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2009 DIGILAW 2455 (RAJ)

Harpal Singh v. State of Rajasthan

2009-11-26

A.M.KAPADIA, DEO NARAYAN THANVI

body2009
JUDGMENT 1. - This appeal is directed against the judgment of the. learned Additional District and Sessions Judge No. 1, Hanumangarh dated 5.12.1986 in Sessions Case No. 81/1985, whereby he convicted the accused appellants Harpal Singh, Chindha Singh and Paramjit Singh under Sections 302 and 201 Indian Penal Code. All the three accused were convicted under Section 302 Indian Penal Code. and were sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-each. They were also convicted under Section 201 Indian Penal Code. and sentenced to undergo simple imprisonment for 3 years and to pay a fine of Rs. 100/- each and in default of payment of fine for each offence, they were ordered to undergo two month's simple imprisonment. Both the sentences were ordered to run concurrently. 2. The facts leading to this appeal are that on 9.7.1985 at 10 A.M. Mangturam (PW-10), father of the deceased Peerdan, made an oral report at the Police Station Sangaria that his son Peerdan, aged 24 years, was working in the workshop of Sohanlal as Mistri. On 25.6.1985 he went to the workshop as usual, but did not return from work. He waited for his son Peerdan for two days and then went to the workshop at Sangaria, where he enquired from the younger and elder son of Sohanlal about Peerdan. Other Mistries of the workshop also did not give any information. Then he searched him for 11-12 days here and there and then he was told by someone to lodge report at the Police Station regarding missing of his son and also search in the canal. He searched his son in the canal and found the decomposed dead body of Peerdan in the Sardarpura area of Police Station Lalgarh. He and Maniram identified the body. 3. Upon this report, enquiry was made under Section 174 of the Indian Penal Code. Postmortem of the dead body was conducted and in the postmortem report, it was found that there were injuries on the body and ribs were fractured, therefore, a case under Sections 302 and 201 Indian Penal Code. was registered on 17.7.1985 vide Ex.P-10. Site plan was prepared. All the three accused were arrested on 24.7.1985 and upon the information of Paramjit Singh (Ex.P-15) on 30.7.1985, the cloths of the deceased were recovered vide Ex.P-15 from the house of Paramjit Singh. was registered on 17.7.1985 vide Ex.P-10. Site plan was prepared. All the three accused were arrested on 24.7.1985 and upon the information of Paramjit Singh (Ex.P-15) on 30.7.1985, the cloths of the deceased were recovered vide Ex.P-15 from the house of Paramjit Singh. Clothes of the deceased were put for identification parade vide Ex.P-8 before the Judicial Magistrate, Hanumangarh. During the investigation, Dileep (PW-5) was examined before whom an extra judicial confession was made by all the three accused with regard to throwing Peerdan in the canal on fighting after drinking liquor. The witnesses of last seen were also examined and thereafter all the three accused were challenged under Sections 302 and 201 Indian Penal Code. before the Court of Judicial Magistrate, Sangaria, who committed the case to the Court of Sessions. Learned Sessions Judge framed charges against the accused for the said offences, to which they pleaded no guilty. The prosecution examined 11 witnesses, statements of the accused were recorded under Section 313 of the Criminal Procedure Code The accused led no defence. After hearing the arguments, learned trial Judge convicted the accused appellants and sentenced them as above. 4. It is contended by learned counsel for the accused appellants that the witnesses of last seen are hostile and from the medical evidence it is not proved that the dead body so recovered from the canal was of the deceased Peerdan which can be gathered from the details narrated in the postmortem report (Ex.P-3). He has also submitted that the extra judicial confession before Dileep is concocted story as he did not inform the police about the murder of the deceased for six days, till 29.7.1985, whereas the extra judicial confession is alleged to have been made before him on 23.7.1985. According to the learned counsel, the recovery of cloths is also doubtful because the cloths were already seen by the father of the deceased Mangturam (PW-10) in the workshop itself. According to the learned counsel, the judgment of the learned trial Court is based on conjectures and surmises, which cannot be sustained in the eye of law. 5. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 6. We have heard the arguments made by Mr. Ashok Upadhyay, learned counsel for the accused-appellants and Mr. K.R. Bishnoi, learned Public Prosecutor and gone through the record of the case carefully by re-appreciating the evidence. 5. