Raju vs State of Punjab

N.C. Jain, J.

This appeal has been filed against the judgment of the learned Sessions Judge, Ferozepur, dated 19.11.1986 by which Raju appellant alone has been convicted of the charge under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/. In default of payment of fine, the appellant has been ordered to undergo further rigorous imprisonment for two months. The other two accused, namely Madan Lal and Jagdish were given the benefit of doubt and they were acquitted of the charge.

The prosecution story as has been disclosed in the First Information Report Exhibit PE/3 by PW2 Bahadur Ram, father of the deceased Vinod Kumar is that he alongwith his family resided in the Dhani situated outside the field in village Kullar and that he had gone to Abohar in the morning of 221986. On his return at about 230 P.M. in the evening he saw the appellant standing nearby his son at the Dhani and was saying, "Raju, let us go". Both the appellant and the deceased went to the village Kullar from the Dhani at about 230 P.M. At about 9.10 P.M. the appellant came to his Dhani and told him (PW Bahadur Ram) that his son Vinod Kumar was lying fallen unconscious near the flour mill after taking liquor. PW2 alongwith his driver Gopi Ram reached the flour mill on a tractor where Budh Ram, Jit Ram and many other persons were present and found his son lying dead. The dead body was brought to the house in the village by PW2 Bahadur Ram accompanied by Budh Ram Jit Ram and Gopi Ram. It is further stated in the FIR that after making inquiries it was learnt that Raja appellant, Madan Lal son of Lekh Ram and Jagdish Lal, son of Karam Chand barbar had taken liquor and meat in the house of Madan Lal and when his son Vinod Kumar started vomiting, the appellant and the other two aforementioned persons threw him near the flour mill. It was further stated that when Bahadur Ram PW2 saw the dead body of his son at the flour mill, neither he saw the blanket nor the watch. However, in the morning the blanket and the watch were found lying near the flour mill situated near the house of Madan Lal. About the motive it was stated that two months before the occurrence his son Vinod Kumar deceased and Raja appellant had an altercation with each other over the snatching of the watch of the former. He (Bahadur Ram PW2) therefore had a suspicion that the appellant and the other two accused (since acquitted) had done his son to death by administering something in the liquor.

At the trial PW2 Bahadur Ram supported the version given by him in the FIR Exhibit PE/3. Gopi Ram PW3 driver of the tractor besides deposing that he accompanied Bahadur Ram P.W. 2 on receipt of an information from the appellant Raju and found Vinod Kumar lying dead, has further stated about his relationship with Bahadur Ram PW2. He further stated that at about 5.00 P.M. Harchand PW4 met him at Abohar and that both of them came to village Kullar on a tractor driven by PW3 and when they reached near the house of Lekh Ram, they found Raju and Vinod Kumar taking liquor while sitting in the kotha of Lekh Rant which was visible from the road and that Madan Lal and Jagdish (since acquitted) were not present there at that time PW4 Harchand son of Gangu Ram agriculturist of village Kullar has produced who deposed that at about 5.30 P.M. when he and Gopi Ram PW3 reached in front of the house of Madan Lal son of Lekh Ram (since acquitted) they saw Vinod Kumar deceased in the company of all the three accused in the house of Madan Lal and that all the accused offered the PWs. to join for liquor with them. The offer was declined by the PWs. Harchand PW4 further goes on to state that he learnt about the death of Vinod Kumar the next morning. PW5 Rattan Singh, Sub Inspector recorded the statement of Bahdur Ram PW3 Exhibit PE upon the basis of which formal First Information Report Exhibit PE/3 was registered. He prepared the inquest report Exhibit PD. This witness had sent the dead body for the postmortem examination. PW6 Ajit Singh Assistant Sub Inspector partly investigated the case and arrested the accused on 441986. Dr. N S Bhatti, PW1, Medical Officer, Primary Health Centre, Khukhera performed autopsy on the dead body of Vinod Kumar and found the following injuries on his person

A reddish contusion 4 cm x 3 cm with abrasion over it on the front of left scrotum

A red contusion 6 cm X 4 cut with abrasion over iton the front of right side of scrotum.

He further found that on dissection of scretum on right side, there was extra vacation of blood in the subcutaneous tissues. The cause of death, according to him, was due to poisoning. In the crossexamination he stated that if poison is administered or consumed then it affects lungs and intestines but in the present case the lungs and the intestines were found to be normal. He further opined that death could be caused by injuries on the person of the deceased.

After hearing the learned counsel for the appellant and the State and on going through the entire record, we are of the opinion that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. The entire prosecution case hinges on the circumstantial evidence and it has been held time and again by the Hon''ble Supreme Court in various judicial pronouncements as well as by the other Hon''ble High Courts that in the case of circumstantial evidence before basing the conviction, it is necessary to establish by cogent, succinct and reliable evidence and that the circumstances relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, circumstances must be of an incriminating character. All the proved circumstances must provide a complete chain, no link of which, must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence.

