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2002 DIGILAW 62 (PNJ)

Sanjay Mittal v. State Of Haryana

2002-01-10

AMARBIR SINGH GILL, SWATANTER KUMAR

body2002
Judgment Amar Bir Singh Gill, J. 1. Appellant Sanjay Mittal assails in this appeal the judgment of his conviction and sentence dated 30.10.2000 and 31.10.2000 respectively passed by Additional Sessions Judge, Ambala holding him guilty of murder of Devinder Pal Singh and sentencing him to imprisonment for life and to pay a fine of Rs. 5000/-. In default of payment of fine, the appellant further to undergo rigorous imprisonment for one year. 2. The appellant was prosecuted on the allegation that on 12.7.1994, at about 9.30 p.m., he along with one Amit Kaushal came to the house of Devinder Pal Singh and took him along to celebrate his (appellant) birth day. Then Devinder Pal Singh did not return, his wife Kuldip Kaur searched for him. Next day, she came to know that dead body of one Sunil Kumar was found in Sadar Bazar who died by poisoning. She became apprehensive and came to Rajpura to his brother Jagmohan Singh PW9 and informed that Devinder Pal Singh was taken away by the appellant who did not return home. He then accompanied her to Ambala Cantt, and on enquiry came to know that the appellant was residing on the first floor (Chaubara) of the house of Puran Chand PW4. They went at the house of the appellant where they found that door of the room was locked from outside and through one of the windows, they noticed the legs on the floor. Leaving behind Kuldip Kaur and Puran Chand PWs, he came to the police station and lodged First Information Report. The police accompanied him. The police broke open the lock and found the dead body of Devinder Pal Singh lying in the room which was identified by both Kuldip Kaur and Jagmohan Singh PWs. Inquest report Exhibit PX/1 was prepared and body was sent for post mortem examination. The doctor preserved viscera from the dead body and sent the same for chemical examination and on receipt of the report Exhibit PB, the doctor gave his opinion that the deceased died of organo phosphorous poisoning. On the same day, dead body of Sunil Kumar was found lying in Sadar Bazar which on post mortem examination as well as on the report of the Chemical Examiner confirmed death by organo phosphorous poison. On the same day, dead body of Sunil Kumar was found lying in Sadar Bazar which on post mortem examination as well as on the report of the Chemical Examiner confirmed death by organo phosphorous poison. The appellant as well as Amit Kaushal were arrested in connection with the murder of both Devinder Pal Singh and Sunil Kumar. The police also took into possession plate Exhibit P-4 from the Chaubara of the appellant which on chemical examination was found to contain organo phosphorous poison. After his arrest, the appellant is stated to have suffered disclosure statement in the presence of Dharambir and Head Constable Jawahar Singh and produced from his Chaubara a glass phial containing some powder which was confirmed from the chemical examination report later on as organo phosphorous poison. Amit Kaushal, the other accused, during investigation is stated to have made a disclosure statement and accordingly got recovered powder from his possession which on chemical examination was found organo phosphorous poison. The appellant along with Amit Kaushal denied charge under Section 302 read with Section 34 of the Indian Penal Code of having committed the murders of Sunil Kumar and Devinder Pal Singh in furtherance of their common intention. 3. At the trial, the prosecution witnesses did not support of the case against Amit Kaushal and as such he was acquitted of the charge. There is no appeal against his acquittal. 4. In order to bring home the charge against the appellant, the prosecution mainly relied upon the testimony of Puran Chand PW4, Kuldip Kaur PW8, Jagmohan Singh PW9, Head Constable Jawahar Singh PW11, Banwari Lal PW12, besides the statement of Dr. P.S. Ahuja PW1. Jagmohan Singh PW9 proved the FIR Exhibit PS and related the sequence of events leading to the recovery of dead body. As per his statement, Kuldip Kaur had come to his house on 13.7.1994 and informed that the appellant had taken the deceased alongwith him last night and her husband did not return thereafter. He stated that the dead body of Devinder Pal Singh was recovered by the police from the Chaubara of the appellant in his presence and he had attested the recovery of plate Exhibit P-4 containing some powder. He also stated that he had known the appellant who was a visitor to the house of the deceased. He stated that the dead body of Devinder Pal Singh was recovered by the police from the Chaubara of the appellant in his presence and he had attested the recovery of plate Exhibit P-4 containing some powder. He also