Harbans Lal alias Kaku vs State of Punjab

M.L. Singhal, J.

Harbans Lal alias Kaku son of Swarna son of Arjan aged 18 years Bandmaster resident of village Pialan was tried for the murder of Nazir by Sessions Judges, Hoshiarpur in case FIR No. 2 dated 11.1.1994 registered at Police Station Sadar Hoshiarpur and was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/ or in default to undergo rigorous imprisonment for two months vide order dated 5.10.1994 therefor.

Prosecution case briefly stated runs as follows : On 11.1.1994 at about 6.30 A.M. Malook Chand PW. 17 went to village Pialan to Banta Ram PW.6 and told him that his son Nazir had not reached village Niara for playing band and as such he should accompany him to join band party. Banta Ram, Nazir and Harbans alias Kaku were engaged in the profession of playing band. Harbans alias Kaku accused is the grandson of Banta Ram''s brother. Nazir was to play band in marriage of Jheewer community on 10.1.1994 in village Niara. That marriage was to take place on 11.1.1994. Nazir had ostensibly gone to village Niara on 10.1.1994 for playing band. He had however not reached village Niara for playing band in that marriage. Banta Ram accompanied Malook Chand at about 6.30 A.M. for village Niara on cycles along Kacha passage. While they were going to village Niara along Kacha passage and had reached the revenue limits of village Niara they found cycle of Nazir lying at a distance of about 2 karams from the path leading to village Niara. Banta Ram looked for his son and found the dead body of his son lying in a pit at a distance of about 40 karams from the point where that cycle was lying. There were injury marks on the dead body. Near the dead body were lying a brass band pipe and knife. There was one left foot mould also at the spot. Banta Ram PW.6 reported the matter to the police vide statement Ex.PK, on the basis of which case was registered on 11.1.1994 at Police Station Sadar Hoshiarpur under section 302 Indian Penal Code vide formal FIR Ex.PK/3. SI Jaswant Singh SHO Police Station Sadar, Hoshiarpur PW.19 investigated the case. ASI Raminder Singh and H.C. Gurdev Chand also came to the spot. From the site of crime one mould of foot wear (gurgabi) was lifted with plaster of paris vide memo Ex. PU. From the spot cycle Ex.P.11 was also taken into possession. Blood stained earth was lifted which was made into a sealed parcel and taken into possession vide memo Ex.PU/2. There were finger impressions on knife Ex. P.2. SI Gurdip Singh was also called to the spot and he developed finger prints lying on the knife Ex.P.2 and band pipe Ex. P.3. Sketch Ex. PH was prepared with regard to knife Ex. P.2. Knife Ex.P.2 was made into a sealed parcel and taken into possession vide memo Ex. PH/1. Band pipe Ex. P.3 and cycle Ex.P.11 were taken into possession vide memo Ex. PU/1. SI Jaswant Singh prepared inquest Ex. PE on the dead body. Dr. Devinder Singh conducted autopsy on the dead body on 11.1.1994 at about 4.45 P.M. He found incised wounds, reddish and pinkish abrasions on the dead body as mentioned in the post mortem report. In his opinion, cause of death was due to haemorrhage and shock caused by injury No. 4 and other injuries which were collectively and individually sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injuries and death was within few minutes and between death and post mortem was within 24 hours. On 24.1.1994 mould of left gurgabi (foot wear) of Harbans Lal accused was taken before Sh. Jagnahar Singh, Judicial Magistrate Ist Class, Hoshiarpur by ASI Raminder Singh in pursuance of his application Ex. PA. The mould is Ex. P.1. on 10. 2.1994, finger prints Ex.P.C. of Harbans Lal accused were taken before Sh. Jagnahar Singh, Judicial Magistrate 1st Class, Hoshiarpur by Head Proficient on the specimen finger print sheet. On 13.1.1994 SI Sartaj Singh of the Finger Print Bureau Phillaur came to Police Station Sadar, Hoshiarpur and took photographs of finger prints on knife and brass band pipe after they had been taken out of the sealed parcels. On 23.1.1994 Harbans Lal accused was produced before ASI Raminder Singh PW. 18 by exSarpanch Paramjit Singh. ASI Raminder Singh interrogated him in the presence of H.C. Sukhdev Singh and Paramjit Singh. On interrogation he disclosed that he had kept concealed silver ring in the pocket of his jacket which he had buried in sugarcane field close to village Nasrala choe and that he could get the same recovered. His disclosure statement Ex. PL was recorded. He got recovered silver ring Ex. P.10 and the jacket stained with blood in pursuance of his disclosure statement. Jacket Ex. P.12 was made into sealed parcel and was taken into possession vide memo Ex. PM. sealed parcel containing knife and jacket were sent to Forensic Science Laboratory for chemical/serological examination. Assistant Director (Zoology), Forensic Science Laboratory, Chandigarh found knife and jacket stained with human blood. Impression of left foot wear on crime mould C1 lifted from the site of crime was found to be from the left fallow of foot wear `TL'' contained in parcel `T'' obtained from the suspect Harbans Lal by Forensic Science Laboratory. After investigation Harbans Lal alias Kaku accused was challaned under section 302 of the Indian Penal Code.

