Rajiv & Ors. v. Mr. R.S. Cheema, Senior Advocate, with Ms. Tarannum Cheema & Sumanjit Kaur

Judgment

1. Accused Rajiv son of Surat Singh, Ravinder alias Binder son of Ram Chander and Navin son of Raghbir Singh, all residents of village Jatola, District Sonepat (hereinafter referred to as A-1, A-2 and A-3, respectively) have filed the instant appeal against the judgment dated

10.11.2001, whereby they have been convicted under Section 302 read with Section 34 IPC and Section 120-B IPC for committing the murder of Devender son of Jit Singh (hereinafter referred to as `the deceased'), a resident of the same village, and hatching a conspiracy; and the order dated Crl. A. No. 728-DB of 2001 -2-

12.11.2001, vide which each accused has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/- under Section 302/34 IPC; two years rigorous imprisonment and a fine of Rs. 500/- under Section 120-B IPC. In default of payment of fine, they have been ordered to undergo additional rigorous imprisonment for two months. However, both the sentences have been ordered to run concurrently.

2. In brief, the prosecution version, which is based upon the statement of Ravinder Singh (PW.7), elder brother of the deceased, is that the deceased along with his brother and parents was residing in village Jatola. On 8.12.1997 at about 5.30 AM, complainant Ravinder Singh and the deceased were present in a room of their house. Then A-1 and A-3 came to their house and asked the deceased to accompany them for a morning walk. Thereupon, the deceased went away with them. Lateron, at about 6.15 AM, one Jasbir Singh (PW.8), a teacher residing in the same village, came to the house of the complainant and informed that the deceased was stabbed with knife and was lying near Bala Ji Plywood Factory. After getting the said information, the complainant along with his grand-father Partap Singh (not examined) and his uncle Satbir Singh (PW.10) reached at the spot, where they saw that the deceased was lying in an unconscious condition. There were cut injuries on his neck, stomach, left shoulder, right side of chest and left side of waist. They immediately took him to Community Health Centre, Kharkhoda in a Maruti van. On examining him, Doctor P.K. Bhardwaj (PW.12) declared him dead, and at 6.50 AM, he sent ruqa (Ex.PT) Crl. A. No. 728-DB of 2001 -3- to the police about the death. Thereupon, the police party, headed by SI Suresh Kumar (PW.19), reached there and recorded the statement of the complainant at 8.15 AM. It was stated by the complainant that his brother Devender was murdered by A-1 and A-3 or they have got him murdered from some one else. In the said statement (Ex.PN), the complainant did not give any motive for committing the murder of his brother.

3. On the basis of the aforesaid statement (Ex.PN), which was recorded by SI Suresh Kumar (PW.19) on 8.12.1997 at 8.15 AM at

Community Health Centre, Kharkhoda, formal FIR (Ex.PN/1) under Sections 302/120-B/34 IPC was registered against A-1 and A-3, at 8.25 AM at Police Station Kharkhoda. With regard to the said FIR, the special report was sent and reached to the Ilaqa Magistrate, Sonepat on the same day at

2.05 PM.

4. After sending the aforesaid statement for registration of the case, SI Suresh Kumar prepared the inquest report (Ex.PM) and sent the dead body of the deceased for post mortem examination. Thereafter, he along with the police party went to the place of occurrence, inspected the spot and prepared rough site plan (Ex.PY). The blood stained earth and muffler of the deceased were taken into possession vide memo (Ex.PQ).

5. On 8.12.1997 at 2.30 PM, Dr. Suman Mathur (PW.6) along with Dr. S.S. Bhogal conducted autopsy on the dead body of the deceased and they found the following nine injuries on his body :

1. Sharp cut wound 5 cms x 4 cms x muscle deep present Crl. A. No. 728-DB of 2001 -4- over the right sterno clevicular joint extending into neck. It was over in shape and clotted blood was present.

2. Triangular shape sharp cut wound present over the anterior part of right chest lying 8 cms from mid-line and 8 cms above right nipple. It was 2 x 2 x 2.5 cms deep. Sharp cut wound 3 x 1 cms over the epigastrium obliquely placed going into abdominal cavity. Sharp cut wound 2.5 cms x 1 cm x skin deep on the anterior surface of left shoulder. Sharp cut wound 3 cm x 2 cms x skin deep over the lateral aspect of middle of left fore-arm. Two abrasions present over the left mandible region one 2 x 3 cms and second 1 x 1 cms.

1.5 cm x 1 cm x skin deep sharp edged wound present over the top of left scapula.

1.5 cm x 1 cm x skin deep present over the back of the chest, which lying interior to left scapular. 3 cms x 1 cm x bone deep sharp edged wound present over the occipital region of head.

