Om Parkash alias Ommi vs State of Haryana

J.S. Sekhon, J.

Appellants, Satyavan, Om Parkash alias Ommi and Om Parkash son of Fatia alongwith accused Sagar Mal and Raju were convicted by Additional Sessions Judge, Bhiwani, vide his judgment dated 14.9.1990 and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs. 200/ each under Section 302/149, Indian Penal Code, to undergo imprisonment for a period of ten years and to pay a fine of Rs. 100/ each under Section 460 Indian Penal Code and to undergo imprisonment for a period of 10 years and to pay a fine of Rs. 100/ each under Section 412, Indian Penal Code or in default of payment of fine of Rs. 200/ each accused was ordered to further undergo RI for three months and in default of payment of fine of Rs. 100/ each on two counts, each accused was to further undergo RI for one month under each count. All the substantive sentences were, however, ordered to run concurrently. Om Parkash alias Ommi S/o Deep Chand has preferred the instant appeal while separate appeals were filed by Om Parkash S/o Fatia, Satyavan S/o Mange Ram and Raju S/o Sis Ram, being criminal Appeals No. 379DB 422DB of 1990 and 171 DB of 1992. Since all the four appeals arise out of one and the same judgment and rest upon the appraisal of same evidence. There are being disposed of by a common judgment recorded in Criminal Appeal No. 330DB of 1990. Sagar Mal S/o Deep Chand accused has not filed any appeal.

Shorn of unnecessary details the case of the prosecution is that Shiv Lal since deceased was married to Smt. Giggi Devi deceased. The couple was issueless. Shiv Lal had three brothers namely Gobind Dass, Nanu Ram, and Megh Raj, Shiv Lal deceased had adopted his brother Megh Raj''s son Murari Lal. Murari Lal was adopted at the age of 10 years and since then he had been residing with his adoptive parents. Shiv Lal had arranged the marriage of Murari Lal, who has his sons and daughters. About 11/2 or two years prior to the murder of Shiv Lal, and his wife Giggi Devi, Murari Lal had taken separate residence from his adoptive parents and started residing on the first floor in the Commission Agent Shop in Siwani Mandi, which was jointly run by Shiv Lal and Murari Lal. Shiv Lal deceased had also a Daal Mill in Siwani which was not in operation. Shiv Lal and Giggi Devi were residing in their old house situated near the Bank Building. Shiv Lal had another house which was lying vacant at that time.

On 13.6.1988, Suresh S/o Murari Lal in the morning had gone to Vikas Daal Mill of Babu Lal and informed him that Shiv Lal and his wife had been tied in their separate cots and former asked the latter to accompany him to the place of occurrence. The aforesaid Babu Lal went to the house of Shiv Lal and saw that Shiv Lal and Giggi Devi has been tied in their cots and found them dead. Thereafter Babu Lal rushed to the Police Station to inform the Police and made a statement Exhibit PDD on the basis of which FIR was recorded. After recording the FIR, the Police reached the spot, inspected the dead bodies, prepared inquest reports, dead bodies were despatched for postmortem examination, Crime Branches of Hissar and Madhuban were informed, Dog Squad was summoned and the place of occurrence was photographed.

Dr. G.P. Saluja, SMO General Hospital, Bhiwani (PW1) conducted post mortem examination on the dead body of Giggi Devi wife of Shiv Lal while Dr. Tirloki Bhushan Gupta, MO General Hospital Bhiwani (PW2) conducted postmortem examination on the dead body of Shiv Lal. The Doctors opined that death in both the cases was due to asphyxia caused by strangulation, which was antemortem in nature and was sufficient to cause death in due course of time. Appellant Ommi and accused Sagar were arrested and they made extrajudicial confessions before Chhotu and Gulabi PWs. disclosing that they alongwith their coaccused Raju, Om Parkash and Satyavan had murdered Shiv Lal and his wife Giggi Devi. On interrogation by the Police, the accused got recovered articles like watch, ring, money of Shiv Lal, sarees, kanthi, Jaimala and buzlis belonging to Giggi Devi. Speciman moulds of foot prints were taken because crime branch of Hissar had already lifted moulds of foot prints from bagicha, adjoining to the house of Shiv Lal. Finger Print Bureau expert had taken a glass on which he detected finger impressions, thereafter finger prints of the accused were also taken which were got compared.

