Jora Singh, J.@mdashThe appellant, Ravi Kumar filed this appeal for setting aside the judgment dated 9.8.2002 passed by Additional Sessions Judge, Jagadhri. Vide this judgment, whereby he has been convicted under Sections 302 and 201 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for one year.
2. In brief, prosecution version, is that on 27.1.2001, Faqir Chand, complainant made statement before SI, Ishwar Singh, on the basis of which, formal FIR Ex.PL was recorded. Faqir Chand, father-in-law of Ravi Kumar, appellant informed the police that his daughter Jeeto was married with Ravi Kumar about 5-6 years ago, and from this wedlock, Jeeto had two sons, namely Ankit aged about 3 years and Harpal (deceased) aged about 2 1/2 months. Jeeto had expired on 8.12.2000. Both the sons were in the custody of Ravi Kumar. On 26.1.2001, he had gone to the house of Ravi Kumar to enquire about the welfare of Ankit and Harpal. But Harpal was not found in the house. For his absence Ravi Kumar, did not give any reply. Today i.e. 27.1.2001, again he had gone to the house of Ravi Kumar along with Panchayat, then Ravi Kumar told that Harpal is no more in this world, and by saying so he had gone outside the house. He is sure that Harpal was murdered by Ravi Kumar. Statement was read over and explained to Faqir Chand who had signed the same in token of its correctness.
3. SI, Ishwar Singh on 28.1.2001 had apprehended the accused. Accused was interrogated. Accused suffered disclosure statement Ex.PF in the presence of Maya Devi and Suresh Pal to the effect that he had gagged the mouth of his son Harpal, aged about 2 1/2 months and killed him by throttling with his thumb and after wrapping his dead body into a towel buried him underneath the sand near the cremation ground about 3-4 days ago. He knew about the same and could get the same recovered. After that, SDM, Jagadhari was contacted and application Ex.PM was moved for proceeding u/s 176 Cr.P.C. SDM, Smt. Renu Phulia had accompanied the police party to the disclosed place. In pursuance of the disclosure statement, accused got recovered dead body of the child lying buried in a standing sugarcane crop. Photographer was arranged. Photographs were got clicked and the dead body was got recovered by removing earth. Dead body was identified by his grand father Mam Chand and Jagmohan. A feeder bottle was also recovered along with the dead body. Clothes worn by the deceased, towel and the feeder bottle were taken into police possession vide memo attested by the witnesses. Inquest report was prepared by the SDM. Rough site plan with correct marginal notes was prepared. Dead body was sent to hospital for post mortem examination. After the completion of investigation, challan was presented in the Court.
4. Accused was charged under Sections 302/201 IPC. Accused did not plead guilty and claimed trial.
5. In order to substantiate the charge, prosecution examined following witnesses:
PW-1, Dr. D.P. Singh stated that on 29.1.2001 he along with Dr. M.R. Passi had conducted post mortem examination on the dead body of a male child and observed as under:
The length of body was 22 inches. There was 5 cm x 2 1/2 cm pinkish contusion was present on the neck on the anterior aspect present just above the thyroid bone. A dead body of a male child wearing two blue jersey, one red jersey, one cap, body covered in a green towel. Mouth was open. Tongue protruded between teeth. Eyes were closed. Rigor mortis was absent in all the four limbs and neck. The skin peeled at some places. No other mark of injury was seen.
Cause of death was asphyxia due to throttling. Injuries were ante mortem in nature and were sufficient to cause death in the normal course of event.
PW-2, Rakam Singh, Sub Inspector stated that he had partly investigated the case in hand. On 16.3.2001, he had recorded the statement of Suresh Sharma, Photographer and on 7.4.2001 of Ramji Lal, Halqa Patwari, Chhachhrauli.
PW-3, Ramji Lal, Patwari, Halqa Chhachhrauli stated that he had prepared scaled site plan Ex.PD.
PW-4, Suresh Kumar, Photographer stated that on 28.1.2001, he was called by the police of P.S. Chhachhrauli. As per request of the police, he had taken photographs Ex.P-6 to P-8 when dead body was being recovered from the sugarcane fields.
PW-5, Jagbir Singh stated that on 28.1.2001, dead body was handed over to him for post mortem examination.
PW-6, Suresh Pal stated that he was summoned to the police station Chhachhrauli. Dead body of a child aged about 2 1/2/3 months was shown to him. His signatures was obtained by the police on blank papers. Suresh Pal was declared hostile.
