Madan Mohan @ David vs State of Haryana

M.L. Koul, J.

The appellant Madan Mohan @ David (in short the accused) and one Amar Nath faced a joint trial under Sections 302 and 201/34 of the Indian Penal Code before the Addl. Sessions Judge, Kurukshetra. On completion of trial, the accused Madan Lal was convicted for both the offences under Sections 302 and 201/34 IPC and sentenced to undergo life imprisonment with a fine of Rs. 1000/ under Section 302 IPC; in default of payment of fine to undergo further rigorous imprisonment for six months, under Section 201 IPC he has been sentenced to undergo one year''s rigorous imprisonment. Both the sentences have been directed to run concurrently.

The brief facts of the case as set out by the prosecution are that the accused Madan Mohan was employed in the Press Department of Kurukshetra University. The deceased Balinder Singh was a student of B.A. 3rd year and was occupying room No. C70 in Bhim Hostel of the said University. Ajmer Singh PW10 was occupying room No. C73 in the same Hostel, adjoining the room occupied by the deceased. On 4.5.1992 at about 7/8 PM the said Ajmer Singh (PW10) was sitting with the deceased in his room No. C70 when the accused Madan Mohan, Amar Nath alias Sethi and Charan Singh (absconder) cane to the room of the deceased and told him that they would help him in getting through the examination if Rs. 4000/ were paid to them. The deceased took the currency notes from his box and accompanied the accused on his bicycle. He did not return in the night and the next day as well. Next day Ajmer Singh (PW10) enquired from the accused Madan Mohan alias David regarding the whereabouts of the deceased and was told that the deceased had gone to his house as he was short of money. The father of the deceased namely Baru Ram (PW9) on 8.5.1992 came to Kurukshetra to see his son and not finding him there in the room, he made enquiries from Ajmer Singh (PW10) about his whereabouts. He told him as to what had transpired on 4.5.1992 between the deceased and the accused and between him and the accused Madan Mohan on 5.5.1992. The father of the deceased became suspicious and lodged the report Ex.PE with SI Bir Singh (PW16), Incharge Police Post Third Gate, Kurukshetra University at about 9 PM and expressed his suspicion against the said Amar Nath, the accused and the absconder of having abducted his son and killed him.

In this regard FIR No. 153 was registered and the investigation was taken up by PW16 in his hand and on completion of the investigation the accused were challaned in the competent court of law. After trial the accused Amar Nath was acquitted of the charge whereas accused Madan Mohan was convicted and sentenced as indicated above.

Heard Mr. K.S. Ahluwalia, counsel for the accused and Mr. N.K. Sanghi, Deputy Advocate General, Haryana, for the prosecution, also bestowed our thoughtful consideration over the record on the file.

As set out by the prosecution and believed by the trial court it is found that the accused Madan Mohan (David) learnt that the matter had been reported to the police, he went to Raghbir Singh (PW11) in the evening on 9.5.1992 and made an extra judicial confession before him saying that he along with accused Amar Nath alias Sethi and absconder Charan Singh took away the deceased by offering an allurement of help in the examination to him to Bhakra Canal, Narwana Branch and caused injuries on his body with a knife, tied his body with the bicycle with a rope and threw the dead body with the bicycle in the Canal. He further disclosed to him that the police had learnt about the murder of the deceased on 8.5.1992 and so they were after him.

Before the trial court, the prosecution examined 16 witnesses in support of its case but there is no direct evidence or eye witness to support the charge of murder. The entire case of the prosecution is founded on circumstantial evidence. The trial court acquitted accused Amar Nath who had been charged for the offence under Sections 302/34 and 201 IPC but had convicted the accused Madan Mohan for the said offences. Since the entire prosecution case is based on circumstantial evidence, it thus becomes necessary to refer to the principles which should guide the court in considering the conviction of the accused resting on the circumstantial evidence. It is the established cardinal principle of Criminal Jurisprudence that circumstantial evidence must be fully established to draw an inevitable conclusion of the guilt of the accused beyond any reasonable doubt and the facts so established should be consistent only with the hypothesis of the guilt of the accused, ruling out any hypothesis of innocence of the accused. There are catena of the rulings on this point from the Apex Court and the different High Courts of the country as well. We are motivated to make a reference to Mahmood v. State of Uttar Pradesh, A.I.R. 1976 Supreme Court 69, wherein their Lordships of the Supreme Court have authoritatively held that in a case dependent wholly on circumstantial evidence, the Court before recording a conviction on the basis therefor must be firmly satisfied

(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt;

(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and

(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him.

