Salig Ram vs State of Haryana

Jai Singh Sekhon, J.

The appellants were tried and convicted by the learned Additional Sessions Judge, Hissar, for offence under Section 460 read with section 34 of the Indian Code and each one of them was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 500/ or in default to undergo further rigorous imprisonment for a period of one year. Feeling aggrieved against the said order Salig Ram accused has forwarded Appeal No. 416SB/1985, while the remaining accused have forwarded Appeal No. 415SB/1988, from the jail. Both these appeals shall be disposed of by this judgment as they arise out of the same transaction and rest upon the same evidence.

In brief, the facts of the case are that Ramu deceased used to work as gardener with the Municipal Committee, Fatehabad. He was found dead on a cot in the premises of library of the Municipality on the morning of 5101984 by Jagdish sweeper (P.W. 16), who apprised Ram Nath. Secy. of the Municipal Committee (P.W.3) about this fact. Sube Singh (P.W. 4), Junior Engineer of the Municipal Committee was also informed of the same. They found that there were marks of strangulation on the neck. Ram Nath then lodged report Ex. PE in this regard at the police station, which was recorded in the daily diary. Sub Inspector Asa Nand Mukhi (P.W. 18), then rushed to the scene of crime and prepared inquest report Ex. P.C. of the dead body. He also found a glass tumbler Ex. P. 5 having small quantity of wine in it and sealed it into a parcel, besides some Bhujia scattered nearby. Bloodstained earth was also lifted from underneath the cot of the victim. An empty bottle Ex. P. 6 was also lying near by and the same was seized. He also took the key, P. 7 lying towards the head of the cot and opened the lock, Ex. P. 4, of the room of Ramu. The lock was also taken possession of.

Dr. A.S. Chaudhry (P.W. 2) conducted, autopsy on the dead body on the same evening at 5.00 P.M. and found that the death had taken place due to strangulation or due to the crushing of the testicles. On receipt of the postmortem report, S.I. Asa Nand recorded the formal F.I.R. Ex. PU/1 for offence under Section 460 read with section 34 of the Indian Penal Code through MHC Ishwar Singh. He again visited the spot and prepared its rough siteplan, Ex. P.Y. besides recording the statement of Ram Singh (P.W. 17) having seen all the accused and the deceased taking liquor together at 8.00 or 9.00 P.M. on 4th October, 1984. He also recorded the statement of Richhpal (P.W. 14) who stated that he had seen the accused Om Parkash at 4.00/4.30 A.M. on 5th October, 1984, carrying one attache, while Lalan and Salig Ram carrying a bag each.

All the accused continued absconding till 11th October, 1984, when they contacted Sube Singh, Junior Engineer of the Municipal Committee in the presence of Ram Singh and confessed having taken liquor with Ramu on the night of 4th October, 1984. The deceased asked them to carry Rs. 600/ and some clothes for his relatives if any of them was going to his native village. They became greedy and thought of robbing Ramu of these articles and the money. They then went away and returned to the spot at mid night and got open the residential room of the deceased after taking the key from underneath his pillow. They removed Rs. 600/ and clothes belonging to Ramu along with attache case and the two bags. in this process Ramu got up. Apprehending that he may have identified them, they thought of killing him. Lalan and Salig Ram accused then cut a portion of the rope of the dawn of the cot of the deceased and strangulated him by putting it around his neck, while Om Parkash accused crushed the testicles of Ramu. Om Parkash accused was carrying the attache case, while the two other accused were carrying a bag of clothes each. Sube Singh took the accused and produced them before S.I. Asa Nand, who got the attache case and the two bags from their possession each of which contained currency notes of Rs. 150/ besides some clothes, which were ultimately identified by Chandu (P.W. 9) before Ram Chander Sharma, Tehsildar, Fatehabad (P.W. 5) as belonging to Ramu deceased. On 12th October, 1984, the sample thumb impressions of both the hands of the three accused were taken by S.I. Asa Nand in the presence of Shri B.S. Rawat, Sub Divisional Judicial Magistrate, Fatehbad.

Lalan accused on further interrogation by S.I. Asa Nand at the police station on 13th October, 1984 in the presence of Jaswant (P.W. 15) stated that he had kept buried a piece of rope under a tree behind the said library, vide his statement, Ex. P. V Thereafter he got recovered the rope Ex. P. 45, which was made into a sealed parcel and taken into possession vide memo Ex. P.X.

The kachha and banayan removed from the dead body of Ramu, as well as the cot on which the dead body lay were sent to the Forensic Science Laboratory and were found to be stained with human blood. The Director, Forensic Science Laboratory also found a rope Ex. 45 to be a part of dawn of the cot, while the Director Finger Print Bureau, Madhuban, found the impressions on the glass tumbler, Ex. P. 5 recovered from the spot tallying with the specimen right hand palm print of Om Parkash accused.

After completion of the investigation, all the accused were arraigned on such allegations by submitting the chargesheet before the Executive Magistrate.

The commitment proceedings ended in the trial of the case to the Sessions.

