Criminal Appeal No. 179-DB of 1991

18th May, 1993.

Petitioner Counsel: Mr. R. S. Ghai, Sr. Advocate (Sh. Bipin Ghai, for No. 2), Mr. K. K. Aggarwal with Mr. Arbind Bansal, for s
Respondent Counsel: Mr. J. C. Sethi, A.A.G., Haryana .

JUDGMENT

Rohtash son of Ami Lal, Ram Niwas son of Basant Lal, Sat Pal son of Suraj Bhan, Dharambir son of Mahadev Prasad and Kalia alias Rajia alias Randhir son of Ram Niwas were charged and tried by learned Addl. Sessions Judge, Narnauul vide F. I. R. No. 58 dated 17-2-1990 under Sections 302/ 201 read with Section 34, Indian Penal Code, on the allegation that on 16-7-1990 in furtherance of their common intention Rohtash and Ram Niwas had committed the murder of Indraj son of Ami Lal and that Rohtash, Sat Pal, Dharambir and Kalia alias Randhir on the same day had burnt the dead body of Indraj knowing that he had been murdered, and thereby destroying the evidence against the culprits who had committed the murder and screeing them from legal punishment. The learned Additional Sessions Judge, Narnaul acquitted Sat Pal, Dharambir and Kalia alias Rajia alias Randhir whereas convicted Rohtash and Ram Niwas under Section 302 read with Section 34, Indian Penal Code and sentenced each one of them to undergo imprisonment for life and to pay a fine of Rs. 3000 /- and in default of payment of fine to undergo further rigorous imprisonment for one year.

2. Feeling aggrieved against their conviction and sentence, Rohtash and Ram Niwas have come up in appeal.

3. In brief, the facts of the prosecution case are that on 16-2-1990 Rampal and Subhash PWs residents of village Mundia Khera on their return journey from Narnaul dropped at village Dongra Aheer. After attending their work in that village, they proceeded to their native village Mundia Khera through Kacha path. When they reached near tubewell of Rohash at about 6.00/6.15 p.m. they were attracted by an alarm emanating from the side of that tubewell. They rushed to that place and found Rohtash accused, armed with bamboo dandas and Ram Niwas with Bankri, having fallen Indraj son of Ami Lal in front of the kothri of tubewell, were inflicting injuries on his person with their respective weapons. When these PWs intervened the accused stated that Indraj after consuming liquor had sold their entire land and ruined their reputation. Indraj became unconscious due to injuries. The two witnesses came to the village and informed Smt. Smarli, mother of Indraj deceased that Rohtash and Ram Niwas were giving beating to Indraj at the tubewell. Smt. Amarli replied that it was their family affair. Rampat PW came to know on 17-2-1990 that Indraj had succumbed to his injuries and that his dead body had been cremated. He tried to convene a panchayat but on the ground that it was a family affair among brothers, members of the brotherhood did not assemble. Then Rampat asked the Chowkidar to run across to the Police Station and lodge a report but he too declined for want of

a writing from the panchayat. Thereafter Rampat proceeded to the Police Station in order to lodge a report but met Sub Inspector Shishpal Singh at Bus Stand Kanina. The said Sub Inspector recorded his statement Ex.PD at 4.00 p.m. on 17-2-1990. Special report was delivered to the learned Ilaqa Magistrate at 6. 15 p.m. at Mohindergarh. The Sub Inspector after sending the ruqa to the Police Station, proceeded towards the spot. When he reached Bus Stand Mundia Khera, Sardara Chowkidar produced before him a 'Panchayat Nama'. On reaching the spot, he caused photographs to be taken. He lifted blood stained earth from two places and collected blood stained plaster from the wall of the kothri.One fellow of brown canvas shoe of left foot Ex. P11 which was stained with blood, was also seized from the spot. He prepared rough site plan Ex.PH of the place of occurrence.

4. On 18-2-1990 Sub Inspector seized bones and ashes of Indraj deceased from the cremation ground.

5. On 21-2-1990, he arrested the accused Rohtash and Ram Niwas along with two others. On interrogation, Rohtash accused made disclosure statement Ex.PG/ 1 and in pursuance thereof got pieces of bamboo ladder and pieces of Bankri Ex.P12 to Ex.P23 recovered which were seized vide recovery memo Ex.PG/2. Accused Kalia alias Randhir (acquitted) was also arrested by him on 12-3-1990.

6. After completion of the investigation and other formalities, all the five accused were arrayed for trial on such like allegations for the murder of Indraj.

7. Before the trial Court, in order to prove its above referred case, the prosecution examined five witnesses. Rampat and Subhash, the eye-witnesses, supported the version of the prosecution.

