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2002 DIGILAW 1336 (PNJ)

Sonu @ Sonia v. State of Haryana

2002-12-02

AJAY TEWARI, RANJAN GOGOI

body2002
JUDGMENT Mr. Ranjan Gogoi, J.:- This appeal is directed against the judgement and order dated 03.05.2002 passed by the Additional Sessions Judge (Adhoc), Fast Track Court, Faridabad in Sessions Case No. 32 of 2001 by which the accused/appellant has been convicted under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for a period of one year more. 2. The short case of the prosecution is that Ashwani Kumar (PW8) and one Rajesh were running an office in the name of Vinayak Motors in building No. B-491, Nehru Ground, Faridabad. The deceased, Ateeq Ahmad, used to work in the said office. On 27.11.1999 at about 4.00 PM the deceased had left on a scooter saying that he had some urgent work. At about 8.00 PM a call was received on the mobile phone of PW8 from the deceased Ateeq Ahmad that he would not be returning to the office. According to the prosecution, PW8 could hear the voice of a lady coming on the mobile and, on being asked, the deceased Ateeq Ahmad had informed him on the phone that the lady was one Sonu i.e. the accused/appellant. 3. The prosecution case is to the further effect that on the next day i.e. 28.11.1999 at about 10.00 AM, PW8 came to the office and found the scooter used by the deceased parked with the clutch and gear wires broken. According to the prosecution, when (PW8) Ashwani Kumar went up to his office on the third floor he found the lock broken and on entering he found Ateeq Ahmad lying dead on the Diwan in the office. Furthermore, according to the prosecution, PW8 noticed marks of violence on the neck of the deceased. PW8 left the office to inform the Police about the incident and on the way met a Police party at Neelam Chowk where he made a statement (Ex. PD) to Ramesh Pal, Inspector/Station House Officer, Police Station Kotwali, Faridabad (PW12). On the basis of the aforesaid statement formal FIR (Ex. PD/2) was recorded by Partap Singh, Sub Inspector of Police (PW3). Thereafter, according to the prosecution, a Police party went to the office of (PW8) Ashwani Kumar and found the dead body lying there. Inquest proceedings were conducted and report thereof (Ex. PR) was prepared. On the basis of the aforesaid statement formal FIR (Ex. PD/2) was recorded by Partap Singh, Sub Inspector of Police (PW3). Thereafter, according to the prosecution, a Police party went to the office of (PW8) Ashwani Kumar and found the dead body lying there. Inquest proceedings were conducted and report thereof (Ex. PR) was prepared. A site plan (Ex. PS) was also prepared and statements of witnesses including Mubarak Ali (PW10) and Yahya Khan (PW7) were recorded. A blood stained newspaper (Punjab Kesari) was found lying near the dead body with the name Sonu written on it. Some hair were also found stuck on the newspaper which was taken into possession and eventually sent to the Forensic Science Laboratory for matching the hair found on the newspaper with the specimen of the hair of the accused/appellant obtained under orders of the Court. Post-mortem of the dead body was conducted by a team consisting of Dr. Dara Singh (PW4). Thereafter, the accused/appellant Sonu was arrested on 30.11.1999 who produced a blood stained Kameej which was taken into possession by the Police vide Ex. PU. According to the prosecution, in the course of interrogation, the accused/appellant made a disclosure statement (Ex. PL) on the basis of which a Chunni allegedly used in the crime was recovered i.e. Ex. P13. The Chunni was produced before the doctor on 03.12.1999 and the opinion of the doctor (Ex. PV/1) dated 06.12.1999 was to the effect that strangulation could have been done with the help of the said Chunni. Thereafter, on completion of investigation the accused/appellant was challaned under Section 302 of the Indian Penal Code. The said offence being exclusively triable by the Court of Sessions, the case was committed for trial to the Court of learned Sessions Judge, Faridabad which was entered and endorsed to the file of the learned Additional Sessions Judge (Adhoc), Fast Track Court, Faridabad. 4. In the trial Court charge under Section 302 of the Indian Penal Code was framed against the accused/appellant to which she pleaded not guilty and claimed to be tried. In the course of the trial 12 witnesses were examined by the prosecution and none by the defence. The statement of the accused/appellant was recorded under Section 313 of the Code of Criminal Procedure wherein she stated that she has been falsely implicated in the crime. In the course of the trial 12 witnesses were examined by the prosecution and none by the defence. The statement of the accused/appellant was recorded under Section 313 of the Code of Criminal Procedure wherein she stated that she has been falsely implicated in the crime. Thereafter, at the conclusion of the trial, the accused/appellant has been convicted and sentenced as aforesaid. Aggrieved, this appeal has been filed. 5. It will be appropriate, at this stage, to briefly notice the core of the evidence adduced by the prosecution witnesses in this case. PW1, Inderjeet, is the photographer who took photographs of the place of occurrence and the dead body. PW2, Rakesh Singh, is the Judicial Magistrate under whose orders sample of the hair of the accused/appellant was obtained by the prosecution and sent for forensic examination. PW3, Partap Singh, Sub Inspector of Police had registered the FIR. PW4, Dr. Dara Singh, was one of the doctors in the team that had conducted the autopsy of the dead body. The findings of the post-mortem as per the post-mortem report (Ex. PE) being relevant may be extracted below:- “A ligature mark over the neck on the thyroid cartilage ranging from 2 to 4 cm in width extending upto back of the neck on the right side was found. On the left side it was upto angle of mendible. The mark was less prominent after the angle. It extended upto back of the neck and was encircling the neck. Abrasion and echymosis were present over the edges of mark on the right side. The base grove was hard, dry and reddish in colour. There was echymosis of face, lips and peripheries of face were congested. It was the body of a well nourished male wearing grey pent. Rigor mortis was present, eyes were semi opened. There was incised wound of 1 cm over the ventral aspect of the right little finger and clotting of blood was present.” 