Punjab And Haryana High Court · 2010

Judgment

1. Appellant Bimal Kumar was tried by the court of Additional Sessions Judge, Ludhiana, under Section 302 IPC, for committing murder of Shintu Kumar, aged about 10 years. Vide judgment and order dated

10.9.2007, passed by the trial court, the appellant has been convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- under Section 302 IPC.

2. In the present case, as per the prosecution version, complainant Subhash Parshad Chorasia (PW.2), father of deceased Shintu Kumar, used to run a Rehra. His wife Meera Devi was working as a labourer in Pammi Textile, Tibba Road, Ludhiana. He was having three daughters and one son. Crl. A. No. 111-DB of 2008 -2- His son Shintu Kumar (deceased) was 10 years old and was studying in 4th class in Prince School, Maharana Partap Nagar, Ludhiana. According to the complainant, on 6.2.2003, there was holiday in the school due to Basant Panchmi. Therefore, his son Shintu Kumar went with his mother Meera Devi in Pammi Textile, where she was working as a labourer. At about 2.00 PM, the complainant also went to Pammi Textile to take lunch with his wife. At that time, his son Shintu Kumar was also present there, who demanded one rupee from the complainant to purchase a kite, which he gave. His son purchased a kite and started flying it on the roof of Pammi Textile. Thereafter, the complainant went to his work. At about 8.00 PM, when he came to his house, his wife told him that at about 2.30 PM, their son had run away out of the factory and thereafter, he did not turn up. According to the complainant, he searched his son everywhere, including in the relations, but he did not find him. On the next day i.e. on 7.2.2003 at about 7.00 PM, when in search of his son, he was going on bridge of Ganda Nala near Tajpur Chowk, G.T. Road, he came to know that dead body of a child in the plastic bag was lying near the bridge of Ganda Nala towards the side of Mohalla Kashmir Nagar. Then the complainant went to the place, where the dead body was lying and in the light of the torch, he found that the dead body was of his son Shintu Kumar. When he was going to inform the police, at 8.30 PM on 7.2.2003, ASI Waryam Singh (PW.4) along with the other police officials met him near Chowk Basti Jodhewal, Ludhiana. He recorded the statement (Ex.PD) of the complainant, on the basis of which Crl. A. No. 111-DB of 2008 -3-

the formal FIR (Ex.PD/2) was registered at 8.50 PM.

3. On the same day i.e. on 7.2.2003, the police reached the spot and prepared the inquest report (Ex.PG), wherein injury marks were found on the neck with scratch of rope or nails, from which it appeared to be a case of strangulation.

4. On 8.2.2003 at 10.40 AM, Dr R.S. Grewal (PW.1) along with Dr. Manjit Singh conducted the post mortem examination on the dead body of Shintu Kumar. They found the following injuries on the dead body :

1. 2” x ½” ligature mark, reddish brown in colour, was present on anterior aspect of neck, thyroid region – more on the left side.

2. ½” x ½” ligature mark of same colour, present ¾” away from injury No.1 on left side.

3. Faint 1/3” x ¼” ligature mark present 1” away from injury No.2 on the left side of neck. On dissection, under above said injuries underneath tissues were echbymosed. Haemotoma over thyroid cartilage was present. Mucosa of larynx was severally congested. Base of the tongue was congested.

4. Abrasion over nasal tip-3/4” x 3/4” area. There was dis-location of C-2 and 3 vetebarae was present. Spinal cord under vetebrae C2 and 3 was contused. Membrances of the brain, Pleurae both lungs and both lungs were congested. Intestine and lever spleneed brusing around anus. Sphincter was normal. Internal mucosa on proctoscopy of anus was normal. Three swabs from rectal opening and anus were taken and sent for chemical analysis for semen.

