Rohtash vs The State of Haryana

Gurdev Singh, J.—These appeals by Rohtash son Suraj Mal and Raju alias Raj Kumar, Appellant/accused, are directed against the judgment dated 28.3.2002 passed by the Additional Sessions Judge, Sonepat, vide which he convicted the accused for the offence u/s 302 read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- and in default thereof to further undergo rigorous imprisonment for a period of two months.

The prosecution story, in brief, is that Zile Singh deceased had engaged his daughter Smt. Devi and Pala son of Roop Chand had also engaged his daughter in the same family about 20/22 days before the present occurrence. On 20.12.1998 at about 9 a.m., Pala took the deceased with him to Panipat from the fields of Ram Kumar Ex-Sarpanch on the plea of performing the engagement of his daughter. Thereafter, he never came back. On 22.12.1998 in the afternoon, Pala had gone to village Panchi Gujran. When Ram Kumar asked from him about the whereabouts of the deceased, Pala disclosed to him that on 21.12.1998 at 4.30 p.m., they came back to Panchi Gujran from Panipat from where the deceased left for his house on the bi-cycle and while leaving that place, it was told by the deceased that he will come to his house after meeting the Secretary of that village. Thereafter, Satbir Singh complainant (PW-5), nephew of the deceased, alongwith Ram Kumar, Prahlad Singh and Ram Sarup went in search the deceased. While they were proceeding to the village Panchi Gujran and reached near the field of Dewan Chand, they found that the dead body of the deceased was lying on the road adjoining those fields. The torn shirt of the deceased, woolen chadar and the other chadar of the deceased were lying in the fields, wherein wheat crop was standing and which had already been irrigated. There were strangulation mark around his neck and the blood had oozed out of his mouth, nose and eyes. After leaving Prahlad Singh and others at the spot, the complainant was proceeding to the police station to lodge a report when Sube Singh, SI (PW-13) met him on the G.T. Road, Karnal. At that place he made the statement Ex. PH about all those facts before the SI, who after recording his police proceedings sent the same to the Police Station, on the basis of which FIR Ex. PH/1 was recorded. Accompanied by the complainant, the SI came to the place where the dead body of the deceased was lying. He called the photographer to that place, who took the photographs. He prepared the inquest report Ex. PQ in respect of the dead body and sent the same for post-mortem examination. He inspected the spot and prepared rough site plan Ex. PS with correct marginal notes. The torn shirt and woolen chadar of the deceased were recovered from the spot, which were converted into a parcel and the same was sealed by him with the seal ''SS''. The sealed parcel was taken into possession, vide Ex. PT. The shoes of the deceased were also recovered from that place, which were converted into a parcel and the same was sealed with seal ''SS'' That sealed parcel was taken into possession, vide memo Ex. PU. The other chadar of the deceased was also recovered from that place, which was taken into possession after converting that into a sealed parcel, vide memo Ex. PN. Two pieces of rope having the length of 7 inches and 14 inches respectively and two steel keys were also recovered from that place, which were converted into separate parcels and were sealed with ''SS''. The autopsy on the dead body was performed by Dr. Arun Garg (PW-6), who found ligature mark around the neck and other ante-mortem injuries. He gave his opinion that the cause of death was asphyxia, as a result of strangulation, which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. After post-mortem, the wearing apparels found on the dead body were produced before that SI, who converted the same into a parcel and sealed with the seal ''SS''. That sealed parcel was taken into possession, vide memo Ex. PA. The statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure It transpired from their statements that before his death, the deceased was in the company of Rohtash, Siri Ram and Raju-accused. Kitaboodin PW came out with the version that on 21.12.1998, Siri Ram and Raj Kumar accused came to him and made extra-judicial confessions that they alongwith Rohtash, after serving liquor to the deceased, strangulated him to death by putting a rope around his neck. The accused Siri Ram and Raj Kumar were arrested on 21.12.1989 by Inder Singh, Inspector/SHO (PW-12). On interrogation, in the presence of Rajinder Singh (PW-14) and Sunder Pal (PW-11), they made disclosure statement Ex. PO and PP respectively, in which they made their confession that they alongwith Rohtash took liquor with the deceased at the tubewell of Shankar Dass and all three of them made a planning to kill him and when the deceased was under the influence of alcohol, they took him towards village Garhi Jhijhara and when they reached near the fields of Mukesh, he was caught hold of by Raju and Siri Ram, whereas Rohtash caught hold of him by his feet and thereafter strangulated him to death, after putting a rope around his neck and after committing his murder, they dragged his dead body to the filed of wheat crop where water was standing and they threw the same, alongwith the articles of the deceased in the same. Rohtash accused was arrested by Sube Singh, SI (PW-13) on 29.12.1998 and he made a similar confession regarding which memo Ex. PV was prepared. The map on scale Ex. PF of the place, from where the dead body of the deceased and his articles were recovered, was got prepared from Krishan Kumar, Patwari (PW-8). After completion of the investigation, challan was put in before the JMIC, Sonepat, who committed the same to the Court of Session on the ground that the offence u/s 302 IPC was exclusively triable by that Court.