The three circumstances on the basis of which the accused has been convicted have to be considered. The first circumstance is that the deceased was last seen in the company of the accused, the acquitted accused Amar Nath and the absconder Charan Singh on 4.5.1992 at about 7/8 PM in his room in the Hostel wherefrom he left with them on his bicycle. The only evidence available in this regard is the statement of PW10 Ajmer Singh. He has deposed that on the fateful day the accused and his two companions who stayed in the room of the deceased in the Hostel for some time demanded Rs. 4000/ from him for getting his answer books corrected. On this he took away Rs. 4000/ from his box and went with them on his bicycle. This witness nowhere stated that any money was paid to the accused by the deceased in his presence and to which place they wanted him to accompany them so that his answer books could be corrected. There is no proof available on the file that the deceased was actually appearing those days in any examination and his roll number was issued by the College or the University.

No doubt PW2 Avtar Singh examined as a prosecution witness has proved the Hostel admission form of the deceased which is Ex.PB and as per that form the deceased was a student of the University for the year 199192 and was residing in Room No. C70. However, there is no proof available in any manner led by the prosecution to show that actually the deceased had to appear in some examination and therefore he was ready to pay bribe to the accused and his companions for getting his answer books corrected so as to declare him successful in the examination. No body, either the Principal, any staff member or the clerk of the College or University has been examined to show that actually the accused had appeared in some papers and had to appear in other papers with regard to which he was supposed to pay money to the accused so as to be declared successful in the examination. It looks amazing that the deceased left with the accused and his companions in the presence of PW10 with Rs. 4000/ on 4.5.1992 and did not return till 8.5.1992 when his father came to the hostel to enquire about his welfare but the witness till then did not reveal to anybody that the deceased was missing from the hostel and he went away with the accused and his companions with Rs. 4000/. He did not report the matter to the Warden or the Principal of the College and even did not venture to report the matter to the police personally or through the intervention of the Warden or the Principal of the College. Even the father of the deceased PW11 did not inform the Warden or the Principal that his son was missing from the hostel. In such circumstances the sole statement of PW10 with regard to the last seen of the deceased with the accused and his companions becomes doubtful and God knows as to what is the real story as to how he disappeared and may be PW10 in any manner might have conspired in the commission of the crime. In such circumstances, the circumstance of last seen is not proved and the statement of PW10 being shrouded with suspicion and skirmishes is not believable.

The second piece of the circumstantial evidence referred to by the trial court is relating to the extra judicial confession having been made by the accused before PW11 Raghbir Singh. It is contained in his statement that the accused made extra judicial confession before him on 9.5.1992 and told him that he along with his companions Amar Nath and Charan Singh on 4.5.1992 induced the deceased to accompany them and they had taken him to Narwana Branch of the Bhakra Canal with an intention to kill him. That after causing certain injuries with a knife on his body they tied his body with a bicycle with the help of a nylon rope and threw him along with the bicycle in the Canal. He further told him that on 8.5.1992 the police came to know about the murder and therefore were after him. The witness further states that as it was 8/9 PM so he made the accused to stay with him for the night and the next day produced him before the police. According to him the accused was wearing stained clothes and the witness went to his house to bring another set of the clothes for him and those clothes were produced before the police who seized it.