5. In the opinion of the Doctors, the cause of death was due to Crl. A. No. 111-DB of 2008 -4- asphyxia as a result of throttling, which was ante-mortem and was sufficient to cause death in the ordinary course of nature. Dr. R.S. Grewal stated that in his opinion, throttling was done by hand i.e. manual strangulation. Three swabs from rectal opening and anus were taken and sent for chemical analysis for semen. According to the report of the Chemical Examiner (Ex.PW.17/A), spermatozoa was seen on the contents of rectal swabs. The medical evidence suggests that son of the complainant was murdered by throttling after making an attempt to commit un-natural offence.

6. During investigation, for about six months, no clue could be found regarding the murder of Shintu Kumar. However, on 4.12.2003, SI Gurbans Singh (PW.8) recorded the statement of Rajesh Parshad (PW.14), who stated that on 6.2.2003 at about 5.30 PM, he had seen Shintu Kumar in the company of appellant Bimal Kumar. Thereafter, on 5.12.2003, SI Gurbans Singh further recorded the statement of Ram Tirath (PW.15) who stated that on the intervening night of 6/7.2.2003 at about 2.30 AM, near Ganda Nala, he had seen the accused coming from the side of Tibba Road, while carrying a plastic bag on his bicycle. Thereafter, on 15.12.2003, SI Gurbans Singh recorded the statement of Shambhu Parshad (PW.3), who stated that on 14.12.2003, while taking liquor in an Ahata, he had overheard the accused saying that he had killed Shintu Kumar, because mother of Shintu Kumar had refused to develop illicit relations with him. Thereafter, on 21.12.2003, the police recorded the statement of Sunil Kumar (PW.16), before whom the accused made extra judicial confession regarding Crl. A. No. 111-DB of 2008 -5- committing the murder of Shintu Kumar. On 22.12.2003, the accused was arrested and on 23.12.2003, during interrogation, he suffered disclosure statement (Ex.PL) and got recovered a Mufflar and the cycle, which were taken into possession vide recovery memo (Ex.PF).

7. After completion of investigation, challan was presented against the accused and he was charge sheeted for the offence under Section 302 IPC, to which he did not plead guilty and claimed trial.

8. In support of its case, the prosecution examined seventeen witnesses.

9. PW.1 Dr. R.S. Grewal proved the post mortem report (Ex.PA) of the deceased. PW.2 Subhash Parshad Chorasia is the complainant. PW.3 Shambhu Parshad, who is maternal uncle of the deceased, was examined to prove the alleged motive and the recovery of the Mufflar and cycle of the appellant. PW.4 SI Waryam Singh proved the statement of the complainant (Ex.PD) and the FIR (Ex.PD/1). PW.5 C. Tarsem Lal stated that he got conducted the post mortem on the dead body of the deceased. PW.6 Constable Shamsher Singh is the formal witness, who delivered special report to the Illaqa Magistrate. PW.7 HC Ashwani Kumar is the witness to recovery. PW.8 SI Gurbans Singh is the Investigating Officer, who recorded the statements of the witnesses under Section 161 Cr.P.C., arrested the accused and effected the recovery of Mufflar and the bicycle. PW.9 HC Rai Singh and PW.10 Constable Ram Saran are the formal witnesses. PW.11 Jasbir Kaur, the Principal of the School, where deceased Shintu Kumar was Crl. A. No. 111-DB of 2008 -6- studying in 4th class, has proved the relevant record to prove that the deceased was studying in her school. PW.12 Ram Bilas is another formal witness, who identified the dead body of the deceased. PW.13 Davinder Kumar, owner of Pammi Textile, was examined to prove that Meera Devi (mother of the deceased) and the accused were working in his factory. PW.14 Rajesh Parshad and PW.15 Ram Tirath are witnesses to the last seen. PW.16 Sunil Kumar is the witness, before whom the accused made extra judicial confession regarding killing of Shintu Kumar by him. PW.17 Jagdeep Singh, Laboratory Attendant, proved the report (Ex.PW.17/A) of the Chemical Examiner.

10. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence and false implication in the case, as he had some money dispute with the complainant side. However, he did not lead any evidence in his defence.

11. The trial court, after considering the evidence led by both the parties, while relying upon the last seen evidence, extra judicial confession and the recovery, while coming to the conclusion that the prosecution has established the motive to commit the crime, convicted and sentenced the appellant, as indicted above.

12. Learned counsel for the appellant argued that the case of the prosecution is based on the circumstantial evidence and in order to prove the guilt of the appellant, the prosecution is relying upon the statements of Crl. A. No. 111-DB of 2008 -7- PW.14 Rajesh Parshad and PW.15 Ram Tirath, as evidence of last seen; and the statement of PW.16 Sunil Kumar, as an evidence of extra judicial confession. Learned counsel, while referring to the statements of these witnesses as well as the statement of PW.2 Subhash Parshad Chorasia (complainant), vehemently argued that the version given by these witneses is wholly false and was concocted by PW.8 SI Gurbans Singh, after six months of the occurrence. The testimonies of these witnesses, who are highly interested witnesses, are not reliable and trust-worthy. He further argued that the prosecution has failed to prove the alleged motive, as stated by PW.3 Shambhu Parshad, the real maternal uncle of the deceased. His version is not only concocted but is contrary to the medical evidence. He further argued that Meera Devi (mother of the deceased), who could have thrown some light on the alleged motive, has not been examined by the prosecution without any justification and reason. Learned counsel further submits that the complete chain of circumstantial evidence in this case is missing and the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. According to him, the circumstantial evidence led by the prosecution are not sufficient to convict the appellant for the serious offence of murder.

13. On the other hand, learned counsel for the respondent-State submits that by leading cogent and convicting evidence in this case, chain of circumstantial evidence is complete and the prosecution has fully established its case against the appellant. Therefore, the trial court has Crl. A. No. 111-DB of 2008 -8- rightly convicted and sentenced the appellant.

14. We have considered the submissions made by learned counsel for the parties and perused the impugned judgment.

15. As per the prosecution version, on 6.2.2003 at about 2.30 PM, deceased Shintu Kumar ran away from Pammi Textiles, where he was playing with the kite, in the presence of his mother, who was working in the said factory. PW.2 Subhash Parshad Chorasia (complainant), father of Shintu Kumar, had also seen him in the factory for the last time on that day at 2.00 PM, when he left the factory after having lunch with his wife. According to him, when he returned to his home at about 8.00 PM, then his wife Meera Devi told him that their son Shintu Kumar disappeared from the factory at 2.30 PM, while playing with kite on the roof of the factory. According to the complainant, thereafter, they searched Shintu Kumar in their relations, but could not find him any where. Then on the next day, at about 7 PM, when the complainant was searching his son, he got information that the dead body of a child in a plastic bag was lying near the bridge of Ganda Nala, Tajpur Chowk, G.T. Road. Thereupon, the dead body was recovered, which was identified to be that of Shintu Kumar. In this case, Meera Devi has not been examined by the prosecution as a witness, in order to prove that how and exactly at what time, Shintu Kumar disappeared/ran away from the factory. After the dead body of Shintu Kumar was found in the plastic bag lying near the bridge of Ganda Nala on

7.2.2003, autopsy of the deceased was conducted by Dr. R.S. Grewal Crl. A. No. 111-DB of 2008 -9- (PW.1) and Dr. Manjit Singh on 8.2.2003. In their opinion, the deceased died due to asphyxia as a result of throttling, which was done by hand i.e. manual strangulation. Though during the post mortem examination, no external brusing was seen around anus, but three swabs from rectal opening and anus were taken and sent for chemical analysis for semen and as per the report of the Chemical Examiner (Ex.PW.17/A), spermatozoa was seen on the contents of rectal swabs. This part of the medical evidence suggests that before causing death of Shintu Kumar by throttling, an attempt was made to commit un-natural offence, but it is not the case of the prosecution.