9. Rigor mortis were present on the body of the deceased. In the opinion of the Doctors, the cause of death of the deceased was due to shock and haemorrohage, which was internal and external in nature as a result of injuries to vital organs, like brain and liver. All the injuries were found to be ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was stated to be within few minutes and between death and post mortem, was within 24 hours. Crl. A. No. 728-DB of 2001 -5-

6. Initially, for one day, the case was investigated by SI Suresh Kumar (PW.19) and thereafter, the investigation was taken over by Inspector Satyawati (PW.17). On 14.12.1997, she recorded statements of certain witnesses and on 20.12.1997, vide recovery memo (Ex.PE), she took into possession a letter (Ex.P1) and a new year card (Ex.P2). These were written by one Reena, a girl of the village, to the deceased. On 23.12.1997, she was also interrogated by the Investigating Officer, wherein she admitted that letter (Ex.P1) and the new year card (Ex.P2) were in her own handwriting. The letter and the new year card revealed that the said girl was having love affairs with the deceased and she was also sexually exploited by A-2.

7. On 13.1.1998, A-1 and A-2 were arrested, as they were produced by Randhir Singh (PW.9), a resident of the village, before whom they alleged to have made extra judicial confession. On 16.1.1998, during interrogation of A-2, he suffered disclosure statement (Ex.PS) and in pursuance of the same, he got recovered shirt (Ex.P8), pant (Ex.P9) and sweater (Ex.P10), which were taken into possession vide recovery memo (Ex.PS/1). Though all these clothes were stated to have blood stains, but as per the report of the Forenisic Science Laboratory, Haryana, Madhuban (Karnal) (Ex.PK), no blood was found on these articles. No recovery was effected from A-1. No weapon was recovered from A-1 and A-2. It was stated that the weapon was thrown by them in the pond of the village.

8. During investigation, the police found A-3 as innocent and the Crl. A. No. 728-DB of 2001 -6- challan was filed only against A-1 and A-2. Subsequently, Jit Singh – father of the deceased, filed a private complaint, in which A-3 was also summoned. Thereafter, all the three accused were tried together for the charge under Section 302 read with Section 34 IPC and Section 120-B IPC.

9. In support of its case, in addition to the medical evidence, i.e. the Post Mortem Report (Ex.PL), proved by Dr. Suman Mathur (PW.6), the prosecution led three types of circumstantial evidence, i.e (i) last seen evidence; (ii) evidence of extra judicial confession; and (iii) evidence with regard to motive.

10. With regard to the last seen evidence, the prosecution examined PW.7 Ravinder Singh (complainant), PW.8 Jasbir Singh, PW.13 Smt. Krishna, real Bua (father's sister) of the deceased and PW.14 Jit Singh, father of the deceased.

11. PW.7 Ravinder Singh stated that on 8.12.1997 at 5.30 AM, A-1 and A-3 came to his house and took away the deceased for morning walk. He also stated that at 6.15 AM, Master Jasbir came to their house and informed that his brother was lying in an injured condition near Balaji Plywood Factory. On receipt of the said information, he along with his grand-father Partap Singh and his uncle Satbir Singh reached the spot, where the deceased was lying in an injured condition in the pond of blood. Immediately, he was taken to the Hospital.

12. PW.8 Jasbir Singh stated that on 8.12.1997, he went for morning walk, as a daily routine. After easing himself, when he was coming Crl. A. No. 728-DB of 2001 -7- towards the tubewell for washing his hands, he heard noise of Bachao- Bachao. When he returned towards his village and reached near Balaji Plywood Factory, he noticed that some migrant labourers from Bihar were standing in a circle. He also noticed that the deceased was lying in an injured condition. Then he came to the village to inform the family members of the deceased. This witness, in his statement (Ex.PR) made before the police under Section 161 Cr.P.C., stated that he saw some migrant labourers from Bihar surrounding the deceased, while A-1 was standing on the other side of the road in front of the deceased. But in the court, he had stated that except migrant labourers, he did not see any other person at the spot. Thereupon, this witness was declared hostile and was cross-examined by the prosecution.

13. PW.13 Smt. Krishna is the real Bua (father's sister) of the deceased and on the day of occurrence, she was in the house of the deceased. She stated that on 8.12.1997 at 5.30 AM, A-1 had taken the deceased from their house. At 6.30 AM, Jasbir told about the occurrence to Ravinder Singh, which was over-heard by her. On getting the information, she immediately went to the place of occurrence. In the way, A-1 met her and told her that the deceased had told him (A-1) that knife was inflicted to him, which A-1 considered as a joke.