In order to prove its case against the accused, the prosecution examined Dr. G.P. Saluja (PW1), who conducted the postmortem examination on the dead body of Giggi w/o Shiv Lal and found the following injuries.

2 linear crescentic scratch marks with clotted blood on the side of neck 3/4 cm. and 1/2 cm. The letter mark is 4 cms. below the angle of the mandible and 11/2 cms. from each other.

2 linear crescentic scratch marks present on the left side of the neck presenting 3/4 and 1/2 the later mark was 11/2 cm. below the angle of mandible and 11/2 cm. (sic).

Scratch abrasion on the outer surface of left shoulder 11/2 cm. x 1 cm., on dissection, the subtaneous tissue of all abrasions showed infiltration of blood.

The cause of death was asphyxia as a result of suffocation due to closure of mouth and nostrils which was sufficient to cause death in ordinary course of time. PW2 is Dr. Triloki Bhushan Gupta who performed postmortem on the dead body of Shiv Lal son of Bhola Ram and found the following injuries on the dead body :

Multiple scratch abrasions on the right leg front lower 1/3rd varying in size from 1/2 cm. x .2 cm. to 1 cm. x 1/2 cm. and in front of ankle joint;

Multiple scratch abrasions with clotted blood varying in size from 0.5 and x 0.2 cm. to 11/2 cms. x 03 cm. in size on the outer side of left knee and front of upper 1/3rd of left leg.

Scratch abrasions 1 cm. in diameter on right elbow back with clotted blood;

Scratch abrasions on the top of right shoulder 1 cm. x 1 cm. in size.

In the opinion of the Doctor death was due to asphyxia caused by strangulation which was antemortem in nature and sufficient to cause death in the due course of time.

PW3 ASI Bhoop Singh deposed that on 13.6.1988 he went to the scene of crime and lifted two moulds of left and right foot and the same were handed over to SI Ram Kishore (PW22). PW4 J.R. Gaur, SeniorScientific Officer, Serology, cumexoffico Asstt. Chemical Examiner to the Government of Haryana, Forensic Science Laboratory, Haryana, Madhuban Karnal deposed that he is M.Sc. in Physical Anthropology from Panjab University, Chandigarh and he had worked as Junior Research fellow Panjab University in the year 197677. On 30.7.1988, two unsealed plaster casts were received in the Laboratory for preservation by S.P. Bhiwani. After laboratory examination, the crime and specimen impressions on the plaster casts were examined and compared in respect of their shape, crime impression C/1 R appears to be in agreement with the specimen impressions S/11R in respect of its shape and size (of Om Pal son of Fatia accused), while crime impression 0/2 L was in agreement with the specimen impression S/6L in respect of its shape and size contour and the alignment of toes, in other words, the specimen tallied with the foot prints of Om Parkash son of Chhabil Dass. PW5 Jai Narain, Finger Print Expert, Madhuban deposed that he was posted in the department since 1.4.1972. He further deposed that in the case in hand a sealed parcel was received in Laboratory through Constable No. 225 which contained a stainless steel glass tumbler bearing `chance prints'' already processed by Sh. Karnail Singh, Finger Print Expert of District, Hissar and five sample papers received on 25.8.1988. The chance prints of photographs in the bureau and one photograph was Exhibit P1 bearing three chance prints. The chance prints was A & B on photograph Exhibit P.1. Both were identical with the right middle and right finger prints of Sagar Mal son of Deep Chand on Exhibit PG. The identical points regarding chance print mark A and B were shown on Ex. PG/1 to 4.