stated that he had known the appellant who was a visitor to the house of the deceased. When he happened to come to Ambala, he had seen the appellant at the house of the deceased. Kuldip Kaur PW8 also stated that her husband was doing hosiery business and the appellant was well known to her husband. On 12.07.1994, at about 9.30 p.m., appellant Sanjay Mittal alias Sonu had come to her house and had taken alongwith him her husband Devinder Pal Singh to celebrate his birthday in his house. Her husband did not return thereafter. She searched for her husband and thereafter came to know that one Sunil Kumar was murdered by poison. Then she came to her brother Jagmohan Singh PW9 at Rajpura and brought him along, reached the house of the appellant and found the dead body of her husband Devinder Pal Singh who was lying in the locked room of the appellant. Jagmohan Singh then went to inform the police. The police broke open the lock and recovered the dead body of Devinder Pal Singh from there. She also stated that her husband and the appellant were doing hosiery business together for about 3-4 months. Puran Chand PW4 stated that he rented his Chaubara to Sonu alias Sanjay Mittal at the rate of Rs. 550/- per month. The stairs to his Chaubara were from the backside of his house and the appellant had independent access to the rented Chaubara from the backside lane of his house. Kuldip Kaur and her brother Jagmohan Singh came to his house and he then accompanied them to the room of the appellant and noticed the legs of a person on the floor. Thereupon, the police was informed and got opened the locked room and removed the dead body of Devinder Pal Singh from there. Head Constable Jawahar Singh PW11 stated that the appellant was interrogated in his presence who suffered disclosure statement Exhibit PN to the effect that he had kept concealed poison in a phial of glass in his house. Thereupon, the police was informed and got opened the locked room and removed the dead body of Devinder Pal Singh from there. Head Constable Jawahar Singh PW11 stated that the appellant was interrogated in his presence who suffered disclosure statement Exhibit PN to the effect that he had kept concealed poison in a phial of glass in his house. His statement was attested by him and Dharambir PW and in accordance with his statement, the appellant produced the glass phial from his house which was taken into possession in a sealed parcel. Banwari Lal Inspector PW12 submitted report under Section 173 of the Code of Criminal Procedure in this case against the appellant and his co-accused and also identified the handwriting and signatures of Harpal Singh Inspector (since dead) on various documents prepared by him during the investigation of this case. 5. In his statement under section 313 of the Code of Criminal Procedure, the appellant denied all the allegations appearing in the prosecution evidence against him and claimed innocence. He stated that he had no motive to commit the murder of Devinder Pal Singh. He also produced in evidence Rakesh Kumar DW2 and Ghasita Singh DW3, Clerk of Municipal Committee, Ambala Cantt. 6. Heard learned counsel for the appellant and the State counsel. 7. The conviction and sentence of the appellant is based on entirely circumstantial evidence which consists mainly of deceased last seen in the company of the appellant; recovery of the dead body from the room of appellant; recovery of poisonous material from his possession; and cause of death of Devinder Pal Singh deceased with the poison of same kind. The settled principle of appreciation of evidence in a criminal trial in which conviction of an accused person is sought entirely on circumstantial evidence is to see if the circumstantial evidence fulfil the following essential ingredients :- (i) the circumstances from which the conclusion is to be drawn have been fully proved; (ii) if the circumstances are of conclusive in nature; and (iii) the circumstances so proved must provide a chain of facts which are consistent only with the hypothesis of guilt and inconsistent with the innocence of the accused. 8. Applying these test on the case in hand, we find that the prosecution has not been able to bring home the guilt to the appellant beyond every shadow of doubt. 9. 8. Applying these test on the case in hand, we find that the prosecution has not been able to bring home the guilt to the appellant beyond every shadow of doubt. 