Tinku vs State of Haryana

M. Jeyapaul, J.—All the five accused Tinku, Anil, Sunil, Ashok and Suman were convicted by the Sessions Court u/s 302 read with Section 34 IPC and were sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/- each and in default of payment of fine, to further undergo R.I. for 5 years each. They were also convicted u/s 201 read with Section 34 IPC and were sentenced to undergo R.I. for 5 years and to pay a fine of Rs. 1000/- each and in default of payment of fine, to further undergo R.I. for 1 year each. They have preferred the above individual appeals. None represented accused-appellant Anil before this Court. Sh. Aman Pal, Advocate who was appearing for accused-appellant Tinku was appointed as Amicus Curiae to argue the case on behalf of accused-appellant Anil and assist the Court. The Legal Services Authority shall pay the scheduled fee as per Rules to the above counsel so appointed for the accused-appellant Anil. The brief case of the prosecution is that accused Suman was married to Atul Kataria (deceased). She developed some illicit relationship with accused Anil. On 27.4.2005, Atul Kataria took his wife Suman to Rohtak on a motorcycle as she had to appear in some examination.

PW9-A Shamsher Singh was the sister''s husband of the deceased Atul Kataria. He spotted the deceased alongwith his wife Suman on a motorcycle at Silani Gate, Jhajjar at about 7.30 a.m. on 27.4.2005. When they were enquiring about the well-being of each other, a big car bearing registration No. CH01-P-5427 came over there. Four persons got down from the car. Accused Suman informed PW9-A that accused Anil was the son of her Bua. The other three accused introduced themselves as Ashok, Sunil and Tinku. The deceased and his wife boarded the car whereas Tinku proceeded on the motorcycle of the deceased. All of them proceeded towards Rohtak. He came to know that on the same day Atul Kataria was killed. He also passed on the above information to PW4 Rameshwar Dayal, father of the deceased.

The deceased was the nephew of PW10 Daya Singh. PW10 Daya Singh also spotted the accused alongwith the deceased in the aforesaid car on 27.4.2005 at about 9.00 a.m. at Rohtak-Jhajjar Chungi. On 30.4.2005 he came to now that Atul Kataria was murdered by someone.

PW4 Rameshwar Dayal, the father of deceased Atul Kataria was informed by accused Suman on enquiry that her husband had gone to Gurgaon after dropping her at bus stand Jhajjar. As the deceased had not come to the house, PW4 made an enquiry with Contractor Panwar who disclosed to him that the deceased had already taken one day leave for taking his wife to the college for examination.

On 27.4.2005 at about 9.00 a.m. when PW3 Dharampal was proceeding to his fields in the area of village Bhindawas, he found a dead body lying in the water course. He also found a rope around the neck of the deceased. He met the police at the chowk and informed the matter. His statement Ex. P3 was recorded by PW16 ASI Bahram Parkash.

PW16 proceeded to the place of occurrence and found the dead body lying in drain No. 8. He got the dead body photographed. He held proceedings u/s 174 Cr.P.C. Inquest report Ex. P42 was prepared. No one could identify the dead body. On the right hand of the dead body, the name Atul was written.

PW8 Dr. Kumud Sharma, Medical Officer attached to G.H. Jhajjar conducted the post mortem examination on the unknown dead body of a male on 28.4.2005. She found that rigor mortis was present only in the lower limbs. Double ligature rope marks were found around the neck. He opined that the deceased died within 36 hours due to Asphyxia as a result of strangulation which was ante mortem in nature and was sufficient to cause death in the ordinary course.

PW16 ASI Bahram Parkash took into possession the apparels of the deceased, namely, Shirt (Ex. P4), Pants (Ex. P5), pair of shoes (Ex. P6), pair of socks (Ex. P7), underwear (Ex. P8) and the rope (Ex. P34) from the Doctor who conducted the post mortem examination.