16. Now, the question arising for consideration is that who has caused the death of Shintu Kumar by throttling or by manual strangulation. There is no direct evidence to this effect. The case of the prosecution is based upon circumstantial evidence. In cases of circumstantial evidence, it has to be seen whether the circumstances in totality, and not in isolation, lead to the inference of the guilt of the accused. If in totality, they lead to such an inference, then it is of no consequence that independently they do not establish his guilt. The credibility of circumstantial evidence depends to a large extent upon the impression created in the mind of the Court by the methods adopted by the investigating agency. Where these methods are fair and much criticism cannot be levelled against them, the investigation inspires confidence, but where there is a total disregard and a flagrant breach of the rule of law, very little value can be attached to such evidence. There is always a danger in a case depending upon circumstantial evidence Crl. A. No. 111-DB of 2008 -10- that conjecture or suspicion may take the place of legal proof. An order of conviction can be based only on legal evidence and not on hypothetical propositions or unwarranted inferences. Surmises and suppositions cannot take the place of legal proof in a criminal trial and suspicion, however grave, cannot sustain a criminal charge. In such cases, the circumstances from which the conclusion of guilt is to be drawn should in 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. In light of these principles, now we will carefully analyse all kinds of the circumstantial evidence, led by the prosecution in order to prove the guilt of the appellant.

17. In the present case, the prosecution is relying upon three types of circumstantial evidence i.e (i) Evidence of last seen; (ii) Evidence of extra judicial confession; and (iii) Evidence of motive. Evidence of last seen

18. In order to prove the circumstantial evidence of last seen, the prosecution has examined PW.14 Rajesh Parshad and PW.15 Ram Tirath. On a careful analysis of the statements of both these witnesses, we find that the testimonies of these witnesses are wholly unreliable and untrustworthy. For the first time, statements of these witnesses were recorded by PW.8 SI Gurbans Singh on 4.12.2003 and 5.12.2003 i.e. after about ten months of the occurrence.

19. In his statement before the police, PW.14 Rajesh Parshad stated that on 6.2.2003 at about 5.30 PM, he saw the appellant holding the arm of Crl. A. No. 111-DB of 2008 -11- Shintu Kumar (deceased), while going on the road. This witness is real brother-in-law (husband of sister) of Meera Devi. It came in the statement of PW.2 Subhash Parshad Chorasia (complainant) that he along with his relations, including Rajesh Parshad (PW.14), searched his son on 6.2.2003 till mid-night. He further stated that on the next day also, all the persons searched the missing boy. PW.2 also stated that on 8.2.2003, he along with Rajesh Parshad (PW.14) went to the Civil Hospital for the purpose of post mortem examination of the dead body of his son. He further stated that all his relations, including Rajesh Parshad (PW.14), Bimal, Ram Tirath (PW.15), Ram Bilas and Sunil Kumar used to console his family at the evening hours. All these persons regularly visited his house for 10/12 days for the said purpose, but PW.14 Rajesh Parshad, stated that on 6.2.2003 itself, after seeing the boy in the company of the appellant, he left for his parental house at 9 PM by train and he returned to Punjab after about 9-10 months and then he came to know about the murder of Shintu Kumar. But eventually, he did not mention this fact either to the complainant or to the police and only after about ten months, he had made statement to the police. This major contradiction in the statement of this witness makes his testimony unreliable. He is a close relative of the deceased and possibility of his making false statement at the instance of the complainant or the police cannot be ruled out.