8. Rohtash and Ram Niwas accused when examined by the trial Court under Section 313, Code of Criminal Procedure came forth with the plea of denial simpliciter and false implication. Both of them contended that they have been falsely involved in this case by the police in collusion with Rampat and Subhash PWs. Statements of Satpal, Dharmbir and Randhir accused were not recorded as there was no evidence against them.

9. The accused-appellants, however, did not lead any evidence in defence despite being called upon to do so by the trial Court.

10. The trial Court believing the ocular evidence of Rampat and Subhash, eye witnesses, with the other corroborative evidence convicted and sentenced the appellants as referred to above. However, as mentioned earlier, Sat Pal, Dharmbir and Kalia co-accused were acquitted.

11. We have heard the learned counsel for the parties besides perusing the record.

12. There is considerable force in the contention of Mr. R. S. Cheema, learned Senior Counsel for the apellants that Rampat and Subhash PWs had not seen the occurrence and that Rampat PW who was the uncle of Subhash PW had falsely involved the accused on account of long standing enmity between him and the two accused. In order to buttress his argument, he has drawn our attention towards the following facts which emerge from the prosecution evidence :-

(i) Conduct of the PWs in following a Kacha path from Dongra Aheer to Mundia Khera;

(ii) Delay in lodging the First Information Report;

(iii) So called incrimination material including one fellow of shoe Ex.P11, pieces of ladder and pieces of Bankri Ex. P2 to Ex.P23 having not been connected with the deceased and accused;

(iv) In the absence of medical evidence cause of death of Indraj could not be ascertained;

(v ) Independent witnesses though available having not been examined at the trial;

(vi) Place of occurrence having not been fixed; and

(vii) long standing enmity between the accused and the eye-witnesses.

13. Now we proceed to surgically scrutnise the evidence on record pointwise :-

CONDUCT OF THE PWS.

Both Rampat and Subhash PWs in the opening line of their examinition-in-chief have stated that on 16-2-1990 they had left their house at Mundia-Khera at about 9.00 a.m. and came to Narnaul. After finishing their work they boarded a bus from Namaul and alighted at bus stand Dongra Ahir at 4 p.m. when cross examined Rampat PW has stated that on the day of occurrence he had gone to Narnaul at 9 a.m. Subhash had also gone there to see his brother who was running a shop there. At Dongra Ahir they had contacted Nathu mechanic, whose house is situated in the heart of the village abadi, in order to engage him for construction of his tubewell. But Subhash PW has not corroborated this part of his testimony. Nathu mechanic has neither been cited as a witness nor examined at the trial in order to lend support to this, witness on this point. On further cross-examination Rampat PW admitted that there was no field of Rohtash in between the bus stand Dongra Ahir and the house of Nathu mechanic. It has also been admitted by him that village Dongra Ahir is at a distance of 11/2 kilometer from the place of occurrence whereas village Mundia Khera is two kilometers from village Dongra Ahir. The conduct of these witnesses in not going to their village direct but alighting at village Dongra Ahir and instead of following regular path, having adopted a kaccha path, is not free from doubt. Admittedly, on the way from bus stand Dongra Ahir to the house of Nathu mechanic the fields of the accused do not fall. There is no evidence on record to show that the tubewell of Rohtash accused fell on the way from the abadi of village Dongra Ahir to village Mundia Khera. Such conduct of the PWs renders their testimony doubtful.

DELAY IN LODGING THE FIR

Admittedly, the occurrence had taken place near the tubewell of Rohtash accused in the area of village Mundia Khera within the jurisdiction of Police Station, Kaniana at 6.00/6.15 p.m. on 16-2-1990. Police Station Kanina is at a distance of 18 kilometers from village Mundia Khera. After allegedly having seen the occurrence the two eye-witnesses had gone to village Mundia Khera. There they had narrated the occurrence to the mother of Indraj deceased and Rohtash accused and thereafter returned back to their houses without informing the Sarpanch, Lamberdar, Chawkidar or any other respectables of the village. None of them had gone to the Police Station to lodge a report. Matter does not rest here. Next morning i.e. on 17-2- 1990 they had come to know that Indraj had succumbed to his injuries and had been cremated. But even then none of them had run across to the Police Station to lodge a report through-out the day and it was only at 4 p.m., that Rampat made a statement before Sub Inspector/Station House Officer Shishpal Singh PW 5 at Bus Stand Kanjna. Rampat has put forward a story explaining the delay. According to him he contacted the Sarpanch, Chowkidar and other residents of the village and had narrated the occurrence to them but none of them had acceded to his request to go to the Police Station. This is no explanation at all. It is not understood as to who had stopped either of them to go to the Police Station and lodge a First Information Report. The delay having thus remained unexplained the possibility of the two PWs having spun out a false story involving the accused canot be ruled out.

