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Judgment
M. Jeyapaul, J.—The sole accused Manmohan Kumar @ Manu, who was convicted for an offence u/s 302 of the Indian Penal Code (in short ''IPC'') and was sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/-, and in default, to undergo further period of two months rigorous imprisonment, has preferred Crl. Appeal No. 1079-DB of 2007. In the very same case, three other accused, namely, Manish Kumar @ Phirki, Sandip Kumar @ Ghora, and Bhim Sen @ Prema were acquitted by the trial Court. Therefore, the State of Punjab, aggrieved by the order of acquittal passed by the trial Court, has preferred Crl. Appeal No. 494-DB of 2008. The complainant Rajesh Mahajan has also preferred Crl. Revision No. 1109 of 2008, aggrieved by the order of acquittal passed by the trial Court as against the aforesaid three accused.
P.W. 6 Rajesh Mahajan, who was none other than the brother of the deceased Raj Kumar, lodged a complaint Ex. PE with P.W. 8 SI Natha Singh. The brief text of the complaint is as follows:
The deceased Raj Kumar Mahajan was his elder brother and Raj Rani was his sister. Raj Kumar Mahajan was running a ready made cloth shop in Landa Bazar, Amritsar, opposite Railway Station. He had already divorced his first wife Babli. He got a son and a daughter through her. Both the children of Raj Kumar Mahajan resided with his sister Raj Rani, resident of Gali Masitwali, Islamabad, Amritsar. Raj Kumar Mahajan used to visit the house of Raj Rani. Raj Kumar got married with one Aarti about one year prior to the occurrence. She also left for her parental home having picked up a quarrel with Raj Kumar. At about 1:00 A.M. on 9.10.2003, Neeru, the daughter of Raj Rani (P.W. 1) came to his house and informed him that some unknown persons killed Raj Kumar by stabbing him in his chest in the street in front of her house. He proceeded to the place of occurrence and found the dead body of his brother Raj Kumar lying in the street in a pool of blood. His sister Raj Rani, nephew Rahul and Ex-Councillor Kailash were present near the dead body. He inquired as to how the occurrence took place. He was informed that nobody knew about the occurrence. But there was a quarrel between his brother Raj Kumar and Manu, Prema, Firki, and Ghora, who also worked at Landa Bazar. The above boys have killed his brother Raj Kumar by stabbing him due to old enmity. He was confident that the occurrence was only committed by them or by the family member of his brother''s wife.
b) Based on the aforesaid complaint given by P.W. 6 Rajesh Mahajan P.W. 8 SI Natha Singh attached to Islamabad police station, Amritsar, sent ruqua for registration of the case. ASI Savinder Singh registered formal First Information Report Ex. PC. P.W. 8 proceeded to the scene of occurrence and got the dead body identified by Rajesh Mahajan (P.W. 6), Raj Rani (P.W. 1), and Rahul son of the said Raj Rani. P.W. 8 collected the blood stained earth from the spot and converted the same into a parcel and sealed the same. He prepared inquest report Ex. PQ. He also drew rough sketch Ex. PR. He recorded the statement of witnesses and sent the dead body for post mortem examination. P.W. 2 Dr. Shilekh Mittal conducted post mortem examination on the dead body of Raj Kumar on 9.10.2003. at about 12:40 P.M. He found the following injuries on the dead body of Raj Kumar:
1) An elptical shaped incised stab wound 1.5 x 08 cms vertically placed just above the suprasternal notch. Clotted blood was present and muscle deep.
2) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of the chest, obliquely placed, 6 cms above and medial to nipple at 1 O'' clock position. Clotted blood was present.
3) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of the chest, obliquely placed, 6 cms above and medial to right nipple at 2 O'' clock position. Clotted blood was present.
4) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of chest, obliquely placed 5.5 cms medial to nipple at 3 O'' clock position. Clotted blood was present.
5) An elptical shaped incised stab wound 2.5 x 2 cms was present on the right anterior axillary line 8.5 cms below tip of axilla transversely placed. Clotted blood was present.
6) An elptical shaped incised stab wound 3 x 1 cms was present on the right lateral side of chest, 3 cms below injury No. 5. Clotted blood was present, obliquely placed.