The trial Court believing the evidence of extrajudicial confession of the accused before Sube Singh, Junior Engineer, with the evidence of Ram Singh & Richhpal having seen the accused taking liquor with the deceased during the fateful night and leaving on 5th October, 1984, in the early hours of the morning, coupled with the recovery of rope in pursuance of the disclosure statement of Lalan accused, besides the tallying of the thumb impressions of Om Parkash accused and the medical evidence, convicted and sentenced all the accused as referred to above. The version of simple denial of the accused and their false implication after detaining them at the police station after two days of this murder did not find favour with the trial Court.

I have heard Shri R.A. Yadav, Amicus Curiae, and Shri J.B. Tacoria, Advocate for the State of Haryana, besides perusing the record very carefully in view of the appeals having been forwarded from the jail.

Regarding the extra judicial confession by the accused before Shri Sube Singh, Junior Engineer in the presence of Ram Singh gardener, it transpires that there was no occasion for the accused to repose confidence in this witness of such a heinous crime like murder, especially when they were not thick with him. Simply because, Salig Ram and Om Parkash accused had worked as gardeners of the Municipal Committee in the years 1980 and 1981, as deposed by Des Raj, Accounts Clerk (P.W. 6), it cannot be said that the accused would think of doing so, especially when, the deceased was also an employee of the Municipal Committee and working under the same Junior Engineer. Obviously Sube Singh and Ram Singh witnesses are interested in the deceased being an employee under him. Their conduct in reaching the spot on the morning of the occurrence and to continue joining the investigation of the case from its very inception, leaves no doubt about it. The factum that all the accused produced currency notes of Rs. 150/ each, besides the clothes of the deceased, while, appearing before this witness being highly unnatural, would also reflect upon the reliability of the evidence of these two witnesses. On the other hand, the accused would destroy or conceal all these incriminating articles, especially when they had all the time at their disposal to do so. It is noteworthy that the father of Om Parkash accused, who is an employee of some High School at Fatehabad had according to S.I. Asa Nand, approached, him and offered to produce the accused about four or five days prior to their actual surrender on 11th October, 1984. Thus the reasoning of the trial Court that there was no person at Fatehabad to help the accused in their production before the police is not acceptable. The evidence of Dr. A.S. Chaudhary (P.W. 2) that the death of Ramu had taken place by the strangulation and by pressing of his testicles, cannot be read in seeking corroboration to the new version of the accused before Sube Singh and Ram Singh witnesses, as by then the postmortem report was already before the Investigator and the possibility of creating such version cannot be ruled cut.

The matter does not rest here, as according to Ram Singh witness, initially the first accused had made the confessional statement and thereafter on being questioned by Sube Singh, the remaining two accused also adopted the same by nodding in the affirmative. But according to Sube Singh (P.W. 4) all the accused had made confessional statements at one and the same time. In the next breath he tried to wriggle out of this version by contending that he did not remember as to which of the accused confessed first of all but maintained that all the three accused had made the extra judicial confession separately. He further stated that each of the accused disclosed the active part taken by him and not of his coaccused. Thus this cock and bull story regarding the actual confessional statements by all the three accused before these witnesses is not acceptable.

In view of the factum that the recovery of the clothes of the deceased from the possession of the accused has already been found doubtful, the evidence of Chandu tailor (P.W. 9) having stitched some of the clothes for the deceased or having identified theses clothes before Ram Chander Sharma Tehsildar, Fatehabad is of no consequence.

The evidence of Ram Singh (P.W. 17) having seen all the accused taking liquor with the deceased in the building of the library at about 8,or 8.30 P.M. on the evening of occurrence or of Richhpal (P.W. 14) having seen the accused coming out of the library at about 4.00 or 4.30 A.M. that Om Parkash accused was carrying attache case, while the two other accused were having a cloth bag each, also appears to have been created later on, as it saw the light of the day, according to S.I. Asa Nand, after he had recorded the formal F.I.R. after 7.15 P.M. on 5th October, 1984, although according to Sube Singh (P.W. 4), Richhpal and Ram Singh witnesses had joined the investigation of the case after he returned to the spot along with the police after lodging the report on the morning of 5th October, 1984, and the Sub Inspector had interrogated these two witnesses. If that is so, then these two witnesses were expected to divulge these facts as by then nobody knew about the identity of the culprits. Moreover, this fact would have figured in the inquest report as well as in the formal F.I.R. recorded on the same evening at 7.15 P.M. But strange enough this version is conspicuously missing from both these documents of vital importance in a murder trial, as there is no scope for interpolating facts therein by investigator after the inquest report is signed by the doctor at the time of the conducting autopsy and the copy of the first information report is received by the Magistrate as a special report. Ram Singh witness being a colleague of the deceased was bound to support this version, whereas Richhpal witness is an employee of the same Municipality as he, is working therein as a Tehbazari Clerk. Thus, no reliance can be placed on the evidence of these two witnesses in order to conclude that the accused were seen with the deceased during the night of occurrence.

