Kanwar Singh vs State of Haryana and Others

Sabina, J.—Respondents Nos. 2 to 5 were tried for an offence u/s 302, 120-B, 201/34 of the Indian Penal Code for short- "IPC") and 25(1)(3) of the Arms Act by the Additional Sessions Judge, Jhajjar in FIR No. 479 dated 20.10.2000 registered at Police Station, Jhajjar. Vide judgment dated 28.2.2006 passed by Additional Sessions Judge, Jhajjar, respondents Nos. 2 to 5 are acquitted of the charge framed against them. Aggrieved by the same, complainant-petitioner-Kanwar Singh has filed the present petition.

Prosecution case, as noticed by the trial court in para 2 of its judgment is as under:

The facts of the prosecution case, in brief, as reveals from the report u/s 173 Cr.P.C. are as follows:

That on 20.10.2000, when SI/SHO Mahender Singh along with ASI Ram Kishan, HC Braham Sarup No. 13, Constable Ramesh Kumar 382 and Constable Sanjeev Kumar No. 358 was present at Silani gate in connection with general patrolling in Govt. Jeep bearing registration No. HR-14A-0379, there Hoshiar Singh, SI, Incharge, CIA Jhajjar along with constable Pardeep No. 489, Constable Ram Bhagat No. 674 came there and when he was talking with them, there he got a secret information that Raj Kumar son of Balbir Singh, Jat, resident of Seriya, Police Station Beri, who had abducted Babli daughter of Sant Ram son of Ichha Ram, Jat, of Seriya, in the year of 1987 and a criminal case in this regard bearing FIR No. 132/87, under Sections 363, 366, 376 IPC was got registered by Mahabir son of Ichha Ram; that Raj Kumar was put to trial and was convicted and after serving the sentence, he again tried to meet Babli, upon which Mahabir and Sant Ram in connivance with his nephews Hariom and his elder brother Fauji sons of Randhir Singh resident of Siwana, hatched a conspiracy to get eliminated Raj Kumar and first of all, they gave an amount of Rs. 40000/ - to a criminal Babbar of village Siwana to get eliminated said Raj Kumar, but said Babbar did not oblige them. Then, Sant Ram, Mahabir, Hari Om and Fauji contacted Jagdish of village Siwana, who was a man of bad antecedents and had also committed several murders; that they hatched up a conspiracy in this regard; that Jagdish with the help of Naresh had eliminated Raj Kumar in the year 1997 in the deserted area of village Dawala and then after chopping-off his neck, showed the same to Hariom, Fauji, Sant Ram and Mahabir, obtained Rs. 70000/ - from them and then concealed the dead-body and neck and if Jagdish, Naresh, Sant Ram and Mahabir are arrested and interrogated, then the truth with regard to murder of Raj Kumar can be elucidated; that this information was from a reliable source and so a ruqa in this context was sent to police station for registration of the present case and it is on the basis of the same, the present case was got registered. Formal investigation was started; that accused Jagdish and Naresh were arrested on the same day i.e. 20.10.2000 and one country made pistol along with one alive cartridge of .315 bore were recovered from accused Jagdish and Section 25, 54, 59 of Arms Act was added in this case; that on 20.10.2000 itself on interrogation accused Jagdish and Naresh made disclosure statements with regard to commission of this occurrence in presence of PW Kanwar Singh and then on 21.10.2000 in furtherance of their disclosure statements, they got recovered skeleton of deceased Raj Kumar from inside a well wrapped in a plastic bag along with an underwear of red colour and eight bricks. The skeleton was without skull and same were duly taken into police possession vide recovery memo and the same were got post-mortemed, after conducting inquest report and FSL report was also obtained. Statements etc. of PWs were recorded.

Learned Counsel for the petitioner has submitted that the prosecution had been successful in proving its case. Inadvertently, Investigating Officer, while appearing in the witness box, had deposed that recovery was effected on 21.10.2000 whereas, in fact, it had been effected on 20.10.2000.

In the present case, respondents Nos. 2 and 5 were arrested on 20.10.2000 and their disclosure statement Ex. PC and Ex. PD respectively were recorded. Complainant-petitioner while appearing in the witness box as PW-1 and Sajjan Singh while appearing in the witness box as PW-2 had deposed that recovery in pursuance to the disclosure statements suffered by respondents Nos. 2 and 5 was effected on 20.10.2000. However, the Investigating Officer Mahender Singh while appearing in the witness box as PW-11 had deposed that the disclosure statements of respondents Nos. 2 and 5 were recorded on 20.10.2000. On 21.10.2000, the said respondents were produced in the court of area Magistrate and they were remanded to police custody up to 24.10.2000. Thereafter they got the skeleton of the deceased recovered form the disclosed place. This discrepancy in the prosecution evidence is very material and has been rightly stated to be so by the learned trial court. Since two versions have come with regard to the recovery of the skeleton on the basis of disclosure statements suffered by respondents Nos. 2 and 5, the learned trial court had rightly held that versions favourable to the accused was required to be adopted.

So far as respondents Nos. 3 and 4 are concerned, they were arrested on 6.11.2000 and the disclosure statement, if any, suffered by them lost their value because the recovery of skeleton, in question, was effected much before their arrest.

As per petitioner while appearing in the witness box as PW-1 he had seen his brother Raj Kumar in the company of respondent Naresh on 6.7.1997 and he was wearing Kurta payjama and brown Chappal and blue tericot underwear having elastic. Learned trial court in this regard had rightly held that the petitioner never bothered to know about the whereabouts of his real brother-Raj Kumar till 20.10.2000. In fact none of the family members of the deceased made any effort to search for the deceased during the intervening period. Learned trial court has further rightly observed that the identification by the petitioner of the skeleton merely on the basis of the underwear could not be said to be proper identification in the eyes of law. The car used for commission of the alleged crime was also not recovered from the respondents. No sanction for launching of the prosecution for offence u/s 25 of the Arms Act were taken during investigation.

It has been held in Vasa Chandrasekhar Rao v. Ponna Satyanarayana 2000 (3) RCR 96 (SC) that in a case of circumstantial evidence, in order to establish the guilt of the accused, it was necessary to prove the circumstances fully and it was further held as under:

(i) Circumstances should be conclusive in nature.

(ii) All facts so established, should be consistent only with hypothesis of the guilt and inconsistent with innocence.

(iii) Circumstances should exclude the possibility of guilt of any person other than the accused.

(iv) In order to justify an inference of guilt, circumstances must be incompatible with innocence of accused.

(v) Cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offence reasonable doubt.

(vi) Where accused on being asked, offers no explanation or explanation is found to be false, then that itself forms an additional link in chain of circumstances.

The present case is based on circumstantial evidence Prosecution had failed to establish its case and complete the chain which would lead only to inference regarding the guilt of the accused and would negate the innocence of the accused or would exclude the possibility of guilt of any other person. The reasons given by the trial court while acquitting respondents Nos. 2 to 5 of the charges framed against them are sound reasons and do not call for any interference.

It has been held by Apex Court in Satyajit Banerjee v. State of West Bengal JT 2004 (10) (ST) 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional jurisdiction against the order of acquittal at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect or procedure or manifest error of law resulting in flagrant miscarriage of justice.

As per Section 401(3) of the Code of Criminal Procedure, a finding of acquittal cannot be converted into a finding of conviction by this Court. This case does not warrant a retrial. The impugned judgment dated 28.2. 2006 of the trial court, thus, calls for no interference.

Accordingly this petition is dismissed.