7) An elptical shaped incised stab wound 3 x 2 cms was present on the right lateral side of chest, 6 cms below injury No. 6 obliquely placed. Clotted blood was present.
8) An elptical shaped incised stab wound 3 x 1 cms was present on the lateral aspect of chest, 1 cm below injury No. 7, obliquely placed. Clotted blood was present.
9) An elptical shaped incised stab wound 3 x 01 cms was present on the right lateral aspect of chest, 0.5 cms below injury No. 8, obliquely placed. Clotted blood was present.
10) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of chest 0.4 cm below injury No. 9, obliquely placed. Clotted blood was present.
11) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of lower chest, 1.2 cm below injury No. 10 transversely placed. Clotted blood was present.
12) An elptical shaped incised stab wound 3 x 1.5 cms was present on the right side of abdomen in hypochondrium region 1.5 cm below and lateral to injury No. 11 transversely placed. Clotted blood was present.
13) An elptical shaped incised stab wound 3 x 1 cm was present on the right side of abdomen in hypochondrium region 0.3 cm below injury No. 12, transversely placed. Clotted blood was present.
14) An elptical shaped incised stab wound 3 x 1.2 cm was present on the right side of abdomen in hypochondrium region 1.5 cm below injury No. 13. Obliquely placed. Clotted blood was present.
15) An elptical shaped incised stab wound 3 x 1 cm was present on the right side of abdomen in hypochondrium region 1.5 cm below injury No. 14. Obliquely placed. Clotted blood was present.
16) An elptical shaped incised stab wound 3 x 1.5 cm was present on the right side of abdomen in hypochondrium region 3 cms below and medial to injury No. 11. Obliquely placed. Clotted blood was present.
17) An elptical shaped incised stab wound 3 x 1cm was present on the right side of abdomen in hypochondrium region 2 cm below injury No. 16. Obliquely placed. Clotted blood was present.
18) An elptical shaped incised stab wound 3 x 1cm was present on the right side of abdomen 1.5 cm medial to injury No. 15. Obliquely placed. Clotted blood was present.
19) An elptical shaped incised stab wound 3 x 1cm was present on the front of right side of abdomen 11 cm above and lateral of umblicus at 11 O'' clock position. Obliquely placed. Clotted blood was present.
20) An elptical shaped incised stab wound 3 x 1cm was present on the front of right side of abdomen, 1 cm lateral to injury No. 19. Obliquely placed. Clotted blood was present.
21) An elptical shaped incised stab wound 3 x 1cm was present on the right side of abdomen 1 cm below injury No. 20. Obliquely placed. Clotted blood was present.
22) An elptical shaped incised stab wound 3 x 1cm was present on the right side of abdomen 8 cm above and lateral to umblicus at 10 O'' clock position. Obliquely placed. Clotted blood was present.
23) An elptical shaped incised stab wound 3 x 1cm was present on the abdomen 0.8 cm below injury No. 22. Obliquely placed. Clotted blood was present.
24) An elptical shaped incised stab wound 4 x 1cm was present on right side of abdomen 4 cm above umblicus at 12 O'' clock position. Obliquely placed. Clotted blood was present.
25) An elptical shaped incised stab wound 1 x 0.4 cm was present on the front of right side of abdomen in right iliac region 6 cm above and medial to anterior superior iliac spine at 2 O'' clock position. Obliquely placed. Clotted blood was present.
26) An incised wound 4 x 1cm was present on the back of left side of forearm. 1 cm above wrist. Obliquely placed. Clotted blood was present.
27) An incised wound 2 x 0.5 cm was present on the back of left forearm. 0.2 cm above injury No. 6. Obliquely placed. Clotted blood was present.
28) An incised wound 1 x 0.2 cm was present on the left side of neck 1.5 cm below left angle of mandible. Obliquely placed. Clotted blood was present.
29) An incised wound 1.2 x 0.2 cm was present on the left side of neck 0.5 cm below injury No. 20. Obliquely placed. Clotted blood was present.
30) An incised wound 1 x 0.4 cm was present on the left side of neck 0.2 cm lateral to injury No. 29. Obliquely placed. Clotted blood was present.