9. The last seen evidence against the appellant consists of the testimony of Kuldip Kaur PW8 who is the widow of the deceased and, according to her, on the night of 12.07.1994 appellant Sanjay Mittal alias Sonu and Amit Kaushal (since acquitted) who were well known to her husband had come to their house and taken her husband Devinder Pal Singh along with them in order to celebrate the birthday of the appellant in his house. When her husband did not return, she tried to search for her husband and came to know that one Sunil Kumar had been murdered by poisoning. Then she went to her brother Jagmohan Singh at Rajpura. She also stated that the dead body was recovered from the Chaubara in the house of Puran Chand PW. The statement of this witness is full of improvements on her previous statement, copy of which is Exhibit DA. The appellant is not described as Sanjay Mittal, neither she mentioned name of Amit Kaushal in her statement Exhibit DA. It is only stated that one Sonu came to the house. There is no mention if said Sonu was doing any business with her husband and much less if the deceased was dealing with any hosiery business. She no where stated if there was any dispute between Sonu and the deceased. She stand fully confronted with her statement Exhibit DA with all material particulars. It would be seen that the house of deceased as well as the house of Puran Chand PW from where the dead body of Devinder Pal Singh was recovered and the appellant was stated to be living there was in the same Mohalla. In case the deceased had not returned to the house in the night and if the appellant was a daily visitor or friend of the deceased and was living in the same Mohalla, obviously Kuldip Kaur PW would have rushed to the house of the appellant or had informed any one that the deceased had gone in the company of the appellant. Even next morning, she did not complain against the appellant and did not contact any person or the police or searched for her husband in the house of the appellant. Even next morning, she did not complain against the appellant and did not contact any person or the police or searched for her husband in the house of the appellant. She instead went to Rajpura 25 Kms from Ambala to contact her brother Jagmohan Singh PW. Her conduct and improvements made in her statement before the Court, in the circumstances, creates a doubt in her veracity as a witness. 10. There is no other statement of any witness to support that the deceased was seen in the company of the appellant earlier to his death. There is also no evidence if anybody had seen the appellant and the deceased together thereafter going to the house from where dead body was recovered. Even otherwise, last seen evidence by itself does not prove if the appellant had committed the murder. Supreme Court in its decision in the case reported as Lakhanpal v. The State of Madhya Pradesh, AIR 1979 S.C. 1620, observed as under :- "In prosecution for offence of murder the mere fact that the accused and the deceased (the real brother of the accused) were together in the field prior to the occurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased." 11. Moreso, the last seen evidence given by Kuldip Kaur says that deceased had accompanied the appellant and Amit Kaushal. The evidence thus was against both appellant and Amit Kaushal and the same evidence has been rejected against Amit Kaushal. Supreme Court in the case of Pohalya Motya Valvi v. State of Maharashtra, AIR 1979 S.C. 11949, in appreciating such evidence held as under :- "Ordinarily, when a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character. But where two accused were last seen with the deceased and though both should explain the disappearance of the deceased, one of them is acquitted of the charge of murder and no appeal is filed against his acquittal, the very circumstance that the deceased was last seen with them ceases to be of an incriminating character and the other accused cannot also be convicted solely on that basis." 12. Jagmohan Singh PW9, who is brother of Kuldip Kaur PW8, no doubt, has stated that he has seen the appellant with the deceased many times in the house of the deceased but he too was unable to say as to when on a particular date or month he happened to see the deceased in the company of the appellant and admitted that he had never heard what was the conversation between the two. He does not say if the deceased was dealing with hosiery business or if the appellant had nay connection with him as a partner. If he had known the appellant earlier or had seen on various occasions present with the deceased in the house of his sister, it is not expected of him to say nothing as to how and in what manner the appellant had any connection with the deceased or if there was any ill-will between the two. 13. The First Information Report in this case, which is stated to have been lodged by Jagmohan Singh PW9 in the police station, appears to be prepared only after the recovery of the dead body of Devinder Pal Singh since it has specifically come in the statement of Jagmohan Singh that FIR Exhibit PS was recorded after the police had recovered the dead body from the Chaubara of the house of Puran Chand and was recorded at the spot and not in