14. PW.14 Jit Singh is the father of the deceased. He stated that on

8.12.1997, in the early morning, he had gone to answer the call of nature towards Balaji Factory. He had seen the deceased in the company of A-1 Crl. A. No. 728-DB of 2001 -8- and A-2. He asked the deceased to return at the earliest, to which he replied that he shall come back soon after the race. When he was coming to the village, near the gate of the school of the village, Navin and Bhola met him. After some time, he came to know that his son was murdered by A-1 and A- 2 alone, and none else was in league with them. However, he had categorically stated in the cross-examination that he had not seen A-1 and A-2 causing murder of the deceased.

15. In order to prove the evidence of extra judicial confession, the prosecution examined PW.9 Randhir Singh, a resident of village Jatola. He stated that on 13.1.1998, when he along with his son was present in his house, A-1 and A-2 came to him. A-1 stated that the police was after him, because he along with A-2 had caused murder of the deceased. A-1 requested this witness to produce him before the police. A-2 also made the similar statement before him. Thereafter, A-1 and A-2 were produced by him before the police. In the cross-examination, he had admitted that Partap Singh, grand-father of the deceased, had quarreled with him and they (Partap Singh and others) had caused injuries on his person, for which a case was registered against them, which ultimately ended into a compromise.

16. In order to prove the motive for committing the alleged crime, the prosecution examined PW.10 Satbir Singh and PW.15 Dhiraj Kumar. PW.10 Satbir Singh is the real uncle of the deceased. He stated that on the day of occurrence at about 6.15 AM, when he came to know from Jasbir Crl. A. No. 728-DB of 2001 -9- Singh that the deceased had been injured, he along with Partap Singh, grand-father of the deceased, and complainant Ravinder, went to the place of occurrence, near Balaji Plywood Factory, where the deceased was lying unconscious. They took him to the Hospital, where Doctor declared him dead. On 20.12.1997, this witness had handed over to the police the letter (Ex.P1) and the new year greeting card (Ex.P2). According to him, these were found by complainant Ravinder in the book of the deceased. In cross- examination, he stated that on 20.12.1997, complainant Ravinder had given the aforesaid letter and the new year greeting card to him for producing the same before the police. He further admitted that on the day of occurrence, Jit Singh (father of the deceased) was not present, whereas wife and children of complainant Ravinder were present in the house. This fact contradicts the statement of PW.7 Ravinder Singh regarding the presence of his wife in the house and the statement of PW.14 Jit Singh regarding the last seen of the accused with the deceased. PW.15 Dhiraj Kumar, a resident of village Bupania in District Jhajjar, stated that the deceased was his maternal uncle's son. According to this witness, the deceased was having love affairs with Reena. They used to meet in his presence. He further stated that A-2 is cousin (uncle's son) of Reena. About 3-4 months prior to the day of occurrence, in his presence, Reena told to the deceased that she had been sexually exploited by A-2 and she was carrying pregnancy from him and wanted to get the same aborted. He further stated that A-2 had warned that he shall take life of the deceased. About that Reena had cautioned the Crl. A. No. 728-DB of 2001 -10- deceased. This witness further stated that he identify the handwriting of Reena on letter (Ex.P1) and the greeting card (Ex.P2). Reena had passed on and delivered certain letters through him to the deceased and the deceased also used to pass on certain letters through him to Reena. On that account, he identified the handwriting of Reena.

17. In addition to the aforesaid witnesses, the prosecution also examined PW.17 Inspector Satyawati, the Investigating Officer of the case, and PW.19 Suresh Kumar SI, who had also partly conducted the investigation. The other witnesses, examined by the prosecution, were formal in nature.

18. In their statements under Section 313 Cr.P.C., the incriminating evidence appearing against the accused was put to him, which were denied by them. They pleaded innocence and false implication in the case. However, they did not lead any evidence in their defence.

19. After considering the evidence on record and hearing the arguments of learned counsel for the parties, the trial court vide judgment dated 10.11.2001 convicted all the three accused under Section 302 read with Section 34 IPC and Section 120-B IPC and vide order dated

12.11.2001, they have been sentenced, as indicated above. Against the said judgment and order, the instant appeal has been filed by the appellants.

