Diwan and anr. vs State of Haryana

Harbans Singh Rai, J.

Diwan Singh and Baljit were tried and convicted under Section 302 read with Section 34 IPC by Additional Sessions JudgeII, Bhiwani vide his order dated October 28, 1988 and were sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/ each and in default of payment of fine to undergo further rigorous imprisonment for one year each.

Feeling aggrieved, they have filed this appeal.

Prosecution case, in brief, is that on December 9, 1987 a dead body was noticed in the fields of village Chang. Police was informed. S.I. Bal Kishore who had recorded the statement of Chander Dhan regarding the dead body reached the spot and prepared inquest report. He found one pair of "Cbappals" near the spot and took the same into possession. The dead body was photographed and was sent to the hospital for postmortem examination. After postmortem examination, the dead body was cremated.

Randhir deceased belonged to village Meharda, District Jind who used to deal in the sale of fodder with his camel cart. On December 15, 1987 he left his village with 500 "Pulies" of "Bajra" fodder for sale at Bhiwani in his camel cart alongwith Rs. 250/ as expenses during the transit. The "Pullies" were of the value of about Rs. 1,800/. Uptil 15/16121987, Randhir did not return. His family members got anxious. On December 16, 1987 one Bhira resident of village Lajwana informed Satpal, brother of Randhir deceased that on 7/8121987 Randhir had gone towards Bhiwani and he had noticed him at a distance of two kilometres from village Chang. He had noticed his camel cart near a "Khokha" but Randhir was not there. Satpal alongwith others went to Bus Stand Chang. They came to know about the recovery of dead body. Then they went to Police Station Sadar Bhiwani and identified the clothes and photographs of the dead body confirming the same to be of Randhir.

On December 27, 1987 Satpal went to village Kaluwala and contacted Nathu Ram Sarpanch who took him to the house of Rajpal and noticed camel cart belonging to Randhir present in his house. On enquiry, he told them that he had exchanged the camel cart with the camel cart of Diwan Singh. They then went to the house of Diwan Singh and found the cart of Rajpal there. Police was informed. Police went to the house of Diwan Singh who was interrogated. Diwan Singh disclosed that he alongwith Baljit had divided the belongings of Randhir. Two ropes, one "Chaddar", and one pair of shoes had fallen to his share which he had kept in his box and could produce the same. In pursuance of his disclosure statement, he got these articles recovered. Then Baljit was interrogated which led to the recovery of a quilt which was also taken into possession. After investigation, both the accused were challaned, tried, convicted and sentenced in the earlier part of the judgment.

Prosecution, in support of its case, examined PW 1, Dr. Subhash Chander Sharma who had, conducted postmortem examination on December 10, 1987 at 11.30 a. m. on the body of an unknown male, approximately 25 years of age and had found the following :

"The body was of a moderately built and nourished male, 5''2" in height, wearing light green shirt, Pyjama, chocolate colour Banian and black underwear. On face and all over the body, sand particles were present. Rigor mortis was absent in all the four limbs. Face and upper half of the chest was congested. Eyes were congested and protruding outwards. Tongue was protruding out of mouth. On dorsal and ventral surface of tongue, marks of biting by teeth were present.

On front of neck there was a highly congested dry, coarse leathery to feel patch between the chin and upper border of chest 5" X 3" in dimensions. Subcutaneous tissue had haematoma. Larynx was congested. Two tracheal rings below cricoid bone were broken on anterior side. Trachea too was congested.

There was one abrasion 1. 5" x 1.5" in size on left side of abdomen,

above umbilicus and 2 away from midline.

There were there abrasions on left part of lower abdomen varying in size from 1" X 11/2" away from midline.

Both lungs were congested and healthy. In heart left chamber was empty and right was full of dark venous blood. The atlanto occipital joint was broken."

In his opinion the cause of death in this case, was asphyxia caused by strangulation. Injuries were antemortem in nature and sufficient to cause death in normal course of events.

P.W. 2 Radhe Shayman had taken three photographs of the dead body on December 9, 1987.