On 30.4.2005, PW4 identified the deceased as his son Atul Kataria based on the photograph and the apparels recovered from the dead body. On 5.5.2005, based on the secret information received by PW10, accused Anil, Sunil, Ashok and Tinku who were proceeding to Rohtak were arrested. Based on the disclosure statement made by accused Anil, a car from his house was recovered. On the basis of the disclosure statement made by accused Ashok, a purse belonging to the deceased was recovered from a bush nearby the place of occurrence. A golden chain and a diary were also found in the purse. On the basis of the disclosure statement made by accused Sunil, a mobile phone possessed by the deceased was recovered from the drain of Bhindawas. A motorcycle near Dighal school was recovered based on the disclosure statement made by accused Tinku. Accused Suman pointed out the place of occurrence.

PW16 having completed the investigation laid final report as against all the accused.

The trial Court having heavily placed reliance upon the evidence of PW9-A and PW10, in the background of the recovery made based on the disclosure statements suffered by accused and the medical evidence on record, recorded conviction as against all the accused.

Learned counsel appearing for the appellants would vehemently submit that the case based on the circumstantial evidence was not established beyond reasonable doubt. The evidence of PW9-A and PW10 are not at all reliable. They are infact interested witnesses who have been roped-in by the investigation official to strengthen the case of the prosecution. Their presence at the relevant places is highly doubtful. The recovery of material objects also does not inspire confidence. Therefore, it is their submission that the accused are entitled to acquittal.

Mr. Dhruv Dayal, DAG, Haryana appearing for the State would submit that the trial Court has rightly convicted all the accused based on the chain of circumstances cogently established before the trial Court.

We find that there is no direct evidence to establish the case of the prosecution. PW9-A and PW10 have been projected as the witnesses who last saw the accused alongwith the deceased. Their evidence will have to be tested critically before acceptance.

PW9-A Shamser Singh is admittedly the sister''s husband of the deceased. He has allegedly spotted all the accused alongwith the deceased on 27.4.2005 at about 7.30 a.m. at Jhajjar. He has categorically deposed that on 27.4.2005 itself, PW4 Rameshwar Dayal enquired about Atul Kataria. PW9-A informed him that he met the deceased alongwith the accused at Jhajjar. There is no explanation from the prosecution as to why PW4 Rameshwar Dayal had not enquired about the deceased from the accused. It is surprising that he had not supplied any such clue to the police when he first met them on 30.4.2005. Had PW9-A passed on such a vital information to PW4 Rameshwar Dayal, there was no reason for Rameshwar Dayal to wait till 30.4.2005.

PW9-A would depose during the course of chief examination that he came to know that Atul Kataria was killed in the evening of 27.4.2005 itself. But in the cross-examination he contradicts himself and deposed that only on 28.4.2005, he came to know of the death of Atul Kataria. But surprisingly, the death of Atul Kataria was not known to PW4 till 30.4.2005. To top it all, PW9-A was examined only on 1.5.2005 u/s 161 Cr.P.C. by the investigating official. That apart, we find that it is humanely impossible for a person who meets four persons for the first time to keep in memory all the names and addresses of those persons. Infact when PW9-A was examined u/s 161 Cr.P.C., he had furnished all the particulars including the name and addresses of the accused. There was no occasion for him to keep in memory the registration number of the car which was used by the accused. The registration number of the car also has been furnished in the statement suffered by him before the police.

We find that PW9-A is an interested witness. He has been roped-in by the police later in point of time to support the make-believe story constructed awfully by the investigating official. His version is found to be totally artificial. His evidence does not inspire confidence. Therefore, we find no hesitation to reject the testimony of PW9-A Shamsher Singh.

Let us now take up the evidence of PW10 Daya Singh. The deceased is none other than the nephew of PW10. In other words, PW10 also is closely related to the deceased. As he is an interested witness, his evidence will have to be cautiously dealt with by the Court.

The prosecution has come out with a story that PW10 also met the accused alongwith the deceased on 27.4.2005 at 9.00 a.m. at Rohtak-Jhajjar Chungi at Rohtak. Surprisingly, PW3 Dharampal has spotted the dead body on the very same day at the very same time. Therefore, there would not have been possible for PW10 Daya Singh to spot the accused alongwith the deceased in the car at that point of time at Rohtak-Jhajjar Chungi.