31) An incised wound 1 x 0.3 cm was present on the left side of neck 0.2 cm below injury No. 30. Obliquely placed. Clotted blood was present.
32) An incised wound 1 x 0.3 cm was present on the left side of neck 1.7 cm below injury No. 29. Obliquely placed. Clotted blood was present.
33) An incised wound 0.5 x 0.2 cm was present on the left side of neck 0.5 cm lateral to injury No. 32. Obliquely placed. Clotted blood was present.
34) An incised wound 1 x 0.5 cm was present on the left lateral side of the neck 3 cm below and posterior to left angle of mandible. Obliquely placed. Clotted blood was present.
35) An incised wound 1 x 0.2 cm was present on the back of left forearm. 8 cm below elbow prominenes. Obliquely placed. Clotted blood was present.
36) An incised wound 4 x 2 cm was present on the front of right forearm 10 cm proximal to wrist. Obliquely placed. Clotted blood was present.
37) An incised wound 1.8 x 4 cm was present on the back of the neck. 2 cm below posterior hairline. Obliquely placed. Clotted blood was present.
38) An incised wound 3 x 1cm was present on the back of neck 2 cm below posterior hair line. Obliquely placed. Clotted blood was present.
39) An incised wound 0.8 x 0.3 cm was present on the back of neck 5.5 cm below posterior hair line. Obliquely placed. Clotted blood was present.
40) An incised wound 2.1 cm was present on the back of neck and head on the posterior hair line. Obliquely placed. Clotted blood was present.
41) 3 x 1.5 cm incised wound was present on the back of neck and head on the posterior hair line, obliquely placed 2 cm towards right from injury No. 40. Clotted blood was present.
42) An incised wound 3 x 0.5 cm was present on the back of neck and head on posterior hair line 0.2 cm towards right from injury No. 41 obliquely placed, clotted blood was present.
43) A reddish brown abrasion 1.5 x 0.5 cm was present on the left side of forehead 1 cm above left eye brow.
44) A reddish brown abrasion 1 x 0.3 cm was present on the left side of forehead 1.5 cm above injury No. 43.
45) A reddish brown abrasion 1 x 0.5 cm was present on the left side of forehead 1 cm medial to injury No. 44.
46) A reddish brown abrasion 1 x 0.3 cm was present on the left side of forehead 2 cm above and medial to injury No. 45.
All the injuries were found to be ante mortem in nature. He opined that the deceased had died due to hemorrhage and shock on account of the impact of the injuries No. 2, 3, 7, 8, 9, 10, 4, 12, 13, 14, 15, and 18, which was sufficient to cause death in the ordinary course of nature. The death would have occurred within 12 hours prior to the post mortem examination.
c) On 9.10.2003 itself, P.W. 8 arrested both the accused, i.e., Manmohan Kumar @ Manu and Manish Kumar @ Phirki. The houses of both the accused were raided and their wearing apparels, namely, shirts and vests were recovered under memo Ex. PX. On the same day, the wearing apparels found on the dead body were produced by Head Constable Balwant Singh (P.W. 7).
d) On 10.10.2003, P.W. 8 recorded the statement of witnesses. He produced those accused in the Court and obtained their police custody. On 11.10.2003, he separately interrogated accused Manmohan Kumar @ Manu and accused Manish Kumar @ Phirki and recorded their discovery statements Ex. PJ and Ex. PK. The daggers from the bushes identified by those two accused, based on their discovery statements, were recovered under relevant memo Ex. PM. During investigation, he made inquiries from the shopkeeper Kamal Sood (P.W. 3). His shop was identified by those accused. The statement of Kamal Sood (P.W. 3) was recorded by P.W. 8. P.W. 11 Ms. Ranjit Kaur, JMIC, Mansa, based on the application moved by the police recorded the statement of P.W.1 Raj Rani (Ex. PZ/2) u/s 164 Code of Criminal Procedure P.W. 8 having completed investigation laid the challan as against the accused.