6. The evidence of PW5, Shiv Kumar, not being very relevant the same is not being dealt with. PW6, Manoj Kumar, is the Draftsman who had prepared the site plan. PW7, Yahya Khan, did not support the prosecution case and stated that he had not seen the accused/appellant coming out of the room of the building on the night of the occurrence in a perplexed condition. PW6, Manoj Kumar, is the Draftsman who had prepared the site plan. PW7, Yahya Khan, did not support the prosecution case and stated that he had not seen the accused/appellant coming out of the room of the building on the night of the occurrence in a perplexed condition. In his crossexamination by the Public Prosecutor he specifically denied that on 27.11.1999 he had accompanied Bali Mujamma (PW11) to Delhi and had stated that he had gone to the said place alongwith his wife and children. He had specifically denied in his cross-examination by the Public Prosecutor that he had stated before the Police that he alongwith, Bali Mujamma (PW11), after having returned from Delhi had got down at Azronda turning and from there while coming towards Parwatia Colony on foot they had seen the accused/appellant coming out of a building in a perplexed condition. The attention of PW7 to the relevant part of his statement made before the Police (Ex. PJ) to the above effect was drawn. PW8 is the first informant. This witness was also declared hostile by the prosecution and cross-examined by the Public Prosecutor. In crossexamination he had denied that the Police had taken possession of a newspaper having some hair and blood stains on it from the room where the occurrence took place. However, he had largely supported the version narrated by him in his statement before the Police (Ex. PD) and also the recovery of a Chunni at the instance of the accused/appellant. 7. PW9, Vinod, is the owner of an STD booth whose evidence need not be dealt with in details. PW10, Mubarak Ali, in his deposition had stated that on 27.11.1999 at about 10.00 PM while going to the hospital with food for his brother who was admitted there with a fracture he had seen the deceased Ateeq Ahmad and the accused/appellant near the Dusshera ground. In cross-examination he had denied making a statement before the Police that he had seen the accused/appellant and Ateeq Ahmad going upstairs (to a room). The witness was confronted with the relevant part of his statement made before the Police (Ex. DA). 8. PW11, Bali Mujamma, in his deposition had stated that on 27.11.1999 he alongwith PW7, Yahya Khan, was returning from Delhi at about 2.00/2.30 AM (after mid-night). The witness was confronted with the relevant part of his statement made before the Police (Ex. DA). 8. PW11, Bali Mujamma, in his deposition had stated that on 27.11.1999 he alongwith PW7, Yahya Khan, was returning from Delhi at about 2.00/2.30 AM (after mid-night). According to this witness, both he and PW7 got down at Azronda turn and while going on foot, near Neelam Cinema, they had seen the accused/appellant running after coming out of building No. 491. According to this witness, the accused/appellant was in a perplexed condition. In cross-examination, this witness had stated that a friend of his brother was admitted in the Escorts Hospital on account of a fracture of the leg and that he alongwith, PW7, Yahya Khan, had gone to the Escorts Hospital to see the injured person. PW12, Ramesh Pal, Inspector of Police is the Investigating Officer of the case who has proved the different steps taken in the investigation of the case. 9. Apart from the above oral evidence, the prosecution had introduced in evidence the report of the Forensic Science Laboratory i.e. (Ex. PX/1) with regard to the analysis of the samples of clothes, the newspaper containing blood as well as the analysis as to whether the sample of the hair of the accused/appellant matched with the hair that was found on the newspaper. 10. A reading of the evidence adduced by the prosecution, details of which have been noticed above, would go to show that there are no eye-witnesses to the occurrence. The prosecution case, therefore, rests entirely on circumstantial evidence. The learned trial Court on a consideration of the evidence on record found that the prosecution case revolves around the following circumstances:- (a) Deceased last seen in the company of the accused. (b) Accused seen running after coming out of the building in which murder was committed. (c) The recoveries and presence of blood on the Kameej of the accused got recovered by her and presence of hairs on the piece of newspaper. (d) The tallying of sample hairs of the accused with the hairs found at the spot. 11. (b) Accused seen running after coming out of the building in which murder was committed. (c) The recoveries and presence of blood on the Kameej of the accused got recovered by her and presence of hairs on the piece of newspaper. (d) The tallying of sample hairs of the accused with the hairs found at the spot. 11. While the learned trial Court was correct in identifying the circumstances on which the prosecution relies, it will be the duty of this Court to now analyze as to whether any or all the said circumstances have been proved and if so whether the proved circumstances point to only one conclusion namely that it is the accused/appellant and nobody else who had committed the crime. Only if the aforesaid conclusion can flow from the proved circumstances of the case the conviction of the accused/appellant can be sustained. 