PW-7, Yad Ram was also declared hostile.
PW-8, Faqir Chand complainant stated that his daughter Jeeto was married with Ravi Kumar about 5/6 years ago. They had two sons. Harpal was aged about 2 1/2 months. After the death of Jeeto, he had gone to the house of Ravi Kumar to enquire about the welfare of Ankit and Harpal. Harpal was not found in the house. He came back to his house. On the next date, again he along with some others persons had gone to the house of Ravi Kumar. Ravi Kumar replied that Harpal is not alive. He made statement Ex.PL before the police.
PW-9, Smt. Renu Phulia, Sub Divisional Magistrate, Jagadhri stated that on 28.1.2001 at about 2:20 p.m, she was present at her residence. SHO, Police Station Chhachhrauli moved an application Ex.PM and she made endorsement Ex.PM/1. After that she had gone to Police Station Chhachhrauli with the SHO. Accused was present in the police station. After that at the instance of Ravi Kumar, they had gone towards Paonta Sahib. In pursuance of the disclosure statement, Ravi Kumar got recovered the dead body of a child wrapped in a towel with a feeding bottle from the specified place. Dead body was taken into police possession. Thereafter she had submitted report Ex.PN dated 12.4.2001.
PW-10, Ishwar Singh is the Investigating Officer of this case.
6. After close of the prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent.
7. Defence version of the accused was that the child had died due to illness. Child was buried in the presence of many persons publicly. Death was natural. He was implicated at the instance of his father-in-law who was inimical towards him.
8. In defence, DW-1, Ram Chand appeared and stated that Ravi Kumar was residing jointly with his father and brothers. On 24.1.2001, he had received a message regarding death of the son of Ravi Kumar. In the presence of in-laws of Ravi Kumar, dead body of the child was buried.
9. After hearing learned Public Prosecutor for the State, learned Counsel for the appellant and from the perusal of the evidence on file, trial Court opined that the appellant committed an offence punishable under Sections 302 and 201 IPC and sentenced him to undergo imprisonment as stated aforesaid.
10. We have heard Mr. P.S. Ahluwalia, learned Amicus Curiae appearing for the appellant and the learned State Counsel and have also thoroughly gone through the evidence on the file.
11. Learned Counsel for the appellant argued that present case is based on circumstantial evidence. There is no eye witness. Only evidence to connect the appellant with the crime is the recovery of dead body in pursuance to the disclosure statement but recovery of dead body inspires no confidence when there was no motive to kill his own child. Appellant did not suffer extra judicial concession before any one. No evidence of last seen. According to the story on 28.1.2001, appellant had suffered disclosure statement before Suresh Pal and Smt. Maya Devi to the effect that he had murdered Harpal. After that dead body was wrapped into a towel and was burried underneath the sand in the cremation ground about 3/4 days ago. But Maya Devi was not examined. Suresh Pal was examined.
12. But Suresh Pal did not support the prosecution story. Investigating Officer stated that after the disclosure statement, SDM, Jagadhari was contacted. Application was moved. Then in the presence of SDM, as per disclosure statement suffered by the appellant, dead body was got recovered. Ex.PG is the recovery memo but the same was not signed by the SDM. SDM appeared as PW-9 then in examination-in-chief stated that on 28.1.2001, at 2:20 p.m, SHO contacted her. On the application Ex.PM, endorsement Ex.PM/1 was made. Then she along with the SHO had gone to the police station. Accused was present in the police station. Accused led the police party towards the place of recovery and in pursuance of the disclosure statement, got recovered the dead body from the fields of sugarcane. In cross-examination, she admitted that disclosure statement was not shown to her. Father-in-law of the appellant and his father were also present in the police station. She reached the police station around 4:15 p.m. Inquest report Ex.PC is not in her hand but was prepared on her dictation. At about 5:00 p.m, they had reached the place of recovery. Lastly admitted that no document was prepared at the place of recovery but prepared in the police station. That means no evidence on the file that appellant had suffered disclosure statement. Recovery of dead body in pursuance of the disclosure statement is also doubtful. No evidence on the file that dead body was of Harpal. Mam Chand and Jagmohan had identified the dead body but they were not examined. Complainant when appeared in Court did not state a word that he was present at the time to recovery of dead body and the body recovered was of Harpal. When there is no disclosure statement then without disclosure statement recovery is meaningless. Recovery was at 7:05 p.m, whereas disclosure statement was in the morning at about 8:00 a.m. Disclosure statement was that dead body was buried in the cremation ground. Appellant being the father had the knowledge where the dead body was buried but except recovery of dead body in pursuance of the disclosure statement, no other circumstantial evidence to connect the appellant with the crime. When the case is based on circumstantial evidence, then motive assumes importance. No cogent and convincing evidence on the file as to what was the motive to murder a child of about 2 1/2 months. In fact complainant was inimical towards the appellant. Appellant is a labourer. There is possibility that the child might have died due to the negligence of the appellant. State Counsel argued that as per post mortem report, injuries noted on the person of the deceased were ante mortem in nature. Recovery of dead body was in pursuance of the disclosure statement. Appellant being the father was to furnish reasonable explanation how unnatural death and how the dead body was recovered from the sugarcane fields.
