S.S. Saron, J.@mdashThis appeal has been filed by the appellant - Smt. Shanti Devi widow of deceased in the case namely Dev Raj against the judgment and order dated 28.02.2013 passed by the learned Additional Sessions Judge, Faridabad, whereby Raju and Manvender (respondents No. 2 and 3) have been acquitted of the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code (''IPC'' - for short). Along with the appeal, criminal miscellaneous application No. 52205 of 2013 has been filed seeking condonation of delay of 202 days in filing the appeal.
2. FIR (Ex. PAE) was registered on the statement of complainant - Ravinder Dagar son of Hari Chand, resident of Village Kabulpur Bangar, Tehsil Ballabgarh, District Faridabad. According to the complainant, he was present in his village on 09.07.2011. He received information at that time that within the revenue limits of his village, a truck had overturned and it was lying in big ditches. The complainant along with Bhopal Singh son of Phool Singh and Heera Lal son of Bhim Singh reached the spot where the truck had overturned. There they noticed that truck No. HR-38G-7788 had overturned in the ditches along the road in the fields of Chanda son of Singh Ram. In the cabin of the truck, there was a dead body of an unknown person with several injuries on its head. There was blood also in the cabin of the truck. It appeared that someone had murdered the said unknown person and the incident had been made to appear as an accident. The complainant left Bhopal Singh at the spot and he was going to lodge a report that the police party headed by ASI Anil Kumar met him and recorded his statement.
3. Police proceedings were recorded by ASI Anil Kumar to the effect that on 09.07.2011 he along with Constable Pardeep Kumar and Constable Asab Khan were going to Kabulpur village in a government vehicle. On receiving information that a truck was lying overturned in village Kabulpur, then on the way to the village, near Bharat Bhatta Ravinder Daggar Sarpanch of village Kabulpur (complainant) met them. He submitted an application. From the application, offence under Section 302 IPC appeared to be made out. The writing was sent to the police station through Constable Asab Khan for registration of a case (FIR). After registration of the case, its number was asked to the intimated. He also sought permission to investigate the case. Investigation was conducted by ASI Anil Kumar. He reached the spot and prepared rough site plan Ex. PAB along with marginal notes. The dead body was recovered from the truck, which was identified by Netra Pal, who was working as a conductor on the truck. The statement of Netra Pal conductor was recorded. The dead body was sent to B.K. Hospital, Faridabad. Information was given to the family members of deceased Dev Raj son of Than Singh. Blood from the spot was lifted with the help of swabs which was taken in possession vide recovery memo Ex. PM. The truck was also taken in possession vide recovery memo Ex. PN.
4. A day after the incident, i.e. on 10.07.2011, Shanti Devi-appellant came present at the hospital and identified the dead body. The statement of Shanti Devi was recorded. The inquest proceedings were completed as no one from the family of the deceased was present at the spot on 09.07.2011 for the purpose of identification of the dead body. An application Ex. PAD was submitted making a request for conducting post mortem examination of the dead body by a medical board. Scene of crime expert was called for inspection of the spot on 10.07.2011,. After inspection, report Ex. PH was obtained. The dead body was photographed in the truck. The photographs were Ex. PE, Ex. PF and Ex. PG. After post mortem examination, the doctors handed over a duly sealed parcel of the wearing clothes of the dead body, which were taken in possession vide recovery memo Ex. PK. Further investigation was entrusted to ASI Nand Kishore.
5. During investigation, the accused Raju (respondent No. 2) was arrested on 12.07.2011. He made a disclosure statement Ex. PO admitting his involvement in the case. On the same day, he led the police party and got recovered a black coloured pant and a shirt wrapped in a polythene, which were kept in his house at Rajiv Colony. Those were blood stained and after recovery, the same were converted into parcel which was duly sealed and taken in possession vide recovery memo Ex. PP. The accused also identified the place of occurrence vide memo Ex. PQ in Sector 56 and vide Ex. PR near village Kabulpur. The police party was on the way to get the hammer recovered on 16.07.2011, in terms of the disclosure statement made by the accused-Raju (respondent No. 2), then he made another disclosure statement Ex. PS. He resiled from his previous statement and stated that he had concealed the hammer in village Gadhi Bansi. On the next day, the accused-Raju (respondent No. 2) got recovered a hammer and the same was taken in police possession vide recovery memo Ex. PT. Accused-Bhikambar surrendered before the learned Illaqa Magistrate on 19.08.2011 and was associated with the investigation. He was found to be a juvenile and was sent for trial to the Juvenile Justice Board. Accused Manvender (respondent No. 3) was arrested on 24.08.2011. He was interrogated and during investigation, he made a disclosure statement Ex. PW admitting his involvement in the case. On the same day, Manvender (respondent No. 3) led the police party in accordance with his disclosure statement Ex. PW and identified the place of occurrence in Sector 56 and near village Kabulpur. The memos were prepared in this regard by the investigating officer, which were duly attested by ASI Anil Kumar. His statement was also recorded. After completion of investigation, police report in terms of Section 173 of the Code of Criminal Procedure (''Cr.P.C.'' -for short) was filed in the Court of the learned Additional Chief Judicial Magistrate, Faridabad on 08.10.2011.