12. The prosecution has relied on the evidence of PW10, Mubarak Ali, to prove that the accused/appellant and the deceased were last seen in the company of each other. The time when PW10 claims to have seen the accused/appellant and the deceased together is 10.00 PM of 27.11.1999. The dead body of the deceased was recovered at 10.00 AM in the next morning. In his deposition in Court PW10, however, had stated that he had seen the accused/appellant and the deceased together near the Dusshera ground. In cross-examination, PW10 insisted that he had informed the Police that he had seen the two together near the Dusshera ground and he had not stated before the Police that he had seen the accused/appellant and Ateeq Ahmad, deceased, going upstairs. However, in his statement before the Police (Ex. DA) it is recorded that PW10 had stated before the Police that he had seen the two going upstairs. This witness, therefore, stands contradicted on a very material point with reference to his statement made before the Police. PW10 is the only witness examined by the prosecution to prove that the accused/appellant and the deceased were last seen in the company of each other. In a situation when PW10 had been contradicted on a material aspect of the case and there is no further evidence forthcoming, we are inclined to take the view that the circumstance of last seen together sought to be proved by the prosecution has not been established. 13. In a situation when PW10 had been contradicted on a material aspect of the case and there is no further evidence forthcoming, we are inclined to take the view that the circumstance of last seen together sought to be proved by the prosecution has not been established. 13. The next circumstance i.e. that the accused/appellant was seen coming out of building No. 491 at about 2.00/2.30 AM in a perplexed condition is sought to be proved by the prosecution on the basis of the evidence of PW7, Yahya Khan and PW11, Bali Mujamma. PW7 did not support the prosecution case and in fact stated that the story of his going to Delhi alongwith PW11 and after returning from the said place at about 2.30 AM in the morning he had seen the accused/appellant coming out of a building, is not correct. PW11 on the other hand though had supported the prosecution case had stated that after returning from Delhi he had gone to the Escorts Hospital to see a friend of his brother who had suffered a fracture. The reason for the visit of PW11 to the hospital in the course of which he claims to have seen the accused/appellant coming out of building No. 491 is not acceptable at all. There is no earthly reason why a person would visit a hospital to see a person who has suffered a fracture at about 2.00/2.30 AM. That apart, the version of PW10 is that he had gone to the hospital after returning from Delhi alongwith PW7. PW7 has denied the said fact. In such a situation the Court is of the view that the second circumstance sought to be established by the prosecution cannot be held to be proved. In so far as the presence of blood stains on the Kameej of the accused/appellant is concerned, the Forensic Science Laboratory’s report clearly indicates that no final opinion on the blood stains i.e. whether the same are human blood could be given as the material had disintegrated. That apart, the aforesaid version of the prosecution case stands largely belied by the evidence of PW4, Dr. Dara Singh, who had stated that death was caused as a result of asphyxia by strangulation and there was only one incised wound of 1 cm on the right little finger which was skin-deep. 14. That apart, the aforesaid version of the prosecution case stands largely belied by the evidence of PW4, Dr. Dara Singh, who had stated that death was caused as a result of asphyxia by strangulation and there was only one incised wound of 1 cm on the right little finger which was skin-deep. 14. The next circumstance i.e. that the sample of the hair of the accused/appellant had matched with those recovered from the newspaper can be taken to have been proved by the prosecution on the basis of the evidence adduced. However, the said fact, by itself, cannot establish the culpability of the accused/appellant beyond all reasonable doubt unless the prosecution also establishes the fact that the hair of the accused/appellant that were found embedded in the newspaper was so embedded at the time or around the time when the occurrence took place. 15. That apart, the Court cannot be oblivious of the fact that the prosecution case against the accused/appellant is one of commission of murder by strangulation with the Chunni (Ex. P13). In the absence of any evidence to indicate that the deceased was rendered helpless and was not in a position to resist it will be difficult for the Court to accept that an able bodied male could have been strangulated by the accused/appellant and that too with the Chunni that she was wearing. 16. For all the aforesaid reasons, we are of the view that the prosecution has not succeeded in establishing the case brought against the accused/appellant. We, therefore, set aside the conviction ordered by the learned trial Court and the sentence imposed and acquit the accused/appellant. 17. The accused/appellant is on bail. Her bail bond shall stand accordingly discharged. 18. Appeal, consequently, is allowed as indicated above. ------------------