20. The second witness of the last seen is PW.15 Ram Tirath. According to him, on the intervening night of 6/7.12.2003 at about 2.30 Crl. A. No. 111-DB of 2008 -12- AM, when he was coming to his house after seeing the Saraswati Pooja, on the GT Road, near the bridge of Ganda Nala, he saw that the appellant was carrying a plastic bag on the carrier of his cycle, which in the opinion of this witness was having some weighty articles. Though he knew the appellant, but he did not enquire from him as to what he was carrying, because he remained under the impression that he was shifting his room, therefore he was carrying some articles. This witness also did not tell this fact either to the complainant or to the police, though he remained in touch with the complainant as well as the police. PW.2 Subhash Parshad Chorasia (complainant) in statement stated that he along with his relations, including Ram Tirath (PW.15), searched his son on 6.2.2003 till mid-night. He further stated that on the next day also, all the persons searched the missing boy. PW.2 also stated that on 8.2.2003, he along with Ram Tirath (PW.15) went to the Civil Hospital for the purpose of post mortem examination of the dead body of his son. He further stated that all his relations, including Rajesh Parshad (PW.14), Bimal, Ram Tirath (PW.15), Ram Bilas and Sunil Kumar used to console his family at the evening hours. All these persons regularly visited his house for 10/12 days for the said purpose, but PW.15 Ram Tirath stated that he had gone to his village, from where he came back after a long time and on 3.12.2003, he came to know about the death of Shintu Kumar. Then he made statement to the police on 5.12.2003. Further, there are major contradictions and improvements in the statement of this witness made to the police and recorded in the court. In the statement before Crl. A. No. 111-DB of 2008 -13- the police, he has not stated that after seeing the appellant carrying a plastic bag on the carrier of his cycle, he went to his village, from where he came back after a long time. He had also not stated to the police that he knew the appellant, but in the court, he made improvements, because he was working in Pammi Textiles, where mother of the deceased was also working. However, this witness was not in a position to tell that in which factory, he was working, when he made deposition in the court. Further, PW.2 Subhash Parshad Chorasia, in his statement, has stated that Ram Tirath is residing in the same Mohalla and he was his relative, but he has not exactly stated what was his relation with Ram Tirath. Thus, the testimony of PW.15 Ram Tirath is also unreliable. Evidence of extra judicial confession

21. In order to establish the circumstantial evidence of extra judicial confession, the prosecution is relying upon the statement of PW.16 Sunil Kumar. According to PW.2 Subhash Parshad Chorasia (complainant), Sunil Kumar along with Rajesh Parshad (PW.14), Bimal, Ram Tirath (PW.15) and Ram Bilas helped him in searching his son on 6.2.2003. He along with other persons went to the Police Station and the Civil Hospital for the purpose of post mortem examination of the dead body of the deceased son of the complainant. He along with other persons was regularly visiting the house of the complainant for 10-12 days to console them. According to PW.16 Sunil Kumar, on 20.12.2003 i.e. after more than ten months of the occurrence, the appellant came to his room in Maya Puri at Crl. A. No. 111-DB of 2008 -14- about 8.30 PM and told him that on 6.2.2003, he had killed Shintu Kumar and after putting the dead body in a plastic bag, he had thrown the same on the bank of Ganda Nala. He stated that the appellant requested him that the police is behind him and if he is having links in the police, he should produce him before the police. According to this witness, after making the said confession, the appellant left to his house and told him that he would return on the next day, but when he did not return on the next day, this witness went to the police on the next day. When he was going to the Police Station to make statement, then two police officials met him on a scooter in the street and they recorded his statement. One of them was PW.8 SI Gurbans Singh, the Investigating Officer of the case. In his cross- examination, this witness has admitted that on the day of making confession by the appellant before him, he did not disclose the said fact to any one and only on the next day, he made statement to the police. This witness was simply working as an Accountant in a factory. He was not having any links with the police. He was not holding any post of position. The police met him by chance and recorded his statement. It does not stand to reason that why the appellant will make extra judicial confession before this witness, when he was not in a position to render any help to him in the Police. The testimony of this witness is also not reliable. From the statement of PW.8 SI Gurbans Singh, the Investigating Officer, it appears that he took investigation of the case only on 18.11.2003. Prior to this, the police could not find any clue. It has come in evidence that during that period, several Crl. A. No. 111-DB of 2008 -15- persons from Pammi Textiles, from where Shintu Kumar had disappeared, were apprehended and interrogated. Even the appellant, who was also working in the said factory, was also interrogated, but no clue with regard to the murder of Shintu Kumar could be found. However, SI Gurbans Singh (PW.8), after taking invesigation on 18.11.2003, recorded the statements of PW.14 Rajesh Parshad, PW.15 Ram Tirath, Shambhu Parshad and PW.16 Sunil Kumar, on 4.12.2003, 5.12.2003, 15.12.2003 and 21.12.2003. On the basis of these statements, he arrested the appellant and filed challan against him. Therefore, in the instant case, the evidence led by the prosecution to establish the evidence of last seen and the extra judicial confession do not inspire confidence and the same appear to be manipulation by the investigating agency. Evidence of motive

