Pappu alias Mahabir vs State of Haryana

S. S. Dewan, J.

The appellants stood charged under Section 302 read with Section 34 Indian Penal Code, for having committed the murder of Udal alias Raju deceased on the evening of March 11, 1987. On a consideration of the circumstantial evidence on which the prosecution had sought reliance the trial Court held that the charge has been brought home to the appellants. Accordingly Pappu and Man Singh appellants have been convicted under Sections 302/34 Indian Penal Code and each of them has been sentenced to undergo imprisonment for life and a fine of Rs. 500/ or in default of payment of fine to undergo further R.I. for six months.

The prosecution case in brief is that Chander Pal PW is an employee in the office of Haryana State Electricity Board at Tigaon, District Faridabad as a Peon whereas he resides in Adarsh Colony Sallagarh City Palwal and is a daily passenger from his residence to his place of duty. Chander Pal originally hails from village Dandsa in District Faridabad. Accused Man Singh originally belongs to village Tosh in District Mathura (U. P.) but he lived with his coaccused Pappu and started selling vegetables. Man Singh accused was married about 13/14 years back with Smt. Drop daughter of Nanwa of village Dundsa and said Nanwa was the uncle of Chander Pal PW. About 5/6 years prior to the present occurrence, it came to the notice of Chander Pal that Man Singh accused started maltreating and beating his wife Drop as a result of which she got fracture in one of her legs and thereupon her parents declined to send her with Man Singh accused. She was, however, sent with some one else to live with him as his wife. All this annoyed Man Singh accused who started visiting the house of Chander Pal to seek his help but of no avail.

It is alleged that 4/5 days prior to 1131987, Man Singh accused took a room on rent in the house of Chander Pal in the city of Palwal from him and started living therein with a woman, aged about 30/32 years. Smt. Vidya wife of Chander Pal who was availabe for the last two years started getting treatment of a doctor from Delhi who had issued a prescription to her and she was taking medicines from that doctor during the days of this occurrence. On 1131987 at about 6.45 P.M. when Chander Pal returned from his duty from Tigaon at his house at Palwal, he found Man Singh alongwith that woman and also his coaccused Pappu and one Pardeep Kumar present in the room of his house, earlier taken on rent by Man Singh whereas his wife Smt. Vidya and his son Udal (since deceased aged about 11/12 years were also present in the house adjoining the room of Man Singh. Smt. Vidya requested her husband Chander Pal to bring medicines for her, upon which he told her that as he had just returned from his duty, he would bring her medicines after some time. Thereupon, Man Singh accused asked his coaccused Pappu to go and bring medicines for Smt. Vidya and to take along with him her son Udal. Accordingly, Pappu took Udal with him and went out to bring medicine for Smt. Vidya immediately thereafter, Man Singh wanted to take that woman alongwith him who was accompanying him for the last about 5/6 days in that house, to which she was not agreeable. This infuriated Man Singh who told Chander Pal that it was he (Chander Pal) who was not sending that woman with him. Feeling enraged from Chander Pal, Man Singh immediately left his house leaving that woman there. Thereafter, neither Udal nor any of the accused returned which caused anxiety to Chander Pal and his, wife who went in search of their son alongwith said Pardeep during the night intervening 11/1231987 and searched their son throughout at various shops of the Chemists and Medical Stores but in vain. When they returned to their home at about 4.00 A. M. on 1231987, the aforesaid women accompanying Man Singh also left their house. After sitting for few minutes at his house, Chander Pal again went out in search of his son but throughout the day on 1231983 neither any accused nor his son was traceable. It is alleged that on 1231987 some time in the evening when Chander Pal, Kishan Lal and Sohan Lal PWs were out in search of Udal and were present near the Old Fort, Palwal, they saw some boys coming from the side of tomb and they were saying that a deadbody of a boy was lying in the tomb. On hearing this, Chander Pal and his companions rushed to that tomb where they found the deadbody of Udal lying in a naked condition and the deadbody had got several injuries on it. Leaving Sohan Lal and Kishan Lal, near the deadbody, Chander Pal went to Police Station City Palwal and he lodged the FIR at 6.30 A. M. on 1231987. Sub Inspector Nand Lal went to the spot where the deadbody of Udal was lying. held inquest and sent the deadbody to the mortuary for autopsy. The accused were searched but they were not traceable. They were, however, subsequently arrested on 25.3.1987 and 1441987. On interrogation by the SubInspector, Pappu suffered disclosure statement leading to the recovery of knife Ex. P. 1 and the bloodstained clothes of the accused from the specified place of concealment

Dr. Narinder Kumar Goel PW. 1 conducted autopsy on the deadbody of Udal on 1331987 at 10.00 A. M. and found as many as 47 incised wounds as detailed in the postmortem report Ex.PA. Death was opined to be due to shock and have morrhage as a result of multiple injuries which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was stated to be within a few minutes and between death and postmortem within 24 to 40 hours. After necessary investigation, the accused were challaned and committed.

The prosecution examined as many as nine witnesses in support of its case. When examined under Section 313 Criminal Procedure Code, the accused denied the prosecution allegations. and pleaded false implication in the case but led no evidence in defence.

