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2010 DIGILAW 3352 (PNJ)

Makhan Singh Alias Bagar v. State Of Haryana

2010-12-15

AJAY TEWARI, RANJAN GOGOI

body2010
Judgment Ajay Tewari, J. 1. This appeal is directed against the judgment and order dated 06.12.2001 passed by learned Additional Sessions Judge, Fatehabad in Sessions Case No. 36 SC of 99/2000 by which the accused-appellant had been convicted under Section 302 of the Indian Penal Code. The learned trial Court vide order dated 08.12.2001 had sentenced the accused-appellant to undergo rigorous imprisonment for.life and. to pay a fine of Rs. 5,000/-, in default, to suffer imprisonment for one year more. 2. The case of the prosecution in short is that P.W. 12. Bawaria Singh, had lodged an F.I.R. (Ex.PJ) under Sections 302/120 8134 of the Indian Penal Code to the effect that his brother Atma Singh had been murdered by accused Makhan Singh @ Bagar and Gurvinder Singh @ Kala Singh in furtherance of their common intention because Makhan Singh @ Bagar had a suspicion that Atma Singh (deceased) was having the illicit relations with the wife of Bhola, his brother. According to the complainant, accused Makhan Singh @ Bagar and Gurvinder Singh @ Kala Singh had come to their house about 2 days ago before the occurrence and had threatened his brother Atma Singh (deceased). It is the further case of the complainant that his brother Atma Singh (deceased) was unmarried and was employed as an agricultural labourer with Amrik Singh. On 10.9.1999 Atma Singh went to sleep on the tubewell of Amrik Singh from their house at about 8.30 P.M. According to complainant, at about 10.00 P.M. he received the information from Balbir Singh (PW- 10) that dead body of his brother Atma Singh is lying in front of the field of Amrik Singh and at this, he (PW-12) and Gurdip Singh reached the spot and they found the dead body of Atma Singh having sharp edged injuries on the head and neck. 3. After registration of the F.I.R. investigation was taken up on completion of which the accused persons were challaned under Sections 302 and 120-B of the Indian Penal Code for committing the murder of Atma Singh. The offence alleged being exclusively triable by the Court of Sessions, the case was committed for trial to the Court of learned Sessions Judge, Fatehabad. On completion of investigation, charge was framed against the accused persons under Sections 302 and 120-B of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. 4. The offence alleged being exclusively triable by the Court of Sessions, the case was committed for trial to the Court of learned Sessions Judge, Fatehabad. On completion of investigation, charge was framed against the accused persons under Sections 302 and 120-B of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. 4. In the course of the trial as many as fourteen prosecution witnesses were examined. The accused persons were examined under Section 313 Cr.P.C. in the course of which they took the plea of being falsely implicated in the offence alleged and made a statement that they are innocent. No defence evidence was led. Thereafter, at the conclusion of the trial the learned trial Court, on due consideration of the evidence and materials on record, had acquitted Gurvinder Singh @ Kala and Nayab. Singh of the charges and convicted the present accused-appellant by passing the impugned judgment and order. which has been assailed in the present appeal. Of the several witnesses examined by the prosecution specific notice of the evidence of PW-1, Dr. N. Chakarwarti, who had performed the post-mortem of the deceased; the evidence of PW-12 as the first informant and the evidence of PWs-8 and 11, would be required to be taken. 5. The injuries found by PW-1, Dr. N. Chakarwarti, in the post-mortem of the deceased are as follows : "1. An incised wound 16 cm x 3 cm upper part of neck below the mandible with regular and clean cut margins infiltration of blood, was seen under the subcutaneous tissues on dissection underlying muscles, blood vessels, trachea and oesophagus were cut. Clotted blood was present. 2. An incised wound 11 cm x 2 cm on the upper part of the chest with regular and. clean cut margins which were inverted infiltration of blood was seen under the subcutaneous tissues on section underlying tissues muscles were cut and clotted blood was present. 3. An incised wound 5 cm x 1 cm left parietal region of the scalp with regular and clean cut inverted margins. Cut baris were present on dissection underlying bone was fractured and brain matter was lacerated. Infiltration of blood was present under the subcutaneous tissues. s 4. An incised wound 4.5 cm x 1 cm on the forehead under part with regular and clean cut margins. Infiltration of blood was seen under subcutaneous tissues. 