The accused responding to the incriminating portion spoken to by the witnesses examined on the side of the prosecution stated that they were innocent. But, unfortunately they were falsely implicated in this case.
b) On the side of defence, D.W. 1 Kewal Krishan was examined. He has deposed that the accused Sandip Kumar @ Ghora infact attended the dinner hosted by him on 8/9.10.2003. The function lasted upto 0030 A.M. on 9.10.2003. Infact Sandip Kumar @ Ghora spent his night in the house of D.W. 1 Kewal Krishan.
c) D.W. 2 Mohinder Pal Gupta was the Press Reporter of Hind Samachar Group of Newspapers published in Jalandhar. Having visited the spot, he published the news item Ex. D.W. 2/A on 10.10.2003.
d) D.W. 3 ASI Swaran Singh has deposed that he having recorded the statement of Kewal Krishan, Vijay Gora and Rajinder Singh came to a conclusion that Sandip Kumar @ Ghora and Bhim Sen @ Prema were innocent.
e) D.W. 4 DSP Amarjit Singh has deposed before the trial Court that the report submitted by D.W. 3 was verified by him, but he had not submitted a separate report.
The trial Court totally disbelieved the ocular testimony of P.W. 1 (Raj Rani). The trial Court having relied upon the previous enmity spoken to by the witnesses, recovery of blood stained clothes and daggers at the instance of accused recorded conviction as against the Appellant.
Learned Counsel appearing for the accused/Appellant would submit that the trial Court has totally disbelieved the evidence of P.W. 1 Raj Rani, an eye witness projected by the prosecution. There is no evidence to connect the blood stains alleged to be found in the clothes of the accused/Appellant to the deceased Raj Kumar. The evidence of P.W. 3 Kamal Sood cannot also be relied upon as his evidence does not inspire confidence. The FSL report also does not disclose the group of blood found in the apparel of the accused/Appellant. Therefore, it is his submission that the accused/Appellant has so far suffered seven years of rigorous imprisonment in spite of the fact that there was no legal evidence available on record.
Per contra, learned Addl. Advocate General appearing for the State would submit that the trial Court has rightly relied upon the evidence of P.W. 3 Kamal Sood, P.W. 7 Head Constable Balwant Singh, and P.W. 8 SI Natha Singh, the investigating official in this matter in the background of medical evidence and FSL report to convict the accused/Appellant for the murder of Raj Kumar. But the trial Court failed to return a verdict of conviction as against the other three accused who faced the trial. She would also submit that the statement given by P.W. 1 Raj Rani would go to show that she was really an eye witness to the occurrence. Therefore, her evidence should have also been relied upon by the trial Court as against all the accused.
Learned Amicus Curiae Ms. Anju Arora, who was appointed as amicus-curiae in this case in the absence of counsel for the complainant, who filed Crl. Revision No. 1109 of 2008, would submit that she fully endorsed the arguments advanced by the learned Addl. Advocate General for the State. It is her further submission that the ocular testimony of P.W. 1 Raj Rani was completely ignored by the trial Court without considering the fact that within a few days of the occurrence, she had given statement u/s 164 Code of Criminal Procedure. Therefore, it is her submission that the prosecution has established beyond reasonable doubt that all the accused committed murder of Raj Kumar.
It is an unfortunate case where there was no legal evidence to clamp the accused/Appellant with the charge of murder of Raj Kumar, who has suffered so far seven years of rigorous imprisonment. The ocular testimony of P.W. 1 Raj Rani is found to be absolutely unnatural and unbelievable as rightly pointed out by the learned Counsel appearing for the accused/Appellant. The recovery of blood stained clothes from the accused/Appellant did not establish beyond reasonable doubt the involvement of the accused/Appellant in the offence of murder of Raj Kumar. The recovery of daggers alleged to have been sold by P.W. 3 Kamal Sood does not appear to be true. There might have been previous enmity for the accused/Appellant with the deceased, but the complaint given by P.W. 6 Rajesh Mahajan would go to indicate that he had a strong suspicion as against the family members of the wife of the deceased Raj Kumar also. There was no solid foundation of previous enmity the accused/Appellant had with the deceased.
The evidence of P.W. 2 Dr. Shilekh Mittal, who conducted post mortem examination, would establish beyond reasonable doubt that the deceased Raj Kumar who received as many as 12 lethal injuries out of 46 injuries was virtually butchered to death. Therefore, there is no doubt that Raj Kumar died due to homicidal violence.