20. Shri R.S. Cheema, Senior Advocate, learned counsel for the appellants, argued that in the instant case, the prosecution has miserably failed to prove the charge against all the three accused beyond a reasonable Crl. A. No. 728-DB of 2001 -11- doubt. The evidence led by the prosecution is wholly unreliable and untrustworthy. The first version given by complainant Ravinder Singh was based upon suspicion. He named A-1 and A-3, who had called the deceased from the house in the early hours of the day, for morning walk. It has not been explained that after the day of occurrence, why these two accused, who were residents of the same village, were not arrested even for more than one month. Further, during investigation, A-3 was found innocent. However, subsequently, on a private complaint filed by the father of the deceased, A-3 was also summoned as an additional accused. Learned counsel submitted that Jit Singh (PW.14), while appearing in the court, had categorically stated that only A-1 and A-3 were responsible for the murder of his son. He further argued that Jabir Singh (PW.8), who had allegedly seen the occurrence, had not supported the prosecution case. According to him, at the time of the occurrence, some migrant labourers from Bihar were surrounding the deceased. Except them, no other person was present at the spot. Though in his statement (Ex.PR) before the police, he stated that at that time, A-1 was standing on the other side of the road, but while appearing in the court, he has not supported the said part of his statement. While referring to the statement of Smt. Krishna, who was also a witness of the last seen, learned counsel argued that according to this witness, only A-1 met her in the way. At the spot, the deceased was lying unconscious and at that time, there was no person present there. According to the learned counsel, statements of PW.7 Ravinder Singh, PW.8 Jasbir Singh, PW.13 Smt. Krishna and PW.14 Crl. A. No. 728-DB of 2001 -12- Jit Singh, who are witnesses of last seen, are contradictory, highly improbable and unreliable. Even presence of some of them in the village on the day of occurrence is highly doubtful.

21. Learned counsel further argued that the testimony of PW.9 Randhir Singh, before whom the extra judicial confession was alleged to have been made by A-1 and A-2, is also wholly unreliable. The accused were having no relation with the said witness. He was not a man in a position. There was no reason for the accused to make extra judicial confession before him. Learned counsel further argued that it has not been explained that why the accused had made extra judicial confession before him after the expiry of more than one month of the occurrence. Learned counsel further pointed out that when this witness produced A-1 and A-2 before the police, he stated that they had made extra judicial confession before him, but his statement was not recorded by the police. Learned counsel further argued that the fact of extra judicial confession being made by A-1 and A-2 did not find mention in the remand papers of both these accused, which clearly indicates that no such extra judicial confession was made by them before PW.9 Randhir Singh. Therefore, conviction of all the three accused on the basis of such type of weak evidence is not safe.

22. Learned counsel further argued that in the instant case, the prosecution has failed to prove the alleged motive. He argued that four of the family members of the deceased, namely Ravinder Singh (brother), Smt. Krishna (Bua), Jit Singh (father) and Satbir Singh (uncle), have been Crl. A. No. 728-DB of 2001 -13- produced as witnesses, but none of them had spoken regarding the love affairs of the deceased with Reena, a resident of the same village. He further argued that as per the prosecution version, the letter (Ex.P1) and the new year greeting card (Ex.P2) were found by complainant Ravinder Singh in the house from the book of the deceased and he had handed over the same to Satbir Singh (PW.10), which were produced before the police. But in his statement, the complainant did not utter even a word about the same. He further argued that the prosecution has not proved that the letter (Ex.P1) and the greeting card (Ex.P2) were in the hand of Reena. Though PW.15 Dhiraj Kumar has been examined by the prosecution, who stated that he identified the hand-writing of Reena, because he was the mediator between Reena and the deceased for delivering letters to them, but according to the learned counsel, this statement of PW.15 Dhiraj Kumar is not sufficient to establish that the aforesaid letter (Ex.P1) and the greeting card (Ex.P2) were written by Reena. While referring to Explanation to Section 47 of the Indian Evidence Act, 1872, learned counsel argued that handwriting of a person can be proved by another person, who is acquainted with the writing of that person, when he had seen that person writing or when he had received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person had been habitually submitted to him. According to the learned counsel, none of these circumstances exist in the present case. Crl. A. No. 728-DB of 2001 -14- Learned counsel further argued that when PW.10 Satbir Singh was examined, Reena was also present in the court, but later, she was not examined by the prosecution without any explanation. According to the learned counsel, only Reena could have prove the alleged motive. Merely on the basis of the statement of PW.15 Dhiraj Kumar, it cannot be held that the prosecution has proved the alleged motive. According to the learned counsel, PW.15 Dhiraj Kumar is neither a resident of the village nor he was related to Reena. The deceased and Reena were residing in village Jalota, whereas the said witness is resident of a different village. There was no occasion for him to exchange the love letters of the deceased and Reena. Learned counsel argued that there is no evidence on record to prove that A- 2 is related to Reena. Therefore, according to the learned counsel, the prosecution has failed to establish the evidence of last seen, extra judicial confession and motive against the accused.