The mandatory provisions of Section 207 of Code of Criminal Procedure were complied with by supplying to the accused the copies of the documents sent alongwith the police report and relied upon by the prosecution. From the perusal of those documents and after hearing the learned PP for the State and the learned defence counsel for the accused, the learned Sessions Judge found sufficient grounds for presuming that the accused committed offence punishable u/s 302 read with Section 34 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial.

To bring home the guilt of the accused, the prosecution examined Satbir Singh (PW-1), Naresh (PW-2), Ram Niwas (PW-3), Subhash (PW-4), Satbir Singh (PW-5), Dr. Arun Garg (PW-6), Kitaboodin (PW-7), Krishan Kumar, Patwari (PW-8), Ram Kumar (PW-9), Pehlad Singh (PW-10), Sunder Pal (PW-11), Inder Singh, SHO (PW-12), Sube Singh (PW-13), and Rajinder Singh (PW-14).

Siri Ram accused died during the trial and as such, the proceedings against him stood abated. The other two accused were examined by the trial court and their statements were recorded u/s 313 of the Code of Criminal Procedure All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication. They were called upon to enter on their defence but they did not produce any evidence in their defence.

We have heard learned Counsel for both the sides.

According to the learned Counsel for the accused, the prosecution relied upon the circumstantial evidence for proving the guilt of the accused and the chain of the circumstances for proving that guilt is not complete. The prosecution has been able to prove only two of the circumstances. First the deceased was with the accused before his death and second, the articles of the deceased and two pieces of rope were found lying near the dead body. The prosecution has also made efforts to prove on record the confessions made by the accused that they committed the murder of the deceased, but those confessions having been made before the police official are not admissible in evidence. The prosecution has failed to prove that the proximity of the time when the deceased was seen alive with the accused and the time of his death, was so short that there was no possibility of the deceased coming into contact with some other persons. Therefore, the accused could not have been convicted on the basis of that last seen theory. The prosecution has failed to prove any motive on the part of the accused to commit the murder the deceased, which is always material when the case is based upon circumstantial evidence. In these circumstances, the conviction of the accused cannot be sustained and they are entitled to acquittal.

On the other hand, it has been submitted by the learned State counsel that the prosecution successfully proved on the record that soon before his death the deceased was in the company of the accused and that last seen theory was made the basis of their conviction. In addition to that, they made confessions, wherein they stated in so many words that they made the deceased to drink the liquor and that when he was totally under the influence thereof, they strangulated him to death by putting a rope around his neck after holding different parts of his body. That ocular evidence finds corroborated from the medical evidence, as it was the opinion of the doctor that the cause of death was asphyxia due to strangulation. From the evidence of the prosecution, the guilt of the accused stands proved beyond any reasonable doubt.

It was a blind murder and the prosecution relied upon the circumstantial evidence. The following circumstances were relied upon:

(i) Before his death, the deceased was found in the company of the accused;

(ii) they made extra-judicial confessions before Kitaboodin (PW-7), therein admitting that they strangulated the deceased to death by putting a rope around his neck; and

(iii) they made confession during the investigation that the deceased was murdered by them.

The prosecution case was not supported by Kitaboodin (PW-7). He stated that the accused had not made any extra-judicial confession before him. The Public Prosecutor was given an opportunity to put those questions to him which could have been put during the cross-examination, after he was declared hostile. Inspite of that he was not able to elicit any such fact on the basis of which, it may be held that they had made any such extra-judicial confession before him. The Public Prosecutor was only able to discard his statement by confronting him with his statement recorded u/s 161 of the Code of Criminal Procedure.