Let us now critically analyse the first version of the prosecution found in the complaint Ex. PE lodged by Rajesh Mahajan (P.W. 6) who was none other than the blood brother of the deceased Raj Kumar. He has categorically stated in the complaint Ex. PE that Neeru, the daughter of his sister P.W. 1 Raj Rani came and informed him at about 1:00 A.M. on 9.10.2003 that Raj Kumar was stabbed to death by unknown persons in front of her house. It is his further version in the complaint that his sister Raj Rani was very much present near the dead body at the spot when he proceeded over there on information by Neeru. As he was not very much sure of the enmity the deceased had with all the four accused, the enmity the deceased had with the family members of the wife of Raj Kumar was also projected in the complaint.
Of course, it is contended by the learned Amicus Curiae appearing for the complainant that P.W. 6 Rajesh Kumar Mahajan was not the author of complaint Ex. PE. The information furnished by him that Raj Rani who became unconscious on witnessing the occurrence informed him of the attack launched by the accused was not properly recorded by P.W. 8. We do not have any hesitation to reject such a submission made by the learned Amicus Curiae appointed by this Court for the complainant. Firstly, we find that certain personal affairs of the deceased, namely, the divorce of first wife of the deceased and the second marriage solemnised by him with one Aarti and her departure from the matrimonial home to her parental home have been succinctly described in the First Information Report. Those particulars cannot be concocted by the police out of their imagination. These particulars relating to the personal affairs would have definitely emanated from P.W. 6 Rajesh Kumar Mahajan. Therefore, it is totally unbelievable that P.W. 6 was not the author of the complaint Ex. PE. Secondly, on perusal of the inquest report and the statement of P.W. 1 Raj Rani recorded by P.W. 8 during the course of inquest proceeding, we find that P.W. 1 Raj Rani had participated during the course of inquest conducted by P.W. 8. The inquest proceeding conducted by P.W. 8 in the presence of P.W. 1 Raj Rani and P.W. 6 Rajesh Kumar Mahajan would reflect that Raj Kumar, the brother of Rajesh Kumar Mahajan, was done to death by unknown assailants. It is to be noted that their stand in the statement u/s 161 Code of Criminal Procedure was exposed during the course of cross examination of those witnesses by way of eliciting the contradictions with reference to their previous statements recorded u/s 161 Code of Criminal Procedure.
The First Information Report was registered at 2:15 A.M. on 9.10.2003 based on the complaint given by P.W. 6 Rajesh Kumar at 2:00 A.M. on 9.10.2003 about the occurrence which took place at 0030 A.M. on the said date. The special report had reached the Court at 6:00 A.M. itself on the very same day. Under such circumstances, there would have been no occasion for the police to contact the accused and concoct a different story from that of the original version of P.W. 6.
b) We find that P.W. 1 Raj Rani and P.W. 6 Rajesh Kumar Mahajan have come out with a totally different version from that of the original version made before the investigating official. Of course, P.W. 1 has given a statement u/s 164 Code of Criminal Procedure before P.W. 11 JMIC, as though she was an eye witness to the occurrence. Such a later improvement found in the statement u/s 164 Code of Criminal Procedure recorded by P.W. 11 does not inspire confidence. The occurrence had taken place in the mid of night at 0030 A.M. on 9.10.2003. As many as 46 injuries have been caused with lethal weapons. It is not as if the occurrence took place in an uninhabited location. One would expect a close relative of the deceased to raise loud voice to attract neighbours to save the person attacked in the occurrence. But, it is not the case of P.W. 1 Raj Rani that she raised her voice for help to save the life of her brother Raj Kumar. Such an unnatural conduct throws a doubt on her story that she was an ocular witness to the occurrence.