23. Learned counsel further argued that the prosecution has not even led any link evidence to establish that all the three accused were connected with the alleged crime. No recovery was effected from A-1 and A-3. The recovery of blood stained clothes i.e. shirt (Ex.P8), pant (Ex.P9) and sweater (Ex.P10), which were worn by A-2 at the time of the alleged occurrence, has not been connected with the alleged offence, as according to the report of the Forensic Science Laboratory, Haryana, Madhuban (Ex.PK), no blood was found on those clothes. In this case, the weapon of offence has not been recovered at all. Crl. A. No. 728-DB of 2001 -15-

24. Learned counsel further argued that in the instant case, the prosecution has not led any evidence to prove the offence of conspiracy. There is no evidence on record, which establish that the accused had ever agreed to cause death of the deceased. There is no evidence that in furtherance of a conspiracy between them, they have committed the alleged crime. Even there is no evidence that all the three accused, who are residents of the same village, are good friends and they had conspired to kill the deceased for a particular motive. In view of these submissions, learned counsel argued that case of the prosecution is based upon circumstantial evidence. Before convicting the accused on the basis of such evidence, the court is to satisfy itself as to whether the proved circumstances are sufficient to bring home satisfactorily the guilt of the accused. The established circumstances must not only be consistent with the guilt of the accused, but at the same time, they must be inconsistent with his innocence. Learned counsel argued that the circumstantial evidence led by the prosecution in the instant case is not incompatible with the innocence of the accused, therefore, all the accused are liable to be acquitted, as the prosecution has miserably failed to prove the guilt of the accused beyond shadow of a reasonable doubt.

25. On the other hand, learned counsel for the respondent-State argued that though case of the prosecution is based upon circumstantial evidence, but the prosecution while completing the chain of circumstances by leading evidence of last seen, extra judicial confession and the motive, Crl. A. No. 728-DB of 2001 -16- has clearly established the guilt of the accused beyond reasonable doubt. He argued that the testimony of all the witnesses, examined by the prosecution in order to prove the aforesaid circumstances, are wholly reliable and trustworthy and in view of that evidence, which clearly establish the guilt of the accused, the trial court was fully justified in convicting and sentencing the appellants. Hence, according to learned counsel for the respondent- State, no interference is required in the impugned judgment of conviction and the order of sentence.

26. In the present case, there is no direct evidence regarding the alleged crime having been committed by the accused. The case of the prosecution is based upon circumstantial evidence. It has been established that on 8.12.1997 at about 6.15 AM, Jasbir Singh (PW.8) came to the house of the deceased and informed his family members that the deceased was stabbed with knife and was lying near Balaji Plywood Factory. On getting the said information, the family members of the deceased, namely Ravinder Singh complainant, his grand-father Partap Singh and his uncle Satbir Singh reached at the spot, where they saw that the deceased was lying in an unconscious condition. He was having cut injuries on his body, which could have been caused by a sharp edged weapon. Immediately, he was taken to Community Health Centre, Kharkhoda. On examining him, Dr. P.K. Bhardwaj (PW.2) declared him dead. On receipt of the medical ruqa, the police reached in the Hospital, recorded the statement of the complainant and prepared the inquest report and sent the dead body of the deceased for Crl. A. No. 728-DB of 2001 -17- post mortem examination. Dr. Suman Mathur (PW.6) along with Dr. S.S. Bhogal conducted the autopsy on the dead body of the deceased. They found nine injuries on his body. Except one abrasion, all the injuries were caused by sharp edged weapon. In the opinion of the Doctors, the cause of death of the deceased was due to shock and haemorrohage, which was internal and external in nature as a result of injuries to vital organs, like brain and liver, which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between death and post mortem was within 24 hours. Thus, from the medical evidence, led by the prosecution, the homicidal death of the deceased due to multiple cut injuries on his body has been established.

27. Now the question for consideration is that who has caused the aforesaid injuries to the deceased, due to which he has died. The prosecution did not lead any direct evidence to establish this fact. The entire case of the prosecution is based upon circumstantial evidence. In order to prove that the accused had committed the alleged crime, the prosecution has led three types of circumstantial evidence i.e. (i) last seen evidence; (ii) evidence of extra judicial confession; and (iii) evidence with regard to motive.

28. When there is no direct evidence and the case of the prosecution rests upon the circumstantial evidence, the court is required to see that the proof of the offence must be above the suspicion, cogent and definite. All the circumstances, on which the conclusion of the guilt is to be Crl. A. No. 728-DB of 2001 -18- drawn, in the first instance should be fully established and all the evidence so established should be consistent only with the hypothesis of the guilt of the accused and incompatible with the theory of the innocence of the accused. 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.