INCRIMINATING MATERIAL

Sub Inspector Shishpah Singh had lifted blood stained fellow of the shoe Ex.P-11 from the place of occurrence. It was sent to Forensic Science Laboratory, Madhuban where on examination, vide report Ex.PJ/ 1, it was found to be stained with human blood. This piece of evidence does not help the prosecution firstly, because perusal of report

Ex.PJ shows that the colour of this fellow of the shoe was brown whereas according to Rampat who had allegedly attested recovery memo Ex.PE, one fellow of the shoe of white colour had been seized from the spot. Moreover, although it has been alleged on behalf of the prosecution that this fellow of the shoe belonged to Indraj but no evidence has been led to connect it with the deceased. Therefore, this piece of evidence also pales into insignificance. After the arrest of Rohtash accused on 21-2-1990 he was allegedly interrogated by Sub Inspector Shishpal Singh whereupon he had made disclosure statement Ex.PG/ 1 and in pursuance thereof had got pieces of ladder and of Bankri Ex.P-12 to Ex.P-23, recovered. These articles having been found stained with blood were sent to Serology wing of Forensic Science Laboratory, Madhuban where on examination it was found that the material thereupon had disintegrated and, therefore, these articles could not be proved to be the weapons of offence. Consequently, these so-called incriminating articles also do not in any way help the prosecution.

MEDICAL EVIDENCE :

Admittedly, Indraj was neither medicolegally examined when alive not autopsy was conducted on his dead body. The bones and ashes which were collected by Sub Inspector/Station House Officer, Shishpal Singh from the cremation ground on 18-2-1990 were sent to Forensic Laboratory, Madhuban, where after examination report was returned vide ExPJ :

"No opinion regarding origin of bones in Exhibit 3(bones and ash) could be given as the bones were too fragmentary."

Thus, even the bones and ashes have not been connected with the deceased. This piece of evidence also does not lend support to the prosecution version.

INDEPENDENT WITNESS NOT EXAMINED.

Just after the occurrence the two eye witnesses Rampat and Subhash had gone to the village abadi and had narrated the occurrence to Smt. Amarli mother of Indraj deceased and Rohtash accused. PW 9 Sub Inspector Shishpal Singh admitted in his cross-examination that though he had interrogated her but did not record her statement under Section 161, Code of Criminal Procedure. It is the prosecution case that the two eye-witnesses had met Nathu mechanic in the abadi of village Dongra Aheer on the way to their native village Mudia Khera. Rampat has stated that on 17-2-1990 he had contacted Duli Chand Sarpanch and Chowkidar Sardara and narrated the occurrence to them and had requested them to report the matter to the police. Rampat PW 3 also informed Lamberdars Gurdayal and Umrao Singh and other respectables of the village regarding the occurrence. He had admitted that 10-15 persons were availble on the power house whereas two sadhus permanently resided in Geeta Bhawan Mandir. Both these buildings were situated in the close proximity of the place of occurrence. Fields of Ram Parshad, Tula Ram, Jugla Ram and Bastri Ram were also so situated but strangely enough no person out of Smt. Amarli, Nathu mechanic, Gurdayal and Umrao Singh Lamberdars has been cited as a witness nor examined at the trial. Duli Chand Sarpanch and Sardara Chowkidar though cited as prosecution witnesses yet were not examined as such. The Investigating Officer also did not make any effort to summon and join in the investigation any person from the above said fields or power house or Geeta Bhawan Mandir. PWs Luxmi Chand, Duli Chand Sarpanch, Pappu, Ved Parkash, Chhotte Lal, Sardara Chowkidar, Balwan Singh and Meena Ram were given up as having been won over.

Under the above circumstances, there being no corroborative evidence to the testimony of Rampat and Subhash PWs, their evidence cannot be relied upon.

PLACE OF OCCURRENCE NOT FIXED.

Station House Officer Shishpal Singh had inspected the spot on 17-2-1990 and had lifted blood stained earth from two places and

scratched and seized blood stained plaster from the wall of the Cothri. Vide report Ex.PJ / 1 of the Serologist, the material on the earth was found to have been disintegrated whereas the blood stained plaster was not sent to the Laboratory. Under these circumstances, it cannot be said that the prosecution has fixed the place of occurrence by leading cogent, convicing and reliable evidence.

ENMITY

Combined reading of the statements of the two witnesses and the documents Ex.D1 to Ex.D5 and Ex.DA, it is established that there was long standing enmity between the two eye-witnesses and the accused. From the statements of PWs Rampat and Subhash it has emerged that Chet Ram had two sons- Hem Karan and Budh Ram. Sohan is the son of Budh Ram, Balbir is the son of Sohan and Pappu is the son of Balbir. Hem Karan has two sons Rampat PW 3 and Ram Parshad. Luxmi Chand Panch and Dharamvir are the sons of Rampat.