In the present can, the motive has not been proved at all. PW2 Bahadur Ram and PW3 Gopi Ram although have stated in their statement that two months prior to the date of the occurrence there was an altercation between the appellant and the deceased over the snatching of the watch of the deceased yet such a minor altercation in our view would not furnish such a strong motive that the appellant would commit heinous crime of murder. Assuming that there was an altercation, the deceased in that situation would not go with the appellant for taking liquor who happens to be a labourer. It Is too much to say that since it is the weakness of the rustics to take liquor, the appellant and the deceased must have forgotten the past and became friends after the altercation.

The last seen evidence of PW2 Bahadur Ram, the father of the deceased, does not connect the appellant with the commission of the crime because there is a gap of about 7 hours between the time when the appellant and the deceased left the Dhani and between the time of occurrence. It appears that in order to cover this time gap PW3 Gopi Ram and PW4 Harchand have been produced by the prosecution to depose that at about 5.30 P.M. they saw the appellant and the deceased taking liquor. No reliance can be placed on the statements of PW3 Gopi Ram and PW4 Harchand. They are interested witnesses. Gopi Ram PW3 is related to Bahadur Ram PW2. PW4 Harchand is also an interested witness being a coowner with Bahadur Ram PW3. Above all both the PWs are chance witnesses. They have contradicted themselves on the point of presence of the accused persons in the house of Madan Lal, Gopi Ram PW3 has stated that he and Harchand PW4 found the appellant and the deceased taking liquor and that Madan Lal and Jagdish (since acquitted) were not present there at that time. However, Harchand PW4 has stated that when he in the company of Gopi Ram PW3 reached in front of the house of Madan Lal, they saw the deceased in the company of all the three persons that is the appellant and the other two coaccused (since acquitted). This contradiction makes the presence of PW3 Gopi Ram and PW4 Harchand doubtful at 5 30 P.M.

The medical evidence to large extent contradicts the version of the prosecution. In the First Information Report Bahadur Ram PW2 has stated that on making inquiries, he learnt that his son had taken meat and liquor in the house of Madan Lal (since acquitted). The doctor has not found any piece of meat in the stomach. It appears that the appellant along. with the other coaccused were named in the First Information Report on the basis of suspicion alone. The doctor does not seem to be very clear about the cause of death. He has stated that Vinod Kumar died because of poisoning whereas at another stage he has stated that the death could be caused by the injuries on the person. Not only that it is further stated by the doctor that if the death in caused by the poisoning, the lungs and the intestines are affected. However, the intestines and the lungs of the deceased were found to be normal. In view thereof, it cannot be pain pointed as to what was the cause of the death. May be the deceased might have died on account of the injuries No. 1 and 2. reproduced above, and the injuries happen to be on the left and the right side of the scrotum which is a delicate part of the body. If that be so it, falsifies the entire prosecution story of poisoning. In any case, the court cannot be left to. guess about the real cause of death. The injuries on scrotum have remained unexplained. In such a situation benefit must go to the accused.

In the present case, there in a legal aspect as well. It have been held by the Hon''ble Supreme Court in Ramgopal v. State of Maharashtra, AIR 1972 SC 656, that in the case of death by poisoning three questions arise, namely, (firstly), did the deceased die or the poison in question ? (secondly), had the accused the poison in question in his possession ? and (thirdly), had the accused an opportunity to administer the poison in question to the deceased ? It is only when the motive is there and all the facts are proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death. The following observations of the Apex Court in Ramgopal''s case (supra) may be noticed with advantage at this stage:

"In a case of death by poisoning it is only when the motive is there and it is proved, that the deceased died of the poison in question, that the accused had that poison in his possession and that he had an opportunity to administer the poison to the deceased that the court can infer that the accused administered the poison to the deceased resulting in his death."

In the instant case, we have held that the motive is not proved. The possession of the poison, in our view, with the appellant is also not proved. In the report of the Chemical Examiner Exhibit PB, aluminium and phosphide, the constituent of aluminium phosphide was detected. This type of poison is, of course, available in the villages but it cannot be presumed that the appellant must be in possession of the same. He is a labourer. May be, agriculturists in, a villages do keep such type of substance for killing the mice but it is very doubtful that the labourer would keep it at his home. Moreover in the reported case of Ramgopal''s (supra) the death was caused by poisonous insecticides which is also easily available. The fact that a particular poisonous substance is easily available cannot prove the possession of the same by the accused in the eye of law. Moreover, once we have doubted the prosecution story regarding the appellant''s taking liquor and meat with the deceased, as has been noticed above, he would not have any opportunity to administer the poison to the deceased. In view thereof the ratio laid down in Ramgopal''s case (supra) is fully applicable to the facts of the instant case.

In view of what has been noticed above, we hold that the circumstances do not cogently and firmly establish that the appellant has committed the murder of Vinod Kumar The circumstances either taken singly or cumulatively do not form a chain so complete that it can be safely held that it is the appellant and the appellant alone who has committed the crime. He is, therefore, at least entitled to the benefit of doubt. The appeal is, therefore, allowed and the appellant is acquitted of the charge framed against him. The, if realised, be refunded to him.