We are afraid that the accused could repose so much confidence in a person who was living 40 Kms away from the University and open his breast to him when he did not bear any blood relationship with him or was in any manner having close relationship with him. The instances given by the witness that the accused and his father being the poor people were borrowing money from him is of no consequence when no proof is available when any money was borrowed by him or his father from the witness and when it was returned. He further did not disclose as to how many times the money was borrowed and what were the occasions for that.

It is often found and held that extra judicial confession is made by an accused to a person who is either related or bears a sufficient confidence in the mind of the accused that he would help him and thus he opens his mind to him to lighten himself with regard to the commission of crime. The accused in no manner bears any relationship with PW11 or was so thick to him that he could reveal commission of murder to him knowing fully well that such disclosures would make him to face incarceration and conviction. The learned trial court has tried to overrule all the rulings referred to by the counsel for the accused saying that these have no bearing on the merits of the case without discussing these rulings visavis the merits of the case. So there is no bona fide evidence collected by the prosecution to show and prove that these two above mentioned circumstances were at all proved against the accused. It is stated by PW11 that he kept the accused in his house for the night and got his clothes changed which were stained. It is not explained as to what kind of stains were there either of blood, mud or some thing else. The clothes were kept by him for the night and were produced before the police next day. In such circumstances it is not proved that the blood stained clothes were really recovered by the police from the accused. There is no body to corroborate that actually the accused made his confession before the witness that he had killed the deceased and thrown his dead body in the Canal. This witness is not otherwise trustworthy for the fact that the father of the deceased has stated that the accused was seen by him on 9.5.1992 with the police near the 3rd Gate of the University. As such a doubt is raised as to whether the socalled extra judicial confession was made by the accused in police custody on 9.5.1992 or before the witness independently. It appears that after the accused was made by the police to make a disclosure statement with regard to the recovery of the dead body and they therefore in order to strengthen it introduced the extra judicial confession and made PW11 a witness to that statement. Hence, this circumstance is also not proved and fails for the reasons quoted above.

As regards the recovery of the clothes seized from the accused the Serologist has reported that these were stained with human blood but as the group of the blood is not given, therefore same cannot be positively be connected with the deceased. The case is based on the circumstantial evidence and from the evidence of the investigating officer or from the report, it nowhere transpires as to what were the dimensions of the stains of the blood. The view that small blood stains on the clothes of a person were there, may be of his own blood. In a case based on circumstantial evidence, the evidence about the blood group is the only conclusive evidence to connect the accused with the commission of crime. The blood group of the deceased being absent and therefore in our opinion even this is not a circumstance on the basis of which any inference could be drawn.

The last circumstance is the medical evidence recorded in the case and to have been proved by Dr. P.K. Soni PW6 who deposed that he conducted the post mortem examination upon the dead body. According to him the dead body was in a stage of putrefaction having greenish edges over the body. Superficial skin was peeled off at many places. Whole of the body was swollen including lips, scrotum and penis. Once the doctor has stated that the body was totally swollen and it was at the stage of putrefaction, it does not appeal to the judicial mind to believe that the father of the deceased could identify the deadbody because nowhere he has stated that on the basis of any particular scar mark, hair, teeth or anything else he identified the body but has simply stated that this is the dead body of his son. The deadbody has remained in the water for more than a week and putrefaction had taken place in the body.

It is proved that the death of the deceased was homicidal and not accidental but it is to be seen whether the dead body which had come to the stage of putrefaction, could be identified by the father of the deceased especially when the body was swollen and mutilated due to the injuries sustained by the deceased on his body. No doubt, there were as many as five injuries on the body of the deceased and the cause of death given by the doctor in his opinion was because of "shock and haemorrhage" due to the injuries sustained by the deceased on his heart which were antemortem in nature and sufficient to cause death in the ordinary course of life. The injuries found by the doctor are quoted below :

There was an incised wound on front of left side of chest of size 3 cm x 1 cm elliptical in shape. Margins were clear and regular. On further dissection the direction of the wound was backward and medially cutting the underlying structure and going upto heart. Pericardial cavity was full of blood, and left ventricle of heart was injured. The wound was present in 3rd inter costal space near midclavical line. Clotted blood was present in shaft tissues.