Naresh (PW-2) and Ram Niwas (PW-3) did make their statements that on 21.12.1998, they had seen Zile Singh deceased with the accused. It was stated by Naresh (PW-2) that on 21.12.1998, he, alongwith Ram Niwas, was going to liquor vend situated in Panchi Gujran, G.T. Road, to purchase the liquor for celebrating the birth of his son. When they reached near the tubewell of Shankar Dass, they saw Zile Singh deceased with Siri Ram, Rohtash, Raju and one Thakur. After purchasing the liquor, they came back. Thereafter, Ram Niwas stayed at his tubewell and he went to his house. The statement of this witness was supported by Ram Niwas (PW-3). During his cross-examination, he stated that he left the field at about 5.30 p.m. and had reached the tubewell of Shankar Dass at about 5.45 p.m. Thus, according to him, he had seen the deceased with the accused on 21.12.1998 at 5.45 p.m.

According to Satbir Singh, complainant (PW-5), the dead body of the deceased was found in village Panchi Gujran on 21.12.1998. It was on his statement Ex. PH that FIR PH/1 was recorded by Sube Singh, SI (PW-13). That SI deposed about making of the inquest report Ex. PQ in respect of the dead body and sending the same to the hospital for postmortem examination, but according to him, it was on 22.12.1998 that FIR was recorded and other documents were prepared. In fact, the dead body was recovered on 22.12.1998 itself. The autopsy on the dead body was performed by Dr. Arun Garg (PW-6) and it was not disputed at the time of arguments that the death of the deceased was homicidal. According to this doctor, the time elapsed between the death and post-mortem was within 48 hours. The post-mortem examination was performed on 23.12.1998 at about 11.20 a.m. Thus, according to this doctor, the death of the deceased took place between 21.12.1998 to 23.12.1998. No evidence was produced by the prosecution about the exact time of death of the deceased. For basing the conviction on the last seen theory, it was incumbent upon the prosecution to prove that the proximity of the time when the deceased was found alive with the accused and the time of death was so short that there was no possibility of any other person coming into contact with the deceased. Therefore, this last seen theory alone cannot be a circumstance for proving the fact that the death of the deceased was caused by the accused.

It was stated by Sunder Pal, Inspector (PW-11) that on 25.12.1998 Inder Singh, SHO, met him in his office and disclosed that Siri Chand and Raju accused would be appearing in the court and they be tracked down. Consequently, he accompanied by that SHO went to the Court and made an application for permission to arrest the accused. After obtaining permission of the Court, he arrested those accused. When he interrogated them, they made disclosure statement Ex. PO and PP. Though Inder Singh, SHO (PW-12) made a similar statement, but according to him, it was on 27.12.1998 that the accused were so arrested and made disclosure statements. It was stated by Rajinder Singh (PW-14) that on 25.1.1999, both the accused had appeared before the Court and they confessed before the police that they committed murder of Zile Singh. Those accused disclosed that Rohtash clutched the deceased in his arms and thereafter they strangulated the deceased with the help of rope.

All these three witnesses have contradicted each other about the date on which the accused made the said confessions. These confessions made before the police are hit by Section 25 of the Evidence Act, 1872. No confession made before the police official is admissible against the accused. The investigating agency never made any effort to get such confession recorded from a Magistrate u/s 164 of the Code of Criminal Procedure Thus, the evidence produced by the prosecution regarding the confession of the accused is not admissible in evidence and cannot be looked into.

In case of circumstantial evidence, motive is very material. Moreover, before convicting the accused on the basis of circumstantial evidence, the Court is to see that the circumstances being put against the accused are proved convincingly by cogent and trustworthy evidence and the links in the chain of such circumstances is so complete so as to establish the guilt of the accused and exclude the hypothesis of their innocence. The prosecution has been able to prove only one circumstance, which is very weak and in the absence of any motive on the part of the accused to commit this crime, that circumstance alone is not sufficient to sustain their conviction.

In the result, these appeals are hereby accepted. The conviction and sentence of the accused is set aside. If they are in custody, they be set at liberty forthwith. Fine, if already deposited, be refunded to them.