5. Cut baris were present on dissection underlying bone was fractured and brain matter was lacerated. Infiltration of blood was present under the subcutaneous tissues. s 4. An incised wound 4.5 cm x 1 cm on the forehead under part with regular and clean cut margins. Infiltration of blood was seen under subcutaneous tissues. 5. An incised wound 4 cm x 1 cm on the scalp 5 cm from injury No. 3 laterely on dissection. Infiltration blood was seen under the subcutaneous tissues." 6. Admittedly there are no eye witnesses to the occurrence and the entire prosecution case is based on circumstantial evidence. A reading of the evidence of the prosecution witnesses would go to show that the prosecution by examining Gurtej Singh (PW-8) has sought to prove that on 10.9.1999, the accused-appellant came to the house of PW-8 and had made extra-judicial confession that Atma Singh has illicit relations with his brothers wife Kulwant KauO have reasons to kill him. By examining Gurpal Singh (P -11 prosecution has sought to establish that the said witness had last seen the accused persons going towards the place where Atma Singh (deceased) was sleeping. By examining PW-12 prosecution has sought to establish that accused Makhan Singh and Kala Singh had come to their house 2/3 days prior to the occurrence and had threatened them because of illicit relations between Atma Singh and sister-in-law of Makhan Singh @ Bagar. The witnesses examined by the prosecution in the Court had tried to prove the aforesaid circumstances. The further case of the prosecution is that the said circumstances establish a complete chain of events which point out that it is the accused-appellant who are responsible for the death of deceased Atma Singh. 7. We do not agree with the aforesaid propositions advanced by the prosecution in the present case. It will not require a detailed analysis of the law to enable us to hold that in a case where the prosecution relies on circumstantial evidence to prove its case not only the incriminating circumstances must be proved by the prosecution but the same must be capable of excluding any other hypothesis except the guilt of the accused. Only in such a situation conviction of an accused on the basis of circumstantial evidence will be permissible. 8. Only in such a situation conviction of an accused on the basis of circumstantial evidence will be permissible. 8. In the present case, even if the Court is to proceed on the basis that the prosecution has succeeded in proving the circumstances alleged by it, it is clear and apparent that the crucial test for determining of the culpability of the accused does not stand satisfied by the proved circumstances of the case. Atma Singh (deceased) allegedly had illicit relations with sister-in-law of the accused-appellant. A mere threat meted out in the house of Atma Singh (deceased) by Makhan Singh @ Bagar because of illicit relation of his sister- in-law with the deceased as deposed to by PW- 12 would not be sufficient to establish a complete chain of events leading to only one conclusion and no other that it is the accused and nobody else who had committed the crime. It is also not digestible that Makhan Singh @ Bagar had threatened the deceased just because of illicit relation of his brothers wife with him. The threat at best would show that the accused had intended to commit a criminal act. The said threat or intention to kill would not be conclusive proof of the fact that the criminal act had, in fact, been committed by the accused-appellant. In so far as the evidence of PW-8 is concerned even if the Court is to treat the alleged statement of the accused- appellant to be in the nature of a confession, such confession being extra judicial would need Ilm corroboration. No such corroborative evidence is forthcoming in the present case. Even the testimony of PW-11 is not trustworthy because if he had seen the accused persons following his uncle (deceased) then why he didnt react at that time and just went to sleep. It must be remembered that it was only a gap of 1 /2 hours between the time that Atma Singh left his house (at 08.30 P.M.) and the time when his death was reported to his brother (at 10.00 P.M.). It is inconceivable that within time he went to meet his nephew, PW-1 1, who allegedly saw that the accused persons were threatening him and that they later left him but again returned to follow him and he did not even come to know that the murder had taken place. 9. It is inconceivable that within time he went to meet his nephew, PW-1 1, who allegedly saw that the accused persons were threatening him and that they later left him but again returned to follow him and he did not even come to know that the murder had taken place. 9. We are, therefore, of the view that the conviction of the accused-appellant as made by the learned trial Court and the sentence imposed is not legally tenable. We, therefore, set aside the same, acquit the accused-appellant and allow the appeal. The accused-appellant is on bail. Bail bond shall stand discharged.