Case was committed to the Court of Session by Judicial Magistrate 1st Class, Hoshiarpur vide order dated 5.5.1994. Accused was charged under Section 302 Indian Penal Code by Sessions Judge vide order dated 26.7.1994. Accused pleaded not guilty to the charge and claimed trial.

After trial accused was convicted and sentenced as indicated above by the Sessions Judge, Hoshiarpur vide order dated 5.10.1994.

Feeling that he has been unjustly convicted and sentenced by the Sessions Judge, Hoshiarpur he has knocked the door of this Court through this criminal appeal.

We have heard learned counsel for the appellant, learned Deputy Advocate General (Punjab) for the State and have gone through the record.

Case rests purely on circumstantial evidence, there is no direct evidence in the case. As per ASI Raminder Singh PW.188 accused was produced before him on 23.1.1994 by exSarpanch Paramjit Singh and accused got recovered silver ring and jacket stained with human blood in pursuance of his disclosure statement. Recovery of jacket stained with human blood and silver ring falls to the ground when we look to the statement of Banta Ram PW.6 who has stated that accused was arrested on 11.1.1994 by the police. If the accused was arrested on 11.1.1994 there is no surprise that gurgabi was put on his left foot and he was made to walk at the point where the dead body was lying. If the accused was arrested on 11.1.1994 there is no surprise that he was asked to impress that knife with his finger impressions. Accused was with the police on 11.1.1994. Knife and brass band pipe were also in possession of the police. What was the difficulty if the police asked the accused to impress his fingers on knife and brass band pipe ? What was the difficulty with the police in taking the accused to the spot and making him walk there on with some gurgabi on his feet ?

These pieces of circumstantial evidence do not in our opinion carry any evidentiary value. If we exclude these pieces of circumstantial evidence, we are left with only two pieces of circumstantial evidence namely; the circumstantial of last seen and the extrajudicial confession. exSarpanch Paramjit Singh has not supported at all the extrajudicial confession imputed to the accused by the prosecution. He has stated that accused never came to him at about 8.30 A.M. on 23.1.1994 nor did he make extrajudicial confession before him; that during the night of January 10/1/1994 he had murdered his uncle Nazir with a knife in the area of village Niara. Sukhdev Singh PW.9 has stated that he was employed at the hotel of his maternal uncle Kulwinder Singh which is situated near the railway station of Nasrala. At about 7.00 P.M. on 10.1.1994 Nazir and Harbans Lal came to his hotel. Nazir purchased pakoras on credit from him. Both of them took liquor and pakoras. Both of them left his hotel on cycles. At that time Nazir was carrying brass band pipe. In his crossexamination he stated that on the following day accused was brought to the police station and he was also taken to the police station. One Jasbir alias Pinka was also taken to the police station sadar, Hoshiarpur on 11.1.1994. There is no surprise that Sukhdev Singh PW.9 incriminated the accused with a view to screen himself as he was also a suspect in the murder of Nazir in the eyes of the police. Dr. Davinder Singh SMO Civil Hospital, Hoshiarpur who performed post mortem on the dead body of Nazir did not detect any alcohol in the stomach contents. He has stated that if the deceased had consumed alcohol about half an hour prior to his death, alcohol or its smell would have been present in the contents of the stomach. He has stated that alcohol remains in the stomach for the same period as food particles. That means Nazir died 3 hours after he had taken liquor and pakoras. There is no surprise that Nazir was not with the accused at the time he was allegedly killed. Tarsem Singh PW.10 is also witness to the last seen. He has stated that about 5/6 months ago at about 7.00 PM he was in his house when he saw Nazir and Harbans Lal accused going on cycles. After about one and half hour(s) he saw accused alone coming from the side of village Naira while he was returning to his house after answering the call of nature. He cannot be believed as he appeared before the police 10/12 days after 10.1.1994. Before he had not talked to any one regarding this incident. If he had seen them going together on cycles he would have stated that Nazir was carrying brass band pipe with him. He would have stated what the accused was carrying with him. Assuming that accused and deceased had been seen together at about 7.00 PM on 10.1.1994, this circumstance alone cannot be sufficient to put the noose around the neck of the accused. It was observed in Mahmood v. State of UP, AIR 1967 SC 69 by their Lordships of Hon''ble Supreme Court that in a case dependent wholly on circumstantial evidence, the Court before recording a conviction on the basis therefor must be firmly satisfied

(a) that the circumstance from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt;

(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilty of the accused; and

(c) that the circumstances taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him.

In this case circumstances brought on record to connect the accused with the murder of Nazir do not unerringly point towards the guilt of the accused and the circumstances taken collectively are incapable of explanation on any reasonable hypothesis other than that of the guilt of the accused.

For the reasons given above, we are not satisfied that the murder of Nazir was committed by the accused and none else but by the accused alone. So, this criminal appeal is accepted and the accusedappellant is acquitted of the charged framed against him. Fine if paid shall be refunded to him.