Mange Ram (PW6) deposed that he prepared scaled plan Exhibit PO, while Bhola Ram (PW7) took photographs of the place of incident. Harbans Lal PW8 Naib Tehsildar, Bhiwani deposed that application by the police for lifting the foot moulds of Sagar alias Sagar Mal, Ommi alias Om Parkash son of Deep Chand was received and he accorded sanction as both the accused had expressed no objection in giving samples and on the same day i.e. 12.8.1988 foot moulds of the above said two accused were lifted with the help of plaster of parties by the Police. Karnail Singh, Finger Print Expert (PW9), deposed that on 13.6.1988 he alongwith S.S. Chander, visited the spot in the area of Siwani and found a steel glass with finger impressions. He developed finger impression of the glass and packed them in a wooden box and the same was into a sealed parcel.

Balbir Singh (PW), Judicial Magistrate, Bhiwani deposed that on 5.8.1988 an application Ex. PCC was moved by Inspector, CIA, Bhawani for the purpose of obtaining finger prints of Raju accused. He passed zimni order and directed to produce the accused before SDM Bhiwani for doing the needful. He also attested finger prints taken by Constable Satpal Singh. Babu Lal (PW11) is the complainant and has corroborated the FIR while PW12 Chhotu Ram deposed that Sagar and Ommi accused made extrajudicail confession before him that they along with other accused had caused death of Shiv Lal and his wife by strangulating and has snatched their valuables from their body and thereafter had produced them before the police.

PW13 Parbhat Kumar deposed that in his presence accused Om Parkash made disclosure statement and in pursuance of that got recovered one chaddar, one ring and one buzli lying concealed in the house. There after accused Satyavan made disclosure statement and in pursuance of that got recovered sarees Exhibits P.22 to P.24, one Maia, one ring. All these articles were got identified from Murari Lal. PW14 Shri Ashok Kumar Verma, Judicial Magistrate Ist Class, Rewari deposed that on 13.8.1988 he was posted as Judicial Magistrate, Ist Class, Bhiwani and on that day SI Parbhati Lal produced application Exhibit PZ for obtaining foot prints of accused Om Parkash and Satya alias Satyavan and he had permitted the police to obtain moulds of foot prints of the said accused. On the same day another application was presented before him for taking finger prints of both accused Om Parkash and Satyavan and he passed order thereon allowing the police to take finger prints of the said accused.

Megh Raj (PW15) who had simply stated that on 12.6.1988 at about 7.00 p.m. accused Sagar and Raju crossed him and one Harnarain while Dharam Chand (PW16) deposed that in his presence Murari Lal PW identified certain articles to be belonging to Shiv Lal and Giggi Devi. Harnarain (PW17) has made similar statement as that made by Megh Raj (PW15).

When examined under Section 313 Criminal Procedure Code all the accused denied the prosecution allegations and pleaded their false implication. Apart from it, they denied having produced any articles, but asserted that these were placed upon them.

After hearing the learned Counsel for the parties and perusing the evidence on record, the trial Court convicted and sentenced the accusedappellants as mentioned in the opening part of the judgment.

We have heard the learned Counsel for the appellants as well as the State at length. We also perused the entire documentary evidence on the record with the assistance of the learned Counsel for the appellants.

On the consideration of the matter, we have reached the conclusion that these appeals deserve to be accepted.

In this case the conviction of the accused appellants is based on the circumstantial evidence, namely last seen foot moulds lifted from the spot, finger prints, alleged recoveries, disclosure statements etc. There is direct evidence and the trial Court, on the basis of circumstantial evidence, had convicted the accused for the offences of murder and dacoity the details of which have been given in the foregoing paras. In case of circumstantial evidence the links in the chain of proved accusation should be that comprehensive so as not to be explainable on any other reasonable hypothesis except pointing to the guilty of the accused. Moreover circumstances being dumb witness the role of investigator assumes importance as it can be easily fabricated.