Mr. Ashok Kumar Aggarwal, learned counsel for the appellants has addressed us with considerable earnestness and zeal and has urged that the circumstances on which reliance had been placed by the prosecution, had not been established and even assuming that they had been established, the circumstances could not be incompatible with the innocence of the appellants and could not point to one conclusion viz., their guilt. He has also invited our attention to the principles laid down in a number of decisions of the Supreme Court in this regard. Mr. S. V Rathee, Advocate, appearing for the State has submitted, and in our view very fairly so, that he would not support the order of conviction in view of the highly suspicious features in the evidence which could not sustain the charge.

The learned counsel for the appellants has contended that there was no evidence worth the name indicating any motive on the part of the appellants to kill the deceased. There appears to be substance in this contention. It emerges from the evidence of Chander Pal and his wife Vidya Devi PWs that the marriage of Man Singh had taken place with a girl who is a cousin sister of Chander Pal PW but as Man Singh appellant maltreated her and gave beatings to her parents did not send her with Man Singh and on the other hand they sent her with some one else to live with him as his wife. On this score, Man Singh accused is stated to have strained relations with her inlaws and as Chander Pal PW did not render any help to him. Man Singh was nursing grudge against him over that matter. It is further borne out from the evidence of these witnesses that Man Singh accused got another woman of the age of about 30/35 years and he took on rent one room in the house of Chander Pal presumably to satisfy his sexual lust; that on 1131987, Man Singh brought with him his coaccused Pappu alias Mahabir and they wanted to take away that woman presumably for the same purpose to which she was not agreeable. The trial Judge has observed in the judgment that previously also Chander Pal PW did not render any help in the matter of sending back of his wife and now when he brought another woman, Chander Pal was making hindrance in his way by doing so and that due to his support that woman was not accompanying him (Man Singh). It appears that the trial Court has entered into the realm of conjectures by making such observation. There was hardly any need for Man Singh accused to take a room on rent from Chander Pal PW when he could easily accommodate that woman in some other house and that Man Singh accused would not have taken the house of Chander Pal on rent because of strained relations with him. Moreover, neither that woman was examined by the prosecution nor Pardip who was present in the house of Chander Pal on 1131987, was produced by the prosecution to substantiate the motive. In the premises, the trial Judge has rightly observed in the judgment that the motive put forward by the prosecution may not be very strong. Depending as the prosecution did only on circumstantial evidence, absence of proof of motive would be of immense significance and would put the Court on its guard to examine the circumstantial evidence bearing on the guilt of the accused with more than the ordinary care and with circumspection.

Coming to the first circumstance that on the fateful day at about 7.00 P. M. Pappu accused and Udal deceased had left the house of Chander Pal to bring some medicine from the bazar for Smt. Vidya wife of Chander Pal and that after some time Man Singh accused also left his house and that he must have joined hands with Pappu accused in the commission of the crime, the learned Additional Sessions Judge has committed an error of record by saying that both the accused had conspired to commit the murder of Udal deceased as of this, there was no evidence. In the instant case, the accused and the deceased had left the house of Chander Pal at about 7.00 P. M. on 1131987 whereas the deadbody of Udal deceased was recovered from the Gumbad of the old Fort, Palwal, on 1231987 in the evening. There was no evidence about the probable time of death. As has been held by the Supreme Court in Gambhir v. State of Maharashtra, AIR 1982 SC 1157 in the absence of any positive evidence about the probable time of death, it is difficult to connect the accused, with the crime as there might be a long gap and many more persons might have come in between. In the instant case, the evidence had suffered from the same lacuna. Besides, there was no evidence whatsoever of any person that the accused and the deceased had been seen together near the Gumbad (tomb) of the old Fort, Palwal or at any place near about the place where the deadbody was lying. In the absence of other evidence pointing to the guilt of an accused, evidence of the accused and the deceased being last seen together cannot lead to a conclusion of guilt (see Lakhanpal v. State of Madhya Pradesh, AIR 1979 Supreme Court 1620).

The only other circumstance for consideration is the fact of absence of the accused after the death of the deceased. It would clearly appear from the evidence and circumstances of the case that after the recovery of the deadbody of the deceased, a number of persons had gathered at the scene. To be an absconder a person should have taken prosecutions to hide so that process of law may be avoided. Absconding by itself is not conclusive of the guilt or of a guilty conscience. A person may abscond on account of fear of being falsely involved in the offence or for any other allied reason. Mere absconding may lend some weight to the other evidence establishing the guilt of the accused but this by itself is hardly any evidence of guilt. The conduct of one making oneself scarce for some days is relevant under Section 8 of the Evidence Act and might be indicative to some extent of a guilty mind but this is not the only conclusion to which it must lead the Court. Even an innocent person may when suspected of heirrous crime be tempted to evade arrest and such is the instinct of self preservation of an average human being. Absconding is a weak link in the chain of circumstances as even an innocent person may try to keep out of the way on learning about his false implication in a serious crime reported to the police. In the instant case, the accused were arrested oil, 2531987 i. e. after about 14 days of the occurrence. This circumstance cannot, therefore, further the case of the prosecution in any manner and that too in the absence of any other evidence pointing to their guilt.

For the foregoing reasons, we are of the view that the order of conviction was unfounded on facts and misconceived in law and therefore, it must be set aside. The appeal is allowed, the order of conviction recorded against the accused under sections 302/34 Indian Penal Code and the sentence passed against them thereunder are set aside.