13. Undisputedly, Jeeto daughter of Faqir Chand, complainant was married with the appellant about 5-6 years ago before the present occurrence. Appellant had two issues, namely, Ankit aged about 3 years and Harpal aged about 2 1/2 months, from this wedlock. Jeeto had died in the month of December 2000. After the death of Jeeto, both the sons were in the custody of the appellant. According to the prosecution story, Harpal Singh deceased aged about 2 1/2 months was murdered by the appellant and his dead body was buried in the sugarcane fields. Later on as per disclosure statement appellant got recovered dead body from the specified place, whereas defence version of the appellant is that death of the child was due to illness. Dead body was buried in the presence of number of persons publicly. Death was natural. Faqir Chand was inimical towards him and due to this reason, he was falsely implicated in this case.
14. It was a blind murder. No direct evidence on the file to connect the appellant with the crime. Appellant had not made extra judicial confession before anyone. No evidence of last seen. Only one circumstance to connect the appellant with the crime is recovery of dead body. Post mortem examination of the dead body was conducted on 29.2.2001 at 10:00 a.m. 5 cm x 2 1/2 cm pinkish contusion was noticed on the neck on the anterior aspect present just above the thyroid bone. In examination-in-chief, Doctor stated that rigor mortis was absent in all the four limbs and neck. No other mark or injury was noticed except stated above. In cross- examination, doctor admitted that rigor mortis starts to appear on the body after six hours and remains up to 36 hours. Post mortem examination was conducted at 10:00 a.m and at that time, rigor mortis should have been present and not absent. That means the Doctor is not clear about the probable time of death. In examinationin-chief, doctor stated that probable time that elapsed between injuries and death was immediate and between death and post mortem examination was within seven days. Doctor purposely reported that probable time that elapsed between death and post mortem examination was within seven days because post mortem examination was on 29.1.2001 and according to the disclosure statement dated 28.1.2001 boy was murdered about 3-4 days ago i.e. on 24 or 25.1.2001.
15. After the registration of FIR, appellant was arrested but it is not clear from where the appellant was arrested. Investigating Officer simply stated that after recording the FIR on 27.1.2001, effort was made to arrest the appellant but has not stated a word whether the appellant was available or not, then stated that on 28.1.2001, appellant was arrested. Evidence not clear whether the appellant was produced by somebody in the police station or the police party headed by the Investigating Officer was in the area of Chhachhrauli. After the arrest of the appellant, he was interrogated then he had suffered disclosure statement Ex.PF dated 28.1.2001 in the presence of Suresh Pal and Smt. Maya Devi, wife of Ram Chand. Disclosure statement is to the effect that he had gagged the mouth of his son, Harpal aged about 2 1/2 months and killed him by throttling with his thumb and after having wrapped his dead body in the towel buried him about 3-4 days ago. Story is that in pursuance of the disclosure statement, dead body was got recovered. Disclosure statement was signed by Maya Devi and Suresh Pal and not by SDM. Maya Devi was not examined. Suresh Pal appeared as PW-6, but he did not support the prosecution story. Suresh Pal stated that he was summoned to the police station where dead body was shown to him and his signatures were obtained on the blank papers. Except the statement of Suresh Pal, no other evidence that the petitioner had made disclosure statement before the Investigating officer.
16. Investigating Officer while appearing as PW-10 stated that after registration of FIR, appellant was arrested and interrogated on 28.1.2001, appellant had suffered disclosure statement. After that he had contacted SDM, Jagadhari. Application Ex.PM was moved before SDM. Endorsement Ex.PM/1 was made on the application by the SDM. SDM had accompanied the police party to the place of recovery. In pursuance of the disclosure statement, appellant got recovered dead body from the sugarcane fields. In case recovery was in the presence of SDM then recovery memo Ex.PG should have been signed by the SDM. No explanation why SDM did not sign Ex.PG. Recovery memo Ex.PG was attested by Suresh Pal and Maya Devi as discussed earlier but Suresh Pal did not support the prosecution story.