The only other circumstantial evidence against the accused is the presence of the impression of the right hand palm print of Om Prakash on the tumbler, Ex. P. 5 recovered from near the dead body of Ramu. In this regard, it is noteworthy that the presence of the tumbler at the spot not only figures in the report recorded in the daily diary at the instance of Ram Nath Secretary of the Municipal Committee (P.W. 3), but also in the positive prints PQ/13 of the photographs of the scene of crime taken by the Dharam Paul, Photographer, (P.W. 8) when the dead body still lay on the cot at the site. The presence of tumbler also figures in the relevant column of the inquest report. Strange enough, this tumbler reached the Director, Forensic Science Laboratory, Haryana, NAadhuban on 11th October, 1984, the date of the alleged arrest of the accused, even though S.I. Asa Nand was required to deposit the same promptly and not later than 6th October, 1984, As the finger prints were observed on that date. This conduct of the Investigator coupled with the assertion of the accused that they were detained at the police station since the third day of this murder, besides the factum that the production of the accused on 11th October, 1984 by Sube Singh P.W. and Ram Singh before the police had already been doubted, the possibility of creating this evidence after the apprehension of the accused cannot be ruled cut, simply because the finger impressions on the bottle were found smudged and blurred by the Director, Finger Print Bureau, it cannot be said that the Investigation had not created such evidence. It appears that S.I. Asa Nand had not deposited the sealed parcel of this tumbler on his return to the police post at 5.15 P.M. on 5th October, 1984. According to Balbir Singh Constable (P.W. 13), he has not mentioned this fact in entry No. 15 of the daily diary pertaining to his return. The admission of Ishwar Singh, MHC, Police Station Fatehabad (P.W. 10) during crossexmination that the details of the articles deposited by S.I. Asa Nand on his return to the police station vide entry 45 in the daily diary report, also leads to the same conclusion, though Ishwar Singh has stated in his affidavit, Ex. PR regarding the deposit of one parcel of tumbler on that date by S. 1. Asa Nand.

The only other evidence against Lalan accused is the recovery of a piece of rope in pursuance of his disclosure statement from underreash tree growing near the spot. This piece of rope was found to be a part of the drawn of the cot of the deceased by the Scientific Officer, in his report Ex. PBB. It is noteworthy that this rope was not found stained with blood, nor it was sent to the Forensic Science Laboratory for detecting the same. If actually this rope had been used in straitguating the victim, then it was bound to get blood stains, as Dr. A. S. Chaudhary (P W 2) during autopsy on the dead body of Ramu. had found continuous and multiple ligature marks around the neck and the death was opined to be due to asphyxia. Moreover, there was no sense in concealing the piece of rope near the spot, especially when the accused had enough time to destroy the same. The evidence of S. 1. Asa Nand about the dis closure statement made before him on 13th October, 1984 and the recovery of rope in the presence of Jaswant (P W 15) is not free from doubt, as such like evidence can easily be created, specially when during the inquest proceedings and after the postmortem examination, S. 1. Asa Nand had inferred that the strangulation was with a rope. The factum that this accused did not come forth with the disclosure statement even though he was interrogated on 11th October, 1984, also reflects adversely en the reliability of this version. The factum that S.I. Asa Nand had not mentioned in the relevant column of the inquest report about the missing of the string (dawn) of the cot also shows that this version was created later on, as in case some portion of the dawn of the cot on which the dead body lay, was cut, the Sub Inspector was bound to notice the same and mention it in the inquest report. The mere factum that it is mentioned in seizure Memo, Ex. P F of the cot etc. is of no consequence as the possibility of its preparation at a later stage cannot be ruled out.

The evidence of Dr A. S. Chaudhty, (P W 2) reveals that he has found the following injuries on the dead body during the autopsy :

Abrasion 2 cms x 1 cm over right side on neck 7 cms below chin near mendible.

Abrasion 2 cms x 1 cm over back of right elbow joint.

Abrasion 2 cms x 2 cms over back of right hand.

Abrasion 3 cms x 2 cms over back of left elbow joint,

In view of the factum that Dr. Chaudhry had observed a ligature mark around the neck, besides the fracture of cartilage of larynx and the presence of the blood stained froth clearly established that Ramu''s cause of death was asphyxia as a result of strangulation. The crushing of the testicle was also rightly found sufficient to cause death in the ordinary course of nature, as crushed testicles were lying out of the right side of the scrotum. This doctor also found that the murder was committed between the night intervening 4th and 5th October, 1984. Thus, there is no doubt that the death of Ramu was homicidal as a result of strangulation and rushing of his testicles but it is of no consequence to connect the accused with this murder.

The presence of the dead body on the cot on the premises of the library, besides the presence of human blood underneath the cot, coupled with the evidence of S.I. Asa Nand and other witnesses, leave absolutely no doubt about the place of occurrence, but this in itself is of no help to prove the charge, against the accused.

For the foregoing reasons, the prosecution having failed to bring home the charge to the accused beyond reasonable doubt, the accused are ordered to be acquitted by accepting the appeals and setting aside the impugned judgment of conviction of the trial Court. The fine, if paid, shall be refunded to them. They be released from the jail forthwith.