29. In light of the aforesaid general principle, we have examined the circumstantial evidence led by the prosecution. The first circumstantial evidence led by the prosecution is the evidence of last seen. In this regard, the prosecution has examined PW.7 Ravinder Singh (complainant) PW.8 Jasbir Singh, PW.13 Smt. Krishna and PW.14 Jit Singh. Except PW.8 Jasbir Singh, all the witnesses of last seen are closely related to the accused. According to PW.7 Ravinder Singh, on whose statement the prosecution version is based, on the day of occurrence, at about 5.30 AM, A-1 and A-3 came to his house and took away the deceased for morning walk. This witness did not name A-2. According to him, on the day of occurrence, he and the deceased were sleeping in one room of the house, because his wife along with his children had gone to her parental house. He has also stated that when his wife remains in the house, they sleep together in one room. It has come in evidence i.e. in the statement of PW.10 Satbir Singh that on the day of occurrence, wife and children of PW.7 Ravinder Singh were present in the house. This fact slightly creates a doubt on the part of the statement of Crl. A. No. 728-DB of 2001 -19- PW.7 Ravinder Singh that when A-1 and A-3 came to call the deceased for a morning walk, he along with the deceased was sleeping in one room of the house. Further, after receiving information from Jasbir Singh, PW.7 Ravinder Singh along with Partap Singh and Satbir Singh went to the spot and found the deceased lying in an unconscious condition. At the place of occurrence, he did not see any of the accused present at the spot.

30. The second important witness to the last seen is PW.8 Jasbir Singh. He is not related to the deceased. He is a teacher residing in the village. According to him, on the day of occurrence, he had gone for a morning walk, as usual. When after easing himself, he was coming towards his tubewell for washing hands, he heard noise of Bachao-Bachao. Later on, when he was returning back to the village and reached near Balaji Plywood Factory, he noticed that some migrant labourers from Bihar were standing in a circle and the deceased was lying in an injured condition. Instead of going there to see that what happened, he came to the village and informed the family members of the deceased that the deceased was lying near the Balaji Plywood Factory in an injured condition. While appearing in the court, this witness has specifically stated that except the migrant labourers from Bihar, no other person was present at the spot. He had not seen any of the accused at that time. However, in his statement under Section 161 Cr.P.C., made before the police, which was recorded after 8 days of the occurrence, he had stated that he had seen A-1 standing on the other side of the road in front of the deceased. But this witness, while appearing in the court as PW.8, had Crl. A. No. 728-DB of 2001 -20- not supported the prosecution case with regard to the last seen of the accused in the company of the deceased. In the cross-examination, he had stated that it was incorrect that he stated before the police that on the other side of the road, A-1 was standing. Merely on the basis of this contradiction in his statements made before the police and before the court, it cannot be safely concluded that this witness had seen the deceased in the company of A-1 at the time of the alleged occurrence or causing injuries to the deceased. This witness had categorically stated that some migrant labourers from Bihar had encircled the deceased, who was lying in an unconscious condition. Therefore, possibility of causing injuries to the deceased by those labourers cannot be ruled out. The investigating agency had neither investigated the case from that angle at all nor cited any of them as a witness.

31. The next last seen witness, examined by the prosecution is PW.13 Smt. Krishna. She is father's sister of the deceased. According to her, on the day of occurrence at 6.30 AM, on receiving the information from Jasbir Singh that the deceased was lying in an unconscious condition near Balaji Plywood Factory, she immediately went to the place of occurrence and in the way, she met A-1. According to this witness, A-1 told her that the deceased had told him that the knife was inflicted to him, which he (A-1) took as a joke. According to this witness, she had seen A-1 after commission of crime, when she was coming towards the village. This witness had not told that at what place, A-1 had met her, whether that place Crl. A. No. 728-DB of 2001 -21- was very near to the place of occurrence. It has come in evidence that Balaji Plywood Factor is situated outside the village at a distance of 4-5 killas. A-1 was a resident of the village. This witness has also not stated that clothes of A-1 were blood stained. From the statement of this witness, it does not establish that after the occurrence, A-1 was seen in the proximity of the place of occurrence in some suspicious circumstance.