the police station. Moreso, FIR Exhibit PS, which according to the case was recorded in the police station, refers to the breaking open of the door by Jagmohan Singh himself and having found the dead body of Devinder Pal Singh lying therein and thereafter he had came to lodge the FIR which is altogether contrary to the statement made by Kuldip Kaur PW8 as well as by Jagmohan Singh PW9 who is author of the FIR and Puran Chand PW4 who all stated that the police had come and broken lock and handle of the outer door of the room and thereafter dead body of Devinder Pal Singh was found lying. PW4 Puran Chand does not support prosecution that Jagmohan Singh PW had gone to police station and brought the police. According to him, Rajiv Kumar and one Sethi from the Mohalla informed police on telephone and the police came there. PW4 Puran Chand does not support prosecution that Jagmohan Singh PW had gone to police station and brought the police. According to him, Rajiv Kumar and one Sethi from the Mohalla informed police on telephone and the police came there. The very foundation of the case i.e. the FIR if recorded after the police visited the place of recovery of dead body, became highly doubtful. The FIR Exhibit PS was recorded at 5.00 p.m. and the place of recovery of dead body is shown only 1-1/2 Km. from the police station in the FIR. Due deliberations and making out a case of murder cannot thus be ruled out in this case. The absence of recovery of lock and handle further belies the case that the room from which dead body was recovered was locked from outside. It further implies that when the police came, the dead body was not confined in a locked room. 14. Lastly, if it was the rented room of the appellant from where the dead body was recovered. It has come in the statement of PW4 Puran Chand, that he had rented the upper floor of the house to the appellant at a monthly rent of Rs. 550/-. However, there was no rent note nor he issued any receipt of the rent taken from the appellant. He stated that his house bears house tax No. 5772/1 which is in the name of her mother Kaushalya Devi and the house tax bills are received in the name of his mother Kaushalya Devi and the receipts issued by the Municipal Committee of the house tax are also in her name. 15. Ghasita Ram DW3, Clerk from the Municipal Committee, produced the record and stated therefrom that house No. 5772/1, Palledar Mohalla, Ambala Cantt. is in the name of Rajinder Kumar s/o Ram Sarup and the house tax is paid by said Rajinder Kumar. He also proved the certificate Exhibit DW3/1 issued by the Tax Superintendent in this respect. There is no other evidence to show if the room in question was on rent with the appellant. The identity of the house/room from which the dead body was recovered to be in possession of the appellant, in the circumstances, is not convincing and beyond doubt since the house bearing No. 5772/1 is found to be of Rajinder Kumar and of Puran Chand or his mother Kaushalya Devi. The identity of the house/room from which the dead body was recovered to be in possession of the appellant, in the circumstances, is not convincing and beyond doubt since the house bearing No. 5772/1 is found to be of Rajinder Kumar and of Puran Chand or his mother Kaushalya Devi. The trial Court wrongly observed, while ignoring the statement of DW3 Ghasita Ram, that Puran Chand PW4 gave different number of his house which is not so. Puran Chand PW specifically gave the number of his house as 5772/1. 16. The recovery of poisonous powder i.e. glass phial containing organo phosphorous from the possession of the appellant and on his disclosure statement is also not proved. Dharambir PW6 has not supported the disclosure statement much less recovery of any glass phial from the possession of the appellant at his instance. Head Constable Jawahar Singh PW11 admitted in his cross-examination that before effecting the recovery no neighbour was called nor the owner of the house was called. He could not say the number of the house visited along with the appellant for the purpose of recovery. The recovery of plate Exhibit P-4 containing the powder material cannot be connected with the appellant as well as since no effort was made by the police to preserve the finger prints on the same and allegedly it was found in the room from where the dead body was recovered. 17. It is also to be seen that the appellant along with one Amit Kaushal were both charged under Section 302 read with section 34 of the Indian Penal Code, for committing the murder of Devinder Pal Singh. There is no evidence if these two had inter se any friendship or wee ever seen together. Since both the appellant and Amit Kaushal were accused of committing the murder of Devinder Pal Singh in furtherance of their common intention, it is not established on the record if the appellant alone was responsible for the murder, neither it is established that it was in furtherance of the common intention with Amit Kaushal. Since there is no allegation of any motive with appellant or with Amit Kaushal to commit murder of Devinder Pal Singh, there cannot be any presumption if appellant had any occasion to have formed common intention with Amit Kaushal for the crime. 