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 6. We have heard the arguments made by Mr. Ashok Upadhyay, learned counsel for the accused-appellants and Mr. K.R. Bishnoi, learned Public Prosecutor and gone through the record of the case carefully by re-appreciating the evidence. 7. The witnesses of the last seen are Subhash (PW-1) and Mohan Singh (PW-2). Both of these witnesses have turned hostile. The next important evidence, upon which the prosecution has relied upon, is the evidence of Dileep (PW-5), before whom the extra judicial confession is alleged to have been made by all the three accused appellants on 23.7.1985. According to this witness, on that day, he was standing at Bus Stand Sangaria, then all the three accused came and told that they alongwith Peerdan took liquor and went to the canal for bathing. There they started fighting and threw Peerdan in the canal. According to him, they admitted their guilt and asked for compromise with the father of the deceased Peerdan. Thereafter he went in the jeep towards Vyas taking passengers. He came back on 29.7.1985 and informed to the police. This version of Dileep is totally unreliable because according to him, Peerdan was his real nephew, i.e. his sister's son and when father of Peerdan, i.e. his brother-in-law, namely, Mangturam (PW-10) was searching for his son right from 27.6.1985, i.e. two days after his missing, then it cannot be believed that Dileep remained silent for such a considerable period for six days before narrating the story of extra judicial confession to his brother-in-law Mangturam (PW-10), who was searching the deceased since 27.6.1985, that Peerdan has been murdered by the accused-appellants, especially when he has admitted in his cross-examination that the Police Station is hardly one furlong away from the place where the extra judicial confession was made. According to him, he did not narrate this fact to the police because the accused were his friends. This conduct of the Dileep shows that he narrated the story to the police about the extra judicial confession when the accused were already arrested and recovery is said to have been made from them, therefore, recording the conviction on the basis of such type of weak and unreliable evidence cannot be sustained. 8. Next is the evidence of recovery of cloths, which have been identified before the Magistrate vide Ex.P-8. 8. Next is the evidence of recovery of cloths, which have been identified before the Magistrate vide Ex.P-8. This recovery of cloths Ex.P-5 is based on the information of the accused Paramjit Singh (Ex.P-15) with regard to watch, cloths and identity card found at the residence of Paramjit Singh, but on the basis of the statement of Mangturam (PW-10), the Investigating Officer came to know that the cloths of the deceased are lying at the bus stand, he went to the bus stand on 18.5.1985, but did not find the cloths there. In this regard, Mangturam (PW-10), father of the deceased, has stated that he found the cloths of his son in the bus. This shows that when the clothes were already seen by the father of the deceased at the Bus Stand and the Investigating Officer also came to know that the cloths of the deceased are lying at the Bus Stand, then the recovery of these cloths of the deceased on the information of the accused at his residence shows that the police has fabricated the evidence of recovery, which cannot be sustained in the eye of law. The discovery of a fact or article is only relevant to the extent of the information furnished in this regard by virtue of Section 27 of the Evidence Act. 9. Except the aforesaid recovery, extra judicial confession and last seen, there is no other evidence to connect the accused with the commission of crime. The learned trial Judge has mis-appreciated the circumstantial evidence while holding the accused-appellants guilty under Sections 302 and 201 Indian Penal Code., especially when the dead body, as per the postmortem report, was decomposed. We are, therefore, unable to agree with the finding of guilt of the accused-appellants arrived at by the learned trial Judge. 10. Consequently, we allow this appeal and set aside the judgment of the learned Additional District and Sessions Judge No. 1, Hanumangarh dated 5.12.1986 passed in Sessions Case No. 81/1985, convicting the accused-appellants and sentencing them for the offence under Section 302 Indian Penal Code. with life imprisonment and a fine of Rs. 100/- each and for the offence under Section 201 Indian Penal Code. with simple imprisonment of three years and a fine of Rs. 100/- each and in default of payment of fine for each offence to undergo simple imprisonment of two months. with life imprisonment and a fine of Rs. 100/- each and for the offence under Section 201 Indian Penal Code. with simple imprisonment of three years and a fine of Rs. 100/- each and in default of payment of fine for each offence to undergo simple imprisonment of two months. We accordingly acquit all the three accused-appellants for the charges levelled against them. They are on bail. Their bail bonds stand cancelled.Appeal allowed. *******