32. The next witness to the last seen is PW.13 Jit Singh, father of the deceased. According to him, on the day of occurrence, he was present in the house. Before the accused called the deceased from his house for a morning walk, this witness had already gone out of the house to answer the call of nature towards Balaji Plywood Factory. He had stated that near Balaji Plywood Factor, he had seen the deceased in the company of A-1 and A-2. He asked his son (the deceased) to return back to home at the earliest. He replied that he shall come back soon after the walk. This witness further stated that near the gate of the school of the village, when he was coming, he met A-3 and one Bhola. Thereafter, when he came to his house, he received information with regard to the murder of his son by A-1 and A-2. The testimony of this witness, who is highly interested witness, is inherently improbable and unreliable. It has come in the statements of PW.10 Satbir Singh and PW.8 Jasbir Singh that on the day of occurrence, this witness was not present in the house. PW.10 Satbir Singh, uncle of the deceased, along with Partap Singh (grand-father of the deceased) and complainant Ravinder Singh (brother of the deceased) had gone to the spot and took the deceased Crl. A. No. 728-DB of 2001 -22- to the Hospital. He has categorically stated that on that day, Jit Singh was not present in the house. PW.8 Jasbir Singh also stated in the cross- examination that when he went to inform the family of the deceased, he did not notice Jit Singh at the house of the deceased. The presence of PW.13 Jit Singh was not marked in the inquest proceedings. He also did not go to the Hospital. All these facts create doubt about the presence of this witness on the day of occurrence as well as regarding his statement that near the Balaji Plywood Factory, he had seen the deceased in the company of A-1 and A-2. In his statement before the court, this witness has categorically stated that his son was murdered only by A-1 and A-2 and none else.

33. In view of the above, the testimonies of all the four witnesses of last seen of the deceased in the company of the accused, are doubtful.

34. The next circumstantial evidence, led by the prosecution, is the evidence of extra judicial confession, made by A-1 and A-2 before PW.9 Randhir Singh, a resident of the same village. The alleged extra judicial confession was made by A-1 and A-2 on 13.1.1998, after more than one month. According to PW.9 Randhir Singh, on that day, when he along with his son was present in the house, A-1 and A-2 came to him and they confessed one by one before him that they had caused the murder of the deceased and they be produced before the police, as the police is after them. The reliability and trustworthiness of this witness and his statement is to be analysed in view of certain facts. It has come in evidence that before the occurrence, there was a dispute between him and the grand-father of the Crl. A. No. 728-DB of 2001 -23- complainant, which was later on compromised. This witness was not holding any post of position. He was not having any influence in the police. When he produced the accused before the police, his statement with regard to the extra judicial confession made by A-1 and A-2 before him was not recorded by the police. The prosecution is not giving any reason and explanation as to why A-1 and A-2 made the extra judicial confession before this witness after more than one month of the occurrence, when during the investigation, their names had come much earlier. In the last, the important fact, which has come on record, is that in the remand papers, submitted by the police to the court, on the production of both the accused before the Magistrate, the factum of extra judicial confession made by them before PW.9 Randhir Singh was not mentioned at all. In Surinder Kumar v. State of Punjab, AIR 1999 Supreme Court 215, it was held that in a situation where the factum of extra judicial confession made by the accused has not been disclosed in the remand application, then the alleged extra judicial confession becomes doubtful.

35. In light of the aforesaid factors, the evidence of extra judicial confession led by the prosecution does not inspire confidence. The trial court, while convicting the accused on the basis of the aforesaid evidence, has not properly analysed and discussed the issue and has only observed that the extra judicial confession made by the accused persons also establish the chain to connect the accused with the crime. Even the said extra judicial confession was made only by A-1 and A-2. As far as A-3 is concerned, there Crl. A. No. 728-DB of 2001 -24- is no evidence of extra judicial confession by him.

36. Now the only circumstantial evidence remains against the accused is the evidence of motive. According to the prosecution, the deceased was having love affairs with Reena, a girl of the same village. She had told him the deceased that A-2, who was her cousin, had exploited her and she was having a pregnancy from him. She had also told the deceased that he should be careful with A-2, as he could cause his death. According to the prosecution, it was the motive of A-2 for committing the crime in conspiracy with A-1 and A-3. In our opinion, to prove the aforesaid motive, the prosecution has not led sufficient, reliable and trust-worthy evidence. It is admitted position that four members of the family have been examined by the prosecution. None of them has stated even a word about the love affairs between Reena and the deceased or about the relation of the deceased with said Reena or any of the accused. In their statements before the court, none of them had uttered a word that the accused were having any enmity with the deceased on account of his affairs with Reena. It has come in the statement of Inspector Satyawati (PW.17) that during investigation, Reena was interrogated. She was also cited as a prosecution witness. When PW.15 Dhiraj Kumar was examined, Reena was very much present in the court, but she was not examined by the prosecution on the ground that she was won over. Nothing has been stated by the Investigating Officer about the alleged motive. In order to prove the motive, the prosecution has examined PW.15 Dhiraj Kumar, a resident of village Bupania, in District Jhajjar. The Crl. A. No. 728-DB of 2001 -25- deceased was his maternal uncle's son. This witness had stated that the deceased and Reena were having love affairs. He further stated that they used to meet in his presence. He further stated that he used to pass over the love letters written by them to each other. Therefore, he identified the handwriting of Reena on letter (Ex.P1) and the new year greeting card (Ex.P2). This part of the statement of this witness seems to be improbable. This witness is residing in a village, situated at a far away distance in a different District, whereas the deceased and Reena were residing in the other village. It cannot be believed that they were exchanging love letters through this witness. Though the letter (Ex.P1) and the greeting card (Ex.P2) were exhibited, but mere exhibition is not the proof of the document. According to Explanation to 47 of the Indian Evidence Act, 1872, a person is stated to be acquainted with the writing of another person, when he has seen that person writing, or where he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. In light of the said Explanation, it cannot be said that PW.15 Dhiraj Kumar was acquainted with the handwriting of Reena. According to him, he only used to deliver love letters of the deceased and Reena to each other, which is highly improbable, because he was not the resident of the village, where Reena and the deceased were residing. Thus, in our opinion, the prosecution has failed Crl. A. No. 728-DB of 2001 -26- to establish the alleged motive.