Dharamvir is married to the daughter of Ram Chand, Station House Officer, Gohana. Ram Parshad has three sons Ram Pal Singh (Ex. Sarpanch), Subhash PW 4 and one Ramesh.

14. Ex.D3 is the copy of application moved by Ram Niwas accused to the Sub Divisional Magistrate, Mohindergarh, seeking an enquiry against Ram Pal Singh Sarpanch. It is dated 13-10-1986.

15. Ex.D2 is an application signed by Ram Niwas Panch (accused), Ram Sarup Panch and Vikram Singh Panch. It is addressed to S.D.M. Mohindergarh. It is alleged therein that the Sarpanch had sold an electric motor installed on the school well and embezzled the amount; that he had also falsely shown the earth work to have been done and embezzled the amount; that ever-since he became Sarpanch the Panchayat amount had remained cash-in-hand; and further that he had sold the trees owned by the Panchayat and embezzled the sale proceeds thereof amounting to Rs. 8000/- or Rs. 9000 / -.

16. Ex. D4 is the copy of the order of Deputy Commissioner, Narnaul, dated 27-1l987. Vide this order Ram Pal Singh Sarpanch had been suspended under Section 102(2) of the Gram Panchayat Act for his having committed following acts :-

(i) He spent Rs. 16,000/- on the construction of Panchayat Ghar without his having an estimate prepared from the trained Engineer;

(ii) that he auctioned the trees belonging to Gram Panchayat without obtaining prior sanction from the District and Forests Authority in flagrant disregard of the rules;

(iii) that he had spent Rs. 3000/- on earth work without. getting any prior estimate prepared; and

(iv) that he had spent Rs. 3460,"- on the boaring of the tubewell without getting prior estimate prepared.

17. It was notified to Ram Pal singh that in case the above said charges were proved against him, he will be removed from the office of the Sarpanch.

18. Ex.D5 is the copy of the order dated 27-1-1987 passed by the Deputy Commissioner, Narnaul, thereby removing Ram Pal Singh from the office of Sarpanch pending the departmental enquiry against him.

19. Ex,DA is the copy of First Information Report No. 48 registered at the instance of Subhash Chand PW 4 against Ram Niwas etc. accused under Sections 307/342 read with Section 34 of the Indian Penal Code.

20. Ex.D1 is the copy of the judgment dated 29-10-1987 passed by Sub-Divisional Magistrate, Gohana in State v. Ram Pal, FIR No. 46 of dated 25-2-1917 under section 309, Indian Panal Code, Police Station, Gohana. vide this judgment Ram Pal, brother PW 3 Subhash PW-4 and nephew of Rampat PW 3 was convicted under Section 309, Indian Penal Code and was sentenced to pay a fine of Rs. 100 / -.

21. In his cross-examination PW-4 Subhash has stated that his brother Ram Pal

was poisoned by Ram Niwas accused. He has admitted that he had got a case registered against Ram Niwas accused and others alleging that they had poisoned Ram Pal. He has also admitted that he and his brother Ram Pal had opened a shop under the name and style of M/s. Ram Pal and Brothers at Narmaul and Ateli for selling sprinkler sets; that firm was in arrears of sales tax but denied that Ram Niwas was helping the Government in effecting the recovery of the sales tax arrears due to his firm.

22. From the above documentary evidence and admissions on the part of Subhash PW 4 it is proved on record that the enmity between the accused and the complainant party is existing right from the year 1986. Therefore, the two witnesses certainly had a motive to falsely involve the accused in this case.

23. It has emerged from the cross-examination of Rampat PW 3 that Rohtash had four sisters one of whom had died. After the death of his father, who died before the occurrence, his land was inherited by his three daughters and two sons namely Rohtash and Indraj. All the three sisters of Rohtash had transferred their share of the land in favour of Rohtash through the consent decree. Indraj deceased had sold his land measuring four kanals to Rohtash for a sale consideration of Rs. 25000/-. Under such circumstances, the part of the evidence of the two eye-witnesses to the effect that on their enquiry both the accused had stated that Indraj had sold all his land under the influence of liquor and had ruined their reputation is not acceptable and thus the motive as suggested by the prosecution for the accused to have committed the murder of Indraj has also not been proved on the record.

24. Seen from any angle, we find that there being no other corroborative evidence in this case, there is no option but to hold that the prosecution had miserably failed to prove the charge of murder of Indraj against the accused beyond reasonable doubt. Consequently, the order of conviction and the sentence passed by the trial Court being not sustainable, is hereby set aside by accepting the appeal and acquitting the appellants. They be set at liberty forthwith, if not required in any other case.

Appeal Allowed