6. The learned Magistrate, in view of the offence under Section 302 IPC being alleged, was of the view that the same was triable by the Court of Session. Accordingly, vide order dated 29.10.2011, the case was committed to the Court of learned Sessions Judge, Faridabad for trial. The case was received in the Court of learned Additional Sessions Judge, Faridabad on 07.11.2011. She framed charges against Raju and Manvender (respondents No. 2 and 3) on 09.12.2011 on the allegations that on 08.07.2011 at about 09:00 p.m. in the area of Kabulpur Bangar within the jurisdiction of Police Station Sector 55 along with their co-accused Bhikambar @ Bheeka (since declared juvenile) and Rameshwar (not yet arrested) in furtherance of their common intention committed murder of Dev Raj son of Than Singh, driver of Truck No. HR-38G-7788 with the help of a hammer and thereby committed an offence punishable under Section 302 read with Section 34 IPC. Secondly, on the same date, time and place, both the accused, namely Raju and Manvender (respondents No. 2 and 3) along with their co-accused Bhikambar @ Bheeka (since declared juvenile) and Rameshwar (not yet arrested) in furtherance of their common intention caused disappearance of evidence by concealing the dead body of deceased Dev Raj in truck No. HR-38G-7788 and thereby committed an offence punishable under Section 201 read with Section 34 IPC. Both the accused (respondents No. 2 and 3) pleaded not guilty to the charges and claimed trial.
7. The prosecution in order to establish its case examined as many as twenty witnesses; besides, tendered documents in evidence including the FSL report (Ex. PX). The learned trial Court, after considering the evidence and material on record, has acquitted the respondents No. 2 and 3. Aggrieved against the acquittal, the ''victim'' Shanti Devi wife of deceased Dev Raj has filed the present appeal.
8. We have heard learned counsel for the appellant, learned counsel for the State and learned counsel for respondents No. 2 and 3 and with their assistance perused the trial Court record that has been requisitioned.
9. The learned trial Court, in its impugned judgment and order, held that there was no witness who had seen the occurrence and the prosecution relied upon the circumstances to prove the charge against respondents No. 2 and 3. There was admittedly no direct evidence against the accused (respondents No. 2 and 3). The learned trial Court did not find a strong motive to convict respondents No. 2 and 3. The motive for the case is deposed by Shanti Devi - appellant, who appeared as PW13, and Dharampal (PW1). According to Dharampal (PW1), Dev Raj (deceased) was his real cousin. He had identified the dead body of Dev Raj at B.K. Hospital, Faridabad on 10.07.2011. There were injuries on his head, arms and legs. He was driver of truck No. HR-38G-7788. The said truck met with an accident near village Kabulpur. There was some money dispute between Dev Raj and Raju (respondent No. 2). Due to said reason, Raju (respondent No. 2) and others had caused injuries to Dev Raj. His statement was recorded. In cross-examination, he stated that he was not present at the spot at the time of accident, therefore, he could not say as to who was involved in the present offence. PW13 Shanti Devi wife of deceased Dev Raj also deposed that her husband (deceased) used to exchange money with Raju (respondent No. 2) and due to the dispute Raju (respondent No. 2) had a grudge against her husband, therefore, he had murdered her husband.
10. The learned trial Court held that except for the oral statement of Shanti Devi (PW13) and Dharampal (PW1), there was no evidence on record to show that Dev Raj was having any money transactions with the accused and due to the said reason, the accused killed him. Their oral version, it was held, did not inspire confidence to prove that there were money transactions between the deceased and the accused (respondents No. 2 and 3).
11. The other evidence was recovery of clothes of accused and the weapon, i.e. hammer, in pursuance of disclosure statement of accused Raju. Raju (respondent No. 2) made a disclosure statement Ex. PO and in pursuance of the said disclosure statement, he got recovered his blood stained clothes from a polythene bag. The recovery memo Ex. PP mentions that he had got recovered a yellow coloured shirt with stripes and a black pant, which were stained with blood; besides, weapon of offence was got recovered by him. The learned trial Court held that insofar as involvement of Raju was concerned, his confession before the police party would be inadmissible in evidence. As regards recovery of blood stained clothes and recovery of the weapon of offence was concerned, it was held that there was no cogent and convincing evidence connecting the hammer with the crime alleged to have been used by the accused for committing the offence. Such type of hammer, it was observed, are commonly available in the market and there was no specific identification mark on it. Otherwise also, there was substance in the argument advanced by learned defence counsel that there was no occasion for the accused (respondent No. 2) to conceal the hammer at such a place which was open and accessible to all. Moreover, no independent witness was joined at the time of effecting recovery.