Now examining the evidence in hand it transpires that the testimony of Megh Raj (PW15), brother of Shiv Ram deceased, is that while going towards Mandi in the company of Harnarain (PW17), had seen Raju and Sagar accused along with two others persons on 12.6.1988 at 7.00 p.m. near the railway level crossing, Siwani. Both these witnesses had given description of those two persons neither in their statements before the police nor in the Court. Neither they were named in the FIR nor were pointed out by these witnesses at the time of trial though there were three other accused besides Raju and Sagar. As such, it cannot be said as to who were those persons accompanying Raju and Sagar. Moreover, according to Harnarain; three other persons were accompanying Raju and Sagar Mal accused whereas Megh Raj PW had stated that only two other persons were present near there. Even if it is taken that two accused did meet Sagar Mal and Raju accused it is a neutral circumstance as there is no evidence on the file to show that this place is located near the scene of crime. Moreover, Murari son of this witness and one Suresh were also suspected for this murder and taken by police to Forensic Science Laboratory, Madhuban to face the detector test and left off later on. Thus reasonable possibility cannot be ruled out that this witness has set up the above referred version in order to absolve his son.

The other glaring omission in the case is that no identification parade was held to fix the identity of three unknown accused. The prosecution has failed to render any plausible explanation for not holding the same. ASI Dhoop Singh (PW3) had lifted two moulds of foot prints, one of right foot and other of the left foot from the spot on 13.6.1988. These moulds were received at Forensic Science Laboratory on 30.7.1988 in unsealed parcel which were examined by G.R. Gaur, Senior Scientific Officer (PW4). As per his report, Exhibit PF, one crime mould C/1 appeared to be in agreement with sample mould of Om Pal s/o Fatia appellant while the other crime mould C2 was in agreement with sample mould of Om Parkash s/o Deep Chand appellant.

The proposition of law is well settled that evidence of foot prints in itself is a weak type of evidence and riot of conclusive nature like the science of finger prints.

Following recoveries were made from the accused in pursuance of their disclosure statements.

Om Parkash son of Fatia accused on interrogation made a disclosure statement Exhibit PJJ on August 13, 1981 in the presence of Parbhat Kumar (PW13) and one Hari Singh at CIA Staff Bhiwani. On the basis of the aforesaid statement, he got recovered one woollen Chaddar, gold ring, and gold buzlis. Exhibits P27, P28 and P9/12, respectively, from the box lying in the house in village Kheri Daulatpur.

Om Parkash s/o Deep Chand in pursuance of his disclosure statement Exhibit PGG dated August 10, 1988, made before Sub Inspector Murari Lal (PW25) during interrogation, got recovered currency notes Exhibits P21/110 and four sarees exhibits P17 to P21 from a box lying in his house in village Shahpur in the presence of Chhotu Ram (PW22) and Gulab Singh, who was not examined by the prosecution.

Sagar Mal accused in pursuance of his disclosure statement Exhibit PHH made before SI Murari Lal (PW25) during interrogation got recovered one gold ring exhibit P15 and one Kanthi Exhibit P16 which were burned near his house at Hissar in the presence of Chhotu Ram and Gulab Singh who was not examined by the prosecution and Murari Lal (PW19).

Satyavan in pursuance of his disclosure statement Exhibit PKK dated 13.8.1988 made before SI Parbhati Lal during interrogation, had got recovered 3 sarees Exhibits P22 to P23, Mal P25, and ring P26 in a heap of fodder in his residential house in village Kheri Daulatpur in the presence of Prabhat Kumar (PW13) and Hari Singh, who was not produced in the witness box by the prosecution.

In pursuance of his disclosure statement Exhibit PFF, Raju accused got recovered a wrist watch exhibit P12 in the presence of Babu Lal (PW11) and Murari Lal (PW19). He also got recovered one part of Buzli exhibit P14 from a box in his house at Hissar in the presence of both these witnesses.

Inspector Sagar Singh (PW26) had arrested Raju accused from his horse farm at Hissar in the presence of Murari Lal (PW19) and Babu Lal (PW11). On interrogation, he made a disclosure statement Exhibit PFF in pursuance of which he got recovered one pair of earnings from an iron box lying in a room at the house farm.