37. Though it has been alleged by the prosecution that all the accused hatched a conspiracy and committed the murder of the deceased because of the aforesaid alleged motive, but the prosecution has failed to establish the said conspiracy by leading cogent evidence. To establish a charge of criminal conspiracy, the prosecution must prove an agreement between two or more persons to do or cause to be done some illegal act or some act, provided that where the agreement is other than to commit an offence, the prosecution must go further and prove that some act besides the agreement was done by one or more of the parties in pursuance of it. In the instant case, the prosecution has not led any evidence to prove the offence of criminal conspiracy. There is no evidence on record, which establish that the accused had ever agreed to cause death of the deceased. There is no evidence that in furtherance of the said conspiracy, they have committed the alleged crime. Even there is no evidence that all the accused, who are residents of the same village, are good friends and they had conspired to kill the deceased for a particular motive. Further, in the instant case, the prosecution has even failed to lead any link evidence to establish that all the three accused were connected with the alleged crime. Undisputedly, no recovery was effected from A-1 and A-3. The recovery of blood stained clothes i.e. shirt (Ex.P8), pant (Ex.P9) and sweater (Ex.P10), which were worn by A-2 at the time of the alleged occurrence, has not been connected with the alleged offence, as according to the report of the Forensic Science Crl. A. No. 728-DB of 2001 -27- Laboratory, Haryana, Madhuban (Ex.PK), no blood was found on those clothes. Further, in this case, the weapon of offence, used in the crime, has not been recovered at all. All these facts further establish that there is no link evidence on the record, which further creates doubt in the prosecution case.

38. From the aforesaid analysis of the evidence led by the prosecution, we are of the opinion that the circumstantial evidence led by the prosecution in the shape of last seen, extra judicial confession and the motive, does not lead us to reach a conclusion that it is the accused, who have committed the alleged crime. Though from the last seen evidence, some grave suspicion has been created against A-1 and A-3, but it is settled principle that suspicion, however strong, is not the proof of guilt. The court has to draw the line between strong suspicion and the proof. There is always a danger in the case depending upon circumstantial evidence that conjecture or suspicion may take the place of legal proof. In this regard, the Hon'ble Supreme Court in Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343 has held as under : “ 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 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, Crl. A. No. 728-DB of 2001 -28- 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.” In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Supreme Court, while holding that before convicting a person on the basis of circumstantial evidence, the court must fulfill the following conditions precedent : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or `should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be (3) (4) proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In subsequent judgments, the Hon'ble Supreme Court has reiterated these principles.

39. In the instant case, if we analysis the evidence in view of the aforesaid principles, then the circumstantial evidence led by the prosecution does not satisfy the aforesaid test. It is well settled that a moral conviction Crl. A. No. 728-DB of 2001 -29- regarding the guilt of an individual has no place in criminal jurisprudence. A court of law is to get at the truth from the legal evidence placed before it by either side and is not to be guided by a moral conviction or influenced by the gravity of the crime. An order of conviction can be passed 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 the instant case, the circumstantial evidence led by the prosecution does not cross the line of suspicion leading towards the proof. Therefore, we are of the opinion that the circumstantial evidence led by the prosecution is not sufficient to bring home guilt of the accused beyond reasonable doubt.

40. In view of the above, the impugned judgment of conviction and the order of sentence passed by the trial court are set aside, and the appellants are acquitted of the charges framed against them.

41. The appeal stands allowed. ( SATISH KUMAR MITTAL ) JUDGE March 22, 2010 ( JORA SINGH ) JUDGE