12. The learned trial Court also observed that no doubt though blood was detected on the hammer as per FSL report Ex. PX, but there was no report regarding the blood group to show that it was that of the deceased. As regards recovery of blood stained clothes, which the accused was allegedly wearing at the time of murder, the same did not connect them with the crime as blood grouping was not carried out by the Chemical Examiner to link the blood with the blood group of the deceased.
13. We have perused the FSL report Ex. PX. A perusal of the said report shows that there were two sets of clothes which were sent for chemical examination, i.e. of the deceased and of Raju (respondent No. 2). Insofar as the clothes of Raju are concerned, those were contained in parcel No. 4 sealed with the seal impression ''3-NK''. The said parcel contained Exs. 4a to 4c. Ex. 4a is a damp and dirty striped green shirt, Ex. 4b is a damp and dirty black pant and Ex. 4c is a damp and dirty white ''parna''; besides, there was parcel No. 3, which contained a metallic ''Hathoda'' (hammer) (approximately 43 cms). As per laboratory examination, blood was detected on Ex. 2 (Hathoda), Ex. 4a (shirt), Ex. 4b (pants) and Ex. 4c (''parna''). However, as per this serological report, material was disintegrated on these items, i.e. parcel No. 3 and parcel No. 4 including ''Hathoda'', shirt, pants and ''parna''; besides no ''parna'' is shown to have been recovered while a ''parna'' was sent for chemical examination. The question whether the blood on the above items was human blood has not been established according to the serological report, as the material had disintegrated. Besides, according to the recovery memo, Raju (respondent No. 2) had got recovered a yellow colour shirt with stripes but according to FSL report, the shirt of said Raju which was examined and was Ex. 4a has been mentioned as a damp and dirty striped green shirt. However, in respect of the clothes of the deceased which were contained in parcel No. 2 of the FSL report, i.e. a dirty tear and torn brown shirt stained with brown stains (Ex. 2a) and a dirty tear and torn black pants stained with brown stains (Ex. 2b), as per serological tests were of human blood. Therefore, insofar as the blood stained clothes of Raju (respondent No. 2) and the hammer are concerned, it is not established by the prosecution as to whether this was human blood. This aspect though has not been noticed by the learned trial Court. In fact it is not a case of the blood not matching but it is not certain whether the blood on the clothes of Raju (respondent No. 2) that are stated to have been recovered was human blood.
14. The further contention raised by the learned counsel for the appellant is that it was for Raju (respondent No. 2) to explain as to how the dead body was found in his truck. We are of the view that the prosecution is to establish its case on its own. However, it may be noticed that Udesh Kumar (PW16) is the owner of the Tata Truck bearing registration No. HR-38G-7788. He has deposed that the said truck was entered in his name. His driver Raju (respondent No. 2) had sent a telephonic message to him that the truck had been stolen. Thereafter, the truck was found at a distance of about six-seven kilometres from the spot on Samaypur road, which had overturned in the ditches. On receipt of the information from the police, he reached the spot and saw that a dead body was lying in the cabin of the truck. The police conducted further proceedings and the truck was taken in custody by the police and was taken to the police station. He moved an application Ex. PN for releasing the truck in his favour on ''superdari''. The ''superdarinama'' Ex. PO was submitted by him. Raju (respondent No. 2) was the driver of the truck and he had taken the said truck in the evening at about 06:00 p.m. from Ballabgarh. In cross-examination, he (Udesh Kumar - owner of the truck) stated that he had no written proof that Raju was his driver. It is stated as incorrect to suggest that Raju never drove his truck. He had no knowledge regarding the death of deceased Dev Raj. He was not present on the spot at the time of occurrence. Such circumstance as to how the dead body was recovered from the cabin of the truck though not explained by the accused, however, this by itself is not such a circumstance from which a finding of guilty can be recorded. This is more so for the reasons that there is a defence on the part of the accused/respondents that the truck was stolen and the dead body was found after it had overturned. Besides, in the facts and circumstances when there is no clear motive whatsoever for respondents No. 2 and 3 to commit the murder of Dev Raj in connection with the alleged money dealings, we are unable to find any fault with the impugned judgment and order of the learned trial Court in acquitting the accused/respondents. In the circumstances, the learned trial Court has taken a possible view and merely because another view may be possible would not be a ground to interfere with the impugned judgment and order.
15. In the circumstances, the appeal is dismissed summarily in terms of Section 384 of the Cr.P.C.
16. The question of 202 days delay in filing the appeal is only academic and the same is also dismissed.