22. In order to prove the motive, the prosecution has examined PW.3 Shambhu Parshad, who is the real maternal uncle of the appellant. His testimony is interesting. According to him, on 14.12.2003, he was taking liquor in the Ahata. At that time, the appellant along with some other persons was also taking liquor. This witness overheard the appellant saying to his companion not to argue with him, as he was not known to him. The appellant threatened his companion to kill him. He also told him that he had already murdered one Shintu Kumar, because the appellant had liking for Meera Devi, the mother of said Shintu Kumar, but when she did not agree to him, he killed her son Shintu Kumar and threw his dead body near Ganda Crl. A. No. 111-DB of 2008 -16- Nala, after putting the same in a bag. After overhearing about the killing of the son of his real sister, this witness did not inform about this fact even to his sister or to any body else. This conduct of PW.16 Sunil Kumar is highly improbable. On the next day, he made statement to the police. This witness is highly interested witness. The version given by him is not corroborated by any other evidence. Only Meera Devi could have corroborated the version that the appellant was having ill eye on her and she had refused to make relationship with him, but she has not been examined by the prosecution. Secondly, the alleged motive, put by PW.16 Sunil Kumar does not inspire confidence, because the medical evidence suggests a different motive of the crime i.e. an attempt to commit un-natural offence was made and in that process, the boy was killed by throttling. Therefore, testimony of this witness, who is highly interested witness, is also unreliable and not trust-worthy and the same cannot be based to convict the appellant for the offence of murder.

23. Further, mere recovery of Mafflar and cycle at the instance of the appellant is not sufficient to prove the guilt against him. Even otherwise, the Mafflar, was not bearing any blood stain. In this case, no attempt was made by the prosecution to take the sample of the semen of the appellant in order to connect the appellant with the crime. This evidence could have been most important link evidence to complete the chain of circumstances. Thus, the chain of circumstantial evidence is not complete. Hence, in our opinion, on the basis of the incomplete, inconsistent and weak circumstantial evidence, conviction of the appellant for the offence of Crl. A. No. 111-DB of 2008 -17- murder is not safe.

24. Thus, in our view, all kinds of the circumstantial evidence led by the prosecution in the present case are not sufficient to bring home the guilt of the accused beyond reasonable doubt. These evidence are not consistent with the hypothesis of the guilt of the accused. They are not of a conclusive nature, as to exclude every hypothesis but the one proposed to be proved. These evidence do not establish beyond reasonable doubt that in all human probabilities, the act of murder of Shintu Kumar must have been done by the appellant. It is well settled principle of law that in order to sustain conviction, the circumstantial evidence must be complete and incapable of explanation of any other hypothesis except 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, as held by the Hon'ble Supreme Court in Reddy Sampath Kumar v. State of A.P., AIR 2005 SC 3478.

25. In view of the above, the appeal is allowed. The impugned judgment of conviction and order of sentence is set aside. Accordingly, appellant Bimal Kumar is acquitted of the charges. The appellant, who is in custody, be set at liberty forthwith, if not required in any other case. ( SATISH KUMAR MITTAL ) JUDGE May 25, 2010 ( JORA SINGH ) JUDGE