18. The medical evidence i.e. the statement of Dr. Since there is no allegation of any motive with appellant or with Amit Kaushal to commit murder of Devinder Pal Singh, there cannot be any presumption if appellant had any occasion to have formed common intention with Amit Kaushal for the crime. 18. The medical evidence i.e. the statement of Dr. P.S. Ahuja, PW1, unmistakably confirms that organo phosphorous is a poison of pungent smell. It has to be administered, if at all, in some liquid. In the circumstances, if the poison has a very pungent odour, no person is likely to take it from another unless he takes the same on his own to commit suicide. It the poison was of such a nature, a person is not likely to accept or take it from anybody. It can either be administered forcibly to cause the death of the person but in such circumstances there has to be some struggle by the victim to resist the administration of such a poison with such a pungent smell being unwholesome to take. Even it if be taken that the poison was administered against the will and consent of the appellant, no mark of struggle on the body or clothes of the deceased were noticed at the time of post mortem. The police did not recover nor took into possession any glass or utensil which could be used to drink the poison mixed with some material. Nor there is any evidence if the same was administered in alcohol. The report of Chemical Examiner does not mention if viscera also contained alcohol. In the circumstances, possibility cannot be ruled out that the deceased may have taken his life himself. 19. The appellant, admittedly belongs to Dehradun. His full name as Sanjay Mittal was disclosed only in the court and not before the police and the name of the person who had taken the deceased along with him was described only as Sonu. In his statement under Section 313 of the Code of Criminal Procedure, the appellant had totally denied if he has any alias name of Sonu. No witness has been produced to corroborate if the appellant has any such name of Sonu. 20. In cases consisting of circumstantial evidence against the accused to prove his guilt, the motive and conduct evidence assumes vital link in the chain of circumstances against an accused person. No witness has been produced to corroborate if the appellant has any such name of Sonu. 20. In cases consisting of circumstantial evidence against the accused to prove his guilt, the motive and conduct evidence assumes vital link in the chain of circumstances against an accused person. There has to be some motive for the appellant to commit the murder of Devinder Pal Singh. However, in this case none is disclosed by any of the witnesses earlier to the trial. Even Kuldip Kaur PW8 did not state that the appellant had any ill will against her husband. The relevance of motive in a case resting only on the circumstantial evidence has been highlighted by the Supreme Court in its decision in the case reported as State (Delhi Administration) v. Gulzarilal Tandon, AIR 1979 Supreme Court 1382, and the Apex Court held as under :- "In cases where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in the order to tilt the scale against the accused....." 21. A Division Bench of this Court in the case of Kuldip Sham v. State of Punjab, 1980 Crl.L.J. 71, also observed as under :- "Where there is no eye-witness to the occurrence and the prosecution evidence comprises of only circumstantial evidence, the motive and the conduct of the accused are not only relevant but are of paramount importance in order to establish the guilt against him." There is no evidence if appellant was absconding after the alleged occurrence or was evading arrest. His conduct also is in consonance with his innocence. 22 In the light of the facts and circumstances of the case discussed above, the evidence adduced at the trial against the appellant, the circumstances sought to be proved against the appellant, are not of incriminating nature much less proved independently. These also do not form a chain so as to connect one circumstance with the other and ultimately connecting the circumstances with the hypothesis that in all probability it was the appellant who committed the crime. The prosecution has not been able to bring home guilt to the appellant. This appeal is allowed. The appellant is acquitted of the charge of murder of Devinder Pal Singh. He shall be set as liberty forthwith if not detained in any other case. Appeal allowed.