c) The version of P.W. 1 Raj Rani that she was unconscious for few hours does not appear to be believable. Firstly, the complaint lodged by P.W. 6 does not refer to such a fact. Neeru, the daughter of P.W. 1 Raj Rani was not examined to establish the facts and circumstances under which she was sent to P.W. 6 for passing on the information regarding unfortunate occurrence. Had P.W. 1 Raj Rani been unconscious, she would not have participated in the inquest proceeding conducted by P.W. 8. To our surprise, P.W. 6 also participated in the said proceeding, but both of them had not whispered anything about the new story now reeled out by them that P.W. 1 actually witnessed the occurrence. Therefore, we find that the evidence of P.W. 1 and P.W. 6 falls short of credibility and trustworthiness. There was no reason for the investigating official to weave a fabricated story suppressing the ocular version in this case.
d) The other evidence available on record is the recovery of blood stained clothes of the accused, the recovery of dagger at the instance of the accused, and the Forensic Science Laboratory Report. We may make an observation that the recovery of blood stained clothes from the accused by itself would not clamp them with the charge of murder. The recovery of wearing apparels should have inspired confidence. The group of blood found in the blood stained clothes of accused should have been connected to the blood group of the deceased. Only then the trial Court can draw an inference, in the absence of any explanation from the accused that the accused was connected with the offence alleged against him.
e) In the instant case, we find that no independent witness was examined to establish either the recovery of the wearing apparels of the accused or the recovery of daggers. It is only P.W. 7 Head Constable Balwant Singh who speaks of recovery of the blood stained clothes from the accused and daggers on the basis of discovery statement given by them. In all fairness, the prosecution should have associated an independent witness to such an important recovery and examined him before the trial Court to establish the same. Such a non-association of independent witness to the recovery of material objects throws a doubt in the case of the prosecution, more especially when no explanation is forthcoming, why independent witnesses were not associated by P.W. 8.
f) Even assuming for the sake of argument that the recovery of material objects, namely, apparels of the deceased, wearing apparels of the accused and the dagger at the instance of the accused was established, the prosecution should connect the blood stains found on the material objects with the group of blood of the deceased. No such attempt was made to connect the group of blood found on the dresses of the accused with that of the blood group of the deceased. Further, there was no serology report to indicate the actual blood group found on the blood stains in the dresses. Therefore, the recovery of material objects also does not connect the accused to the crime as alleged against them.
g) Coming to the recovery of daggers, we find that the evidence of P.W. 3 Kamal Sood is found to be totally artificial. Similar type of daggers allegedly recovered at the instance of the accused were admittedly sold by a number of shopkeepers in the locality. Such daggers are easily available in the market. No receipt or bill was issued by P.W. 3 Kamal Sood, while selling those daggers to the accused. He had not seen the daggers allegedly sold by him to the accused on the day when he identified the accused as the persons who bought the daggers from him. Therefore, the evidence of P.W. 3 Kamal Sood does not inspire confidence. Even assuming for the sake of argument that the daggers were purchased from P.W. 3 Kamal Sood and the same were recovered at the instance of the accused, such a recovery by itself would not prove the case of murder as against the accused. The blood stains found on the daggers were not connected to the blood group of the deceased. Therefore, the recovery part of the case of the prosecution does not convincingly establish that it was only the accused who committed the murder.
The trial Court having mis-appreciated the evidence on record has recorded conviction as against the accused/Appellant Manmohan Kumar @ Manu. Of course, the trial Court has rightly disbelieved the evidence of the prosecution and recorded the judgment of acquittal as against the other accused, namely, Manish Kumar @ Phirki, Sandip Kumar @ Ghora, and Bhim Sen @ Prema.
In view of the above, the accused/Appellant Manmohan Kumar @ Manu is acquitted of the charge of murder punishable u/s 302 IPC and as a result of which the judgment of conviction recorded and sentence imposed by the trial Court as against the accused/Appellant Manmohan Kumar @ Manu stands set aside and the Crl. Appeal No. 1079-DB of 2007 is allowed. The accused/Appellant Manmohan Kumar @ Manu shall be set at liberty forthwith if he is not required in any other case. Confirming the judgment of acquittal recorded by the trial Court as against the other accused Manish Kumar @ Phirki, Sandip Kumar @ Ghora, and Bhim Sen @ Prema, Crl. Appeal No. 494-DB of 2008, filed by the State of Punjab and Crl. Revision No. 1109 of 2008 filed by the complainant Rajesh Mahajan, stand dismissed.