The recovery of currency notes from Om Parkash s/o Deep Chand accused seems to be fabricated one. It cannot be said with certainty that these currency notes were the same which were allegedly stolen from the house of the deceased. Moreso, it does not appeal to a reasonable mind that a person who commits an offence would retain this amount in an iron box till 10.8.1988. Therefore, this aspect of the prosecution story cannot be believed especially when no independent witness to prove the alleged recovery of currency notes was joined by it.

Ginni Devi (PW18), who is the wife of Murari Lal, an adopted son of Shiv Lal deceased, in her crossexamination had stated that there were 15 or 20 rings 5 to 10 watches besides 2030 sarees. She had identified only Juvarala out of 507. It is revealed from her testimony that she had no knowledge what else was identified by her except the above said article. In has also come in her evidence that Shiv Lal deceased used to deal in pawning ornaments. According to Dharam Chand, Tehsildar (P.W.16), who had conducted the identification parade, Ginni Devi (P.W.18) had identified one ring Exhibit P15 and not Kanthi Exhibit P.16. However, she identified Juvamala Exhibit P25, ring Exhibit P.26, another ring Exhibit P.28, one pair of buzli Exhibit P.29/12 and sarees Exhibits P17 to P20 and P22 to P24. The testimony of this witness further reveals that Amar Singh PW20 had identified some articles. In has crossexamination this witness had categorically stated that the articles which were got identified from the witness on 26.9.1988 had no specific marks of identification. He had furnished certain details in this regard in the identification parade memo.

Though as per prosecution version, Om Parkash @ Ommi accused had produced four sarees and currency notes of denomination of Rs. 1000/ but since there was no identification mark on the sarees as well as on the currency notes it cannot be said that the article recovered from this accused in pursuance of his disclosure statement were the property stolen by the accused from the house of the deceased.

The extrajudicial confession made by Sagar, coaccused of Omi appellant before Chhotu Ram (PW12) is of no consequence qua the culpability of the coaccused, i.e. the present appellants, as the confession of an accused against his coaccused ia a very weak type of evidence. Moreover, according to Chhotu Ram, he is an exSarpanch of his village Naloi and only Sagar accused was known to him. Consequently, it could be well accepted that Sagar accused could repose confidence on him in view of the heinous crime like two murders but it is of no consequences qua the culpability of Om Parkash and other coaccused of Sagar. Moreover, the presence of impression of left middle and right ring finger of Sagar accused, coaccused of the appellants on the steel glass tumbler recovered from the spot, as per evidence of Jai Narain Finger Print Expert (PW5) clearly clinches the issue of participation of Sagar Mal coaccused of the appellants in the occurrence but it is of no consequence qua the culpability of his coaccused, i.e. the present accusedappellants.

In the absence of any identification mark on the incriminating articles alleged to have been recovered from the accused in pursuance of their disclosure statements, it cannot be said that these articles actually belonged to the deceased. It is not proved from the statement of Dharam Chand Tehsildar (PW6) that incriminating articles were got mixed with a number of similar types of the articles. Thus, the identification parade cannot be relied upon regarding these articles, especially when there is material discrepancy in th establishment of Ginni Devi (PW18), who in her crossexamination had admitted that she had identified only Juvamala, whereas Tehsildar Dharam Chand, who had conducted the said identification parade stated at the trial that Ginni Devi had identified one ring and not kanthi. According to Dharam CHand (PW16) she had also identified other articles mentioned earlier, though their identification was denied by her. In the light of these material discrepancies. The testimony of these two witnesses qua the identification parade does not inspire any confidence and as such the conviction of the accused cannot be based on it.

In view of the foregoing discussion, the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. Consequently, the appeals filed by the accusedappellants namely. Om Parkash alias Om Pal, Satyavan and Raju are accepted, the impugned order of the trial Court dated 14.9.1990 convicting and sentencing them is set aside and they are acquitted of the charges framed against them. They be set at liberty if not required in any other case. Fine, if paid, shall be refunded to the appellants.

JUDGMENT accordingly.