There was an incised wound 2 cm x 1/2 cm elliptical was present on left shoulder on anterior aspect.

An incised wound 2.5 cm x 1/2 cm elliptical on right partial zone of the scalp.

There was an incised wound on left lower side of abdomen of size 1.5 cm x 1 cm. Elliptical just above iliac crest.

An incised wound on right hand on palmer aspect 2 cm x 1/2 cm. Clotted blood was present in shaft tissues.

In this regard it becomes essential to ascertain whether the accused actually caused the death of the deceased by causing injuries on his heart with a knife seized in the case.

The purpose of mentioning all this is that the investigating officer in the mistaken zeal for the success of his case was prone to resort to "padding" and suppression or distortion of facts. It is in this background of suspicion that this piece of circumstantial evidence collected by him had to be evaluated.

Once the body had reached to the stage of putrefaction and it was all around swollen, it was the duty of the doctor to have asked the father of the deceased as to how he identified the dead body as of his son. whether from any scar, colour of hair, condition of teeth, recent or old fractures. But none of such identification was provided by the father of the deceased who identified the dead body.

In this regard it is pertinent to mention that the recovery of the weapon has been effected by the police officer some days after the deadbody was recovered from the Canal on the extra judicial confession of the accused and the disclosure statement made by him (Ex.PG) on 10.5.1992 that he inflicted knife blows on the body of the deceased Balinder when his companions Amar Nath and Charan Singh put a nylon rope of yellow colour around the neck of the deceased and both of them pulled the same. Then after removing the clothes from the deadbody of Balinder Rs. 4000/ were taken out from his pant and thereafter the dead body was tied with the rope with the bicycle and thrown in the Canal. Out of Rs. 4000/ which were taken away from the body of the deceased Rs. 700/ were given to Charan Singh, Rs. 1300/ to Amar Nath whereas Rs. 2000/ were kept by the accused. According to him Amar Nath had taken away the knife and the clothes of Balinder. It is strange enough that although Amar Nath was arrested, neither the knife nor the clothes were recovered from his possession. The trial court believed the recovery of knife and the money from the possession of the accused but on the very evidence which according to him was not sufficient to prove that Rs. 1300/ were recovered at the instance of accused Amar Nath, he was not convicted rather was acquitted. On the same evidence he has taken the two views. On the one hand he has accepted the prosecution story that Rs. 2000/ were recovered from the possession of the accused and on the other hand he disbelieved the recovery from Amar Nfoath for the fact that there is no corroborative evidence to connect him with the commission of the crime. The disclosure statement made by the accused is totally unreliable for the fact that it is in the form of confession to have been made by the accused before a police officer and thus it is not admissible in evidence for the fact that it describes the whole sequence of the case as to how the deceased was killed.

Although the disclosure statement with regard to the use of knife has been made by the deceased on 10.5.1992 when the dead body was recovered. However, one fails to understand as to why the police did not recover the same till 15.5.1992. Thus it appears that there are interpolations made by the prosecution in this regard and have managed to show that the knife and the money was recovered at the instance of the accused. No person from the locality was associated at the time of recovery of money and the weapon of offence from the deceased although 20 people had assembled on the spot. The investigating officer waited for 45 minutes near the house of the accused and had brought two witnesses with him to conduct the search. According to PW14 Man Singh only knife has been recovered from the possession of the accused and not the money. The trial court has justified this discrepancy saying that there is a possibility that the witness might have forgotten his original statement and could not remember as to what the said earlier and therefore he did not disbelieve the statement.

Thus in view of the above discussion it is found that the prosecution failed to establish any circumstance of the case individually or jointly as well to establish that accused and the accused alone committed the murder of the deceased and on all hypothesis the guilt of the accused is established beyond shadow of doubt and there is no room to rule out that the he was innocent. Thus the prosecution has failed to establish the case against the accused. He is, therefore, acquitted of the charge framed against him.