It is to be noted that as per the evidence of PW9-A, except Tinku, all the accused alongwith the deceased boarded the car. Accused Tinku proceeded on the motorcycle of the deceased. But strangely PW10 would depose that all the accused alongwith the deceased were found in the car itself. In other words, he does not speak about accused Tinku driving the motorcycle. Had accused Tinku taken the motorcycle, PW10 would not have spotted accused Tinku also in the car. Very interestingly, he would depose that he did not disclose PW4 Rameshwar Dayal that he had seen accused Suman in the company of other accused at Rohtak. He had not even disclosed this fact to the police. Only on 1.5.2005, when he was examined u/s 161 Cr.P.C., he came out with such a tutored revelation. His evidence also does not pass the test of credibility. Therefore, we have no hesitation to reject his testimony as well. We are constrained to hold in the above facts and circumstances that the prosecution miserably failed to establish the main link in the chain, namely, the last scene theory projected through PW9-A and PW10.

Let us now take up the disclosure statements suffered by the respective accused and the recovery made from them. It is projected by the prosecution that accused Suman, the wife of the deceased, took the police party to the place where the deceased was murdered and demarcated the same. There is no evidence adduced by the prosecution that accused Suman also was present at the place where the deceased was strangulated to death. Infact, the prosecution has let-in evidence through PW10 to show that accused Suman was dropped at Rohtak-Jhajjar Chungi and thereafter the other accused alongwith the deceased proceeded in the car. We are at a loss to understand as to how accused Suman would have personal knowledge about the place of occurrence. Therefore, the place of occurrence alleged to have been demarcated by accused Suman does not in any way implicate accused Suman. It is to be noted at this juncture that nothing was recovered from accused Suman.

The prosecution examined PW15 Om Parkash to establish that motorcycle of the deceased was recovered at the instance of accused Tinku. PW15 has turned hostile as regards the version of prosecution that the motorcycle belonging to the deceased was recovered from the house of accused Tinku. Infact, PW15 Om Parkash has deposed that the motorcycle was found parked in the police station premises and the same was not recovered from the house of Tinku at his presence. Thus recovery of motorcycle from the house of Tinku was not established by the prosecution. Even assuming that such a recovery was so established, in our considered view, such a recovery would not clinchingly indicate the complexity of accused Tinku in the crime of murder.

A mobile phone from the bush located nearby the scene of crime was allegedly recovered from accused Sunil. A purse of the deceased from nearby the bush was also allegedly recovered at the instance of accused Ashok. Very interestingly, the prosecution has come out with an unbelievable story that a golden chain also was found in the purse which was retrieved from the bush.

There was no reason for the accused to collect the mobile phone and purse from the dead body and threw away the same in the bushes located close-by. No sane person would have left the golden chain in the purse itself and throw away the same carelessly in a bush. There was no evidence to establish that a mobile phone was owned by the deceased. For all these reasons, we find that the recovery alleged to have been made at the instance of accused Sunil and accused Ashok also do not support the weak foundation laid by the prosecution.

The recovery of car from accused Anil from his house at his instance as spoken to by PW14 Sandeep does not in any way pin-point the guilt towards him. The recovery of the material objects projected by the prosecution does not in any way establish the case of the prosecution. None of the chain in the circumstances spoken to by the witnesses was established.

We find that the motive part of the case of the prosecution was never whispered by any of the witnesses to the case of the prosecution. PW4 has not even referred to the illicit relationship accused Suman maintained extra-martially with accused Anil. In a case based on circumstantial evidence, the motive projected by the prosecution shall have to be established. In our view, the prosecution miserably failed to lead any credible evidence to establish the motive part of the case.

For the foregoing reasons we hold that the prosecution failed to establish the charges framed as against all the accused. Therefore, they are entitled to acquittal. As a result, the judgment of conviction recorded by the trial Court as against all the accused stands set aside and all the four appeals stand allowed. Appellants Anil, Tinku and Suman are found to be on bail. Their bail bonds shall stand discharged. Appellants Sunil and Ashok are found to be undergoing sentence. They shall be set at liberty forthwith, if their custody is not required in any other case.