj Kund and in regard thereto, DD No.10
(Ex.PU) was recorded. He along with Constable Satender brought both the
accused to Suraj Kund jungle for locating the body. However, on the way at
the Chowk of Suraj Kund, Haryana Police personnel had met him,
therefore, he had handed over both the accused sisters along with DD No.10
(Ex.PU) to them. According to this witness, in his presence, an extra
judicial confession had been made by accused Parwati on the line of one
said to have been given before Naimai Mandal (PW1) and Amolo Mandal
(PW8). Anoj Kumar (PW10) had prepared a scaled site plan (Ex.PZ) on
being pointed out by complainant Naimai Mandal (PW1) with the correct
marginal notes. EHC Suresh Chand (PW11) was posted as Moharir Head
Constable, at Police Station NIT, Faridabad, on 7.1.2004. He had received a
packet containing the clothes of deceased given by the Doctor, which was
deposited by the SHO with him. Constable Vijay Kumar (PW12) was
posted at Police Post Suraj Kund, Faridabad, on 23.1.2004. MHC Suresh
had handed over to him the case property for being delivered to FSL,
Madhuban. He stated that during the custody of case property, it had not
been tampered in any manner. Constable Ram Kumar (PW13) was also
posted at Police Station NIT, Faridabad, on 7.1.2004. He tendered his
evidence on affidavit (Ex.PAA). He had delivered the special report at
about 10/10.15 pm on 7.1.2004 to the Area Magistrate. Randhir Singh
Crl.Appeal No.86-DB of 2006 9
(PW14) was posted as SHO, Police Station NIT, Faridabad, on 7.1.2004.
He had reached the spot where SI Shakir Hussain, Incharge, Police Post
Suraj Kund, met and entrusted him the further investigation of this case. He
was also handed over the custody of accused Parwati and Thakur Manni.
This witness interrogated them and on interrogation, a disclosure statement
(Ex.PK) of accused Parwati was recorded. She disclosed that she along with
her sister Thakur Manni had committed the murder of her husband Jait
Mandal and she could indicate the places where the offence had been
committed and where the dead body had been thrown. On a similar line, co-
accused Thakur Manni was also interrogated and her disclosure statement
(Ex.PJ) was recorded. Constable Dharambir after getting the postmortem
report from Doctor, produced a gamchi, which was stained with blood. That
gamchi was got identified by accused Parwati vide memo (Ex.PC). He also
took into possession a packet containing viscera etc. of the dead body.
Jacket of deceased Jait Mandal was also taken into possession by this
witness. Similarly, he also took into possession a T-shirt, shirt, pent etc.,
which were stained with blood. During the interrogation, accused
appellants had also disclosed that the offence had been committed along
with two other co-accused Pawan and Chandervir. Besides, the recovery of
shoes (Ex.P7 and Ex.P8) had also been done at the instance of the accused
persons. In his cross-examination, he has reiterated the statement given in
his examination-in-chief. Constable Bishamber (PW15) has also given a
statement on the line of ASI Pritam Singh (PW9). Harshdev Bahuguna
(PW16) was a Photographer. On asking of the police, he had gone to Suraj
Kund forest and taken 4 snaps (Ex.P9 to Ex.P12), with their negatives
(Ex.P13 to Ex.P16).
Crl.Appeal No.86-DB of 2006 10
At this stage, the prosecution closed its evidence and then the
accused appellants were examined under Section 313 Cr.P.C. They claimed
false implication and pleaded innocence. However, they being ladies could
not produce any defence witness in their support.
Looking to the evidence of witnesses so also other
circumstantial evidence placed on record, we find that there is a complete
denial of allegations by both the accused appellants, who are the real sisters.
As per the evidence of Naimai Mandal (PW1) and Amolo Mandal (PW8),
both the sisters were living separately. This has also come in the evidence
of PW8 that deceased Jait Mandal often used to stay away from his family
for 2/3 days in one spell. He was a habitual drunkard and though a mason by
profession he was in the habit of taking money from his wife for purchasing
liquor and would then beat her. We also notice in the inquest report that
though all the articles belonging to deceased Jait Mandal are mentioned
therein but the gamchi, which is said to have been used in the commission
of offence is conspicuous by absence in that list of articles. The
incriminating materials like disclosure statement or extra judicial
confessions, as projected by the prosecution, also appear to suffer from
serious infirmity, inasmuch as there was no discovery or recovery pursuant
thereto and such a statement made before the police has no evidentiary
value. Admittedly, the dead body was found to be kept in B.K.Hospital,
Faridabad, and assuming for the sake of arguments that both the accused
sisters had made confessions before complainant Naimai Mandal (PW1) and
Amolo Mandal (PW8), but the fact remains that the dead body had not been
recovered from the place as indicated by them. Moreover, we also notice
that complainant Naimai Mandal (PW1) had turned hostile at one stage and
Crl.Appeal No.86-DB of 2006 11
did not support the extra judicial confessions made by accused Parwati and
Thakur Manni. Similar is the stand taken by another witness Amolo Mandal
(PW8). Besides, on the same set of evidence, Pawan Mandal, who had also
made a similar extra judicial confession before Ramesh (PW3), has been
acquitted by the trial Court. Further, as per the FSL report, 1 c (blood) of
the deceased was found to contain the ethyle alcohol in the strength of
126.50 mg%. Thus, as the deceased was a drunkard and often used to stay
away from his family, there was nothing unusual on the part of accused
Parwati, his wife, to expect that her husband would return, if he could not be
seen for a few days. The argument regarding motive attributed to the
accused sisters that as the deceased husband Jait Mandal had been
extracting money from his wife accused Parwati to purchase liquor and
then beating her and that is why both the accused sisters had committed his
murder also does not seem to carry any force inasmuch as the deceased, who
was a young man of 30-32 years, could not have been overpowered by both
of them. Had accused Parwati and Thakur Mani made extra judicial
confessions before Naimai Mandal (PW1) and Amolo Mandal (PW8) and
had they been repentant over their act, then there was no reason for PW1
and PW8 to have turned hostile and resiled from their statements under
Section 161 Cr.P.C. Moreover, the prosecution has introduced different
theories at different stages of investigation connected with the disclosure
statements, extra judicial confessions and the recovery of dead body which
have been rather found to be destructive of each other and as noticed earlier,
they are also not admissible in evidence.
In view of all the aforesaid discussions and the re-appreciation
of evidence, we do not find the prosecution case to be proved beyond the
Crl.Appeal No.86-DB of 2006 12
reasonable doubt. Accordingly, while granting the benefits of doubt to the
accused appellants, we set aside the impugned judgment and allow the
Criminal Appeal No.86-DB of 2006. Appellants who are said to be in jail
are directed to be released forthwith, if they are not required in any other
case.
( UMA NATH SINGH )
JUDGE
1.12.2008 ( DAYA CHAUDHARY )
pk JUDGE
Whether this judgment be referred to Reporter: YES/NO