17. Evidence on the file is to the effect that before recovery of dead body in pursuance of disclosure statement, photographer was arranged. Photographer had taken the photographs when the dead body was being recovered from the sugarcane fields but in the photographs no photograph of the appellant or the SDM. If the recovery was in the presence of SDM and the witnesses namely, Suresh Pal and Maya Devi then they should be present in the photographs. SDM when appeared then admitted that father-in-law and father of the appellant were also present in the police station. Then on the request of the police, she had gone to the place of recovery. But no explanation why father-in-law of the appellant or his father were not requested to accompany the police party for the recovery of dead body in pursuance of the disclosure statement. Faqir Chand complainant has not stated a word that he was present in the police station when SDM came and before arrival of the SDM, appellant had suffered disclosure statement and why he had not gone to the place of occurrence with the police party.
18. In Dhanwant Singh v. Union Territory, Chandigarh 2007(2) RCR (Criminal) 868, it was held that when the case is based on circumstantial evidence and the only evidence is of last seen then evidence of last seen is not sufficient to convict the accused. Chain of circumstantial evidence should be complete. In the present case, only evidence to connect the appellant with the crime is the disclosure statement and recovery of the dead body. But prosecution failed to prove the disclosure statement by leading cogent and convincing evidence because Suresh Pal did not support the prosecution story in whose presence, appellant had suffered disclosure statement.
19. In Hari Kishan and Anr. v. State of Haryana 1990 (1) PLR 50, It was held as under:
Further, it will be seen that the only independent witness to these disclosure statements and the recoveries was PW-8, Shahtab Singh. A reading of his testimony would show that no discosure statement was made in his presence. The statement, after it had been recorded behind his back, was merely put before him for signatures while he was sitting outside the police station. Thus these recoveries too do not advance the prosecution case.
20. In Naresh Kumar v. State of Punjab 1997 (1) RCR (Criminal) 18, evidence to connect the accused with the crime was recovery of knife but no independent witness was joined. It was held as under:
Recovery of knife PW.1 also seems to be fake and a padding. No independent witness has been joined at the time of the disclosure statement alleged to have been made by the accused as well as at the time of alleged recovery of knife. The Investigating Officer has admitted in his cross-examination that Police station, Shahkot is in the abadi of the town and the accused was interrogated regarding the knife and his disclosure statement was recorded. No person from Shahkot was joined. He has further admitted in the cross- examination that when recovery from the place of concealment was effected, no other witness from the Mandir was joined. As stated above, only a person from Village Billi Chaharm, namely, Mohinder Lal was joined whose presence neither was natural, nor probable at the time of the disclosure statement, or at the time of recovery.
21. Similar view was taken by this Court in State of Haryana v. Anand 2006(1) RCR (Criminal) 298. It was held as under:
No explanation has come forward, as to why Head Constable Baljeet Singh and Vishnu Dutt, the independent witnesses to the disclosure statement, Ex.PC were not examined. It is difficult for us to convict respondent-accused Anand on the sole testimony of Sub inspector Satbir Singh (PW-1). Though, one Bhagwana (PW-3) was examined, but he was not a witness to the disclosure statement, Ex.PC Bhagwana (PW3) is a close relative of Assistant Sub Inspector Mohinder Singh. He is the uncle of the deceased and lives 80 Kms. away.
22. In this case, disclosure statement was suffered in the presence of Maya Devi and Suresh Pal but only Suresh Pal was examined. Suresh Pal did not support the prosecution story. First of all evidence on the file is doubtful as to whether the appellant had suffered a disclosure statement and if we presume that the appellant had suffered disclosure statement then the question is whether as per disclosure statement any recovery was made to link the accused with the crime. Without disclosure statement, evidence qua recovery is meaningless. In Kanbi Karsan Jadav v. State of Gujarat 1966 Crl. L.J 605, case was based on circumstantial evidence. Recovery was of dead body and silver buttons stained with human blood at the instance of the accused. Hon''ble Supreme Court observed that the mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder. But there are other circumstances which have to be considered. The discovery of the buttons with bloodstains at the instance of the appellant is a circumstance which may raise the presumption of the participation of the appellant in the murder.