P.W. 3 Chander Bhan Lambaradar deposed that on December 9, 1987 at about 6.00 p. m. he was present in his house. One Azad P.W. had come to him and told him that a dead body was lying near the field of Suraj Bhan Mahipal near the road. On receipt of this information he reached the spot alongwith Chowkidar Jhandu Ram. On seeing the dead body, they could not identify it. He left Chowkidar at the spot and informed the police. Police came alongwith him and prepared the inquest proceedings. A pair of "Chappals" was lifted from near the dead body.

P.W. 4 Satpal is brother of Randhir deceased. He deposed that the deceased had left on December 5, 1987 alongwith 500 "Pullies" of Bajra for sale to Bhiwani in a camel cart and was having Rs. 250/ in his possession as transit expenses. The "Pullies" were of the value of Rs. 1,700/ or Rs. 1,800/. Uptil 15/16.12.1987 he waited for the arrival of his brother Randhir but he did not return. On December 16, 1987 one Bhira of Lajwana had informed him that their "Rehra" was present in village Chang alongwith camel and also told him that Randhir had met him on 7/8.12.1987 at about 2.30 a. m. at a distance of two kilometres from Chang towards Bhiwani. When he came back from Bhiwani after selling "Bajra" he noticed the camel cart alongwith camel near a "Khokha" in Chang but Randhir was not there. Satpal came to village Chang and came to know that a dead body was recovered. He identified the clothes, and photographs confirming it to be that of Randhir. He further deposed that on December 27, 1987 at the instance of Siri Chand, he had gone to village Kaluwala alongwith his brother and met Sarpanch Nathu Ram who had taken them to the house of Rajpal. There he noticed their camel and camel cart in the house of Rajpal. He informed the police. Police came with him to the house of Rajpal and interrogated him, who disclosed that he had exchanged camel cart with Diwan Singh and produced a receipt confirming the same. The camel and the cart were taken into possession. On December 31, 1987 a pair of "Chappals" was shown to him in the police station which he confirmed to be belonging to the deceased. One "Chaddar", two "Rassas" and one pair of shoes were got recovered by Diwan Singh Baljit got recovered a quilt. These articles were identified by him to be belonging to the deceased.

P.W. 5 Rajpal stated that on December 19, 1987 Diwan Singh appellant had met him at Bus Stand of village Attela and he was having one camel and one camel cart. As Rajpal was also having his camel and camel cart, he exchanged his camel and camel cart with Diwan Singh at the suggestion of Diwan Singh. Writing Ex. PG was prepared in this connection.

P.W.6 Nathu Ram supported the version given by P.W. 5 Rajpal.

P.W.7 Mittar Pal did not support the prosecution case and stated that he does not know the accused. They never made any extra judicial confession before him.

P.W. 8 Om Parkash deposed that he did some work on the camel cart and was paid Rs. 200/ by both the accused. The accused also gave him a watch.

P.W.9 S.I. Bal Kishore had investigated the case. He has given the details of the investigation.

After the close of prosecution case, the accused were examined under Section 313 Cr. PC. They denied the prosecution allegations and pleaded false implication.

We have heard learned counsel for the parties and gone through the evidence, with their help.

Prosecution, in support of its case, has brought only one circumstance against the accused appellants i.e. recovery of certain articles alleged to be belonging to the deceased. There was no test identification of these articles and there is no evidence to prove beyond reasonable doubt that these articles belonged to the deceased. These articles are of common pattern easily available in every house. So simply because a pair of "Chappals", ropes, a cart and a camel were recovered at the instance of the accused will not prove that they have committed the murder of the deceased.

The prosecution had depended upon extrajudicial confession also which was made before Mittar Pal P.W. 7 who did not support the prosecution case and was declared hostile. So, no evidence of extrajudicial confession has come. As the evidence produced by the prosecution is very meagre, no offence is proved against the accused beyond reasonable doubt. We give benefit of doubt to both the accused and acquit them of the charge.