23. Disclosure statement Ex.PM was to the effect that dead body was buried underneath the sand near the cremation ground but the recovery was not from the cremation ground. Recovery of dead body was from the sugarcane fields. That means, recovery was not in pursuance of the disclosure statement alleged to have been suffered by the petitioner. In
24. Appellant was the father of the deceased. As per defence version, he had buried the dead body in the presence of relatives. DW-1, relative of the petitioner appeared and stated that when he came to know about the death of child on 24.1.2001 then he had gone to village Chhachhrauli. In-laws of the appellant were also present. Dead body of the child was buried in their presence. He had attended the funeral. 10/12 persons had attended the funeral besides him.
25. Appellant is to be presumed innocent unless the guilt is proved. In this case, defence version seems to be more probable then the prosecution version because no evidence on the file as to whether appellant had made disclosure statement. Secondly, the recovery of dead body in pursuance of the disclosure statement is also doubtful. Because dead body was recovered in the presence of SDM but recovery memo Ex.PG shows that SDM was not present. If SDM was present at the time of recovery of dead body then why she did not sign the same. Thirdly, in Bhimappa Jinnappa Naganur v. State of Karnataka 1994(1) RCR (Criminal) 571, Hon''ble Supreme Court observed that if recovery of weapon without disclosure statement then recovery is meaningless. In this case, Ishwar Singh, Investigating Officer in cross-examination admitted that disclosure statement was suffered by the appellant at 8-9 am on 28.1.2001 whereas the appellant was formally arrested on 28.1.2001 at 6-7:00 p.m that means before formal arrest appellant had suffered disclosure statement, whereas the SDM, Smt. Renu Phulia in cross- examination admitted that she along with the police party had reached the place of recovery at 5:00 p.m and after recovery, returned from the police station at 7:00 p.m to Jagadhari. In case the disclosure statement was in the morning before formal arrest then no credible evidence on the file that the appellant had suffered disclosure statement. In
In these circumstances, therefore, we are not in a position to rely on the judicial confession. As regards the production of the tangia by the accused before the police, the High Court seems to have relied on it as admissible u/s 8 of the Evidence Act. As there is nothing to show that the appellant had made any statement u/s 27 of the Evidence Act relating to the recovery of this weapon hence the factum of recovery thereof cannot be admissible u/s 27 of the evidence Act. Moreover, what the accused had done was merely to take out the axe from beneath his cot. There is nothing to show that the accused had concealed it at a place which was known to him alone and no one else other than the accused had knowledge of it. In these circumstances the mere production of the tangia would not be sufficient to convict the appellant. For the reasons given above we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. The appeal is accordingly allowed, the conviction and sentence imposed on the appellant are set aside and he is acquitted of the charges framed against him. The appellant is directed to be released forthwith.
26. Next question is whether the dead body recovered was of Harpal. According to the inquest report, Ex.PC dead body was identified by Mam Chand and Jagmohan but for the best reasons known to the prosecution, they were not examined. Faqir Chand complainant was not present at the time of recovery. He did not state a word that he was present at the time of recovery and had identified the dead body as of Harpal. Suresh Pal, PW-6 stated that he was summoned in the police station where dead body was shown. Suresh Pal in examination-in-chief or cross examination failed to state that the dead body shown to be him was of Harpal. Dr. DP Singh stated that the dead body was identified by Mam Chand and Jagmohan when produced by the police officials but Mam Chand and Jagmohan were not examined by the prosecution.
27. Last point to be considered is whether appellant had the motive to commit the crime. Wife of the appellant had died in the month of December. Faqir Chand in cross-examination admitted that he was inimical towards the Appellant due to the death of his daughter. Appellant had two sons. After the death of his wife, appellant had no reason to murder his 2 1/2 months old child. At the time of recovery of dead body, feeder bottle was also recovered. If appellant as per prosecution story had murdered his child and then buried the dead body, then there was no idea to bury the bottle also. Recovery of feeder bottle along with the dead body shows that death of 2 1/2 months old child was natural. There is a possibility that the appellant being labourer when went out of the house, then the minor child might have received injury by fall etc. Appellant at the most could be negligent. So only one circumstance i.e. recovery of dead body is not sufficient for connecting the appellant with the crime. Thus, prosecution failed to prove the charge against the appellant. Hence he is entitled to be acquitted.
28. In view of the above, impugned judgment is set aside and the appeal is allowed. Appellant is acquitted of the charge levelled against him.
29. The appellant, who is in custody, be set at liberty forthwith, if not required in any other case.
