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2011 DIGILAW 607 (PNJ)

Parveen Kumar v. Vijay Kumar : State Of Punjab

2011-02-17

ARVIND KUMAR, HEMANT GUPTA

body2011
Judgment Hemant Gupta, J. 1. This order shall dispose of the above noted appeals filed by Vijay Kumar son of Kaka Ram and Parveen Kumar son of Iqbal Singh, against the judgment and order dated 20.11.2000 passed by the learned Additional Sessions Judge, Patiala, convicting the appellants for an offence under Section 302 read with Section 34 IPC and sentencing them to undergo life imprisonment and to pay a fine of Rs.10,000/- each. 2. The prosecution case was set in motion on the basis of the statement of Sham Lal son of Gurnam Singh father of deceased- Vijay Kumar, made to Amarjit Singh, SI, on 29.7.1995 at 3.45 p.m. He has stated that he was working in the PWD, Public Health Department, and has four daughters and one son, namely, Vijay Kumar, aged 20/21 years. On 27.7.1995 at about 8.00 p.m., his son Vijay Kumar was standing in front of the house of Ram Saran, who resides in the same street. They were talking with Sandeep son of Ram Saran, his relation Parveen of Kaithal and Vijay alias Lamba son of Kaka Ram, resident of near Nohria Mandir, Patiala. The streetlight was on at that time. He went to his house and slept. On 28.7.1995, he noticed that his son Vijay Kumar did not come in the house in the night. He thought that his son might have stayed in the house of his uncle as usual. On way to office, his brother, Raj Kumar, met him in the Aradana Chowk, who informed that Vijay Kumar, had not come to his house during the night. Shashi Kumar son of Jit Ram, resident of Sanjay Colony, came to his house at 4.30 p.m. and he told him that the dead body of Vijay Kumar, is lying in the mortuary of the Rajindra Hospital. Raj Kumar and Harbans Lal, were already there. He (Sham Lal) came to inform the Police. He reached in the mortuary of Rajindra Hospital and noticed that the dead body of Vijay Kumar, has been taken away by Raj Kumar, after post mortem was completed. He was in grief. In the morning, Kaka Ram son of Giani, Anil Kumar son of Hari Krishan, residents of Sanjay Colony, Patiala, told him that last night at about 10 p.m., Vijay Kumar was talking with Sandeep, Parveen Kumar and Vijay alias Lamba, at Ghalroi Gate bridge. He was in grief. In the morning, Kaka Ram son of Giani, Anil Kumar son of Hari Krishan, residents of Sanjay Colony, Patiala, told him that last night at about 10 p.m., Vijay Kumar was talking with Sandeep, Parveen Kumar and Vijay alias Lamba, at Ghalroi Gate bridge. He suspected that his son has been murdered by Sandeep son of Ram Saran, resident of Sanjay Colony, Vijay alias Lamba son of Kaka Ram, resident of near Mandir Nohria, Patiala and Parveen Kumar, resident of Kaithal, who is a relation of Sandeep. The motive of murder was stated to be that his son had illicit relation with Rosi, sister of Sandeep and Sandeep was objecting to the same. 3. Gurdeep Singh, an SPO, had recovered the dead body at about 6.00 a.m. on 28.7.1995, from under the canal bridge of Ghalori Gate. The body was lying with its face towards the ground. The inquest proceedings (Exhibit PG) were undertaken by Amarjit Singh, SI on 28.7.1995. The dead body was sent for post mortem examination with a request to Doctor to remove the tips of the finger for identification. In pursuance of the said request, PW7-Dr. Harish Tuli, conducted the post mortem examination on the dead body of unidentified body of a male Hindu person at 3.20 p.m. on 28.7.1995 The Doctor has found 14 penetrating wounds on the left side of chest and on front of neck. He has further deposed that police papers having ten pages including pages No. 9 and 10 were received at 4.20 p.m. on the same day. Raj Kumar son of Gurnam Singh and Harbans Lal son Sant Ram identified the dead body as that of Vijay Kumar son of Sham Lal. 4. It was on 31.7.1995, accused Sandeep Kumar, Vijay Kumar and Parveen Kumar, were arrested from the house of Vijay Kumar. It was on 2.8.1995 in Police custody, Sandeep Kumar, made a disclosure statement (Exhibit PQ/2) and got recovered Poker (Sua) from his residential house, in pursuance such disclosure statement. On 4.8.1995, Doctor opined, on the request of the Investigating Officer, that injuries on the persons of Vijay Kumar, could be possible with Poker (Sua), recovered from Sandeep Kumar. 5. In pursuance of the FIR recorded, PW15-Amarjit Singh, filed report under Section 173 of the Code of Criminal Procedure, on completion of investigation. On 4.8.1995, Doctor opined, on the request of the Investigating Officer, that injuries on the persons of Vijay Kumar, could be possible with Poker (Sua), recovered from Sandeep Kumar. 5. In pursuance of the FIR recorded, PW15-Amarjit Singh, filed report under Section 173 of the Code of Criminal Procedure, on completion of investigation. The charges against the present appellants were sought to be proved on the basis of the evidence of the last seen by PW9-Kaka Singh and PW10-Anil Kumar son of Hari Krishan, who have deposed of having seen deceased in the company of the present appellants at about 10 p.m. on 27.7.1995 and on the basis of the statement of PW13-Surjit Singh, who has seen the deceased in the Company of present appellants at 10.30 p.m. on the aforesaid date, going under the bridge, apart from the statement of PW8-Sham Lal, father of the deceased, having last seen the deceased with the present appellants at about 8/8.30 p.m. on 25.7.1995. the prosecution also relied upon other incriminating circumstances such as proximity of the house of the deceased with the house of the accused and the inter-se relations between the two accused, to prove the charges against the appellants. 6. It may be noticed that Sandeep, from whom the weapon of offence i.e. Poker (Sua) was recovered, was found to be juvenile by the learned trial Court in an order dated 17.1.1996 and was ordered to be tried by the Juvenile Court. On the basis of the evidence led by the prosecution in the present case, the learned trial Court convicted the present appellants, as indicated above. Aggrieved against the said conviction and sentence, the appellants are in appeal before this Court. 7. Learned counsel for the appellants have vehemently argued that the First Information Report, is grossly delayed. On the basis of the evidence led by the prosecution in the present case, the learned trial Court convicted the present appellants, as indicated above. Aggrieved against the said conviction and sentence, the appellants are in appeal before this Court. 7. Learned counsel for the appellants have vehemently argued that the First Information Report, is grossly delayed. Deceased-Vijay Kumar, according to the prosecution, was last seen by PW8-Sham Lal at 8/8.30 p.m., by PW9-Kaka and PW10-Anil Kumar at 9.30/10 p.m. and PW13-Surjit Singh at 10.30 p.m. on 27.7.1995, but the information in respect of his missing and/or death was lodged on 29.7.1995 at 3.45 p.m. and that too after the dead body was recovered on 28.7.1995 at 6.00 a.m. It is contended that not only the lodging of the FIR is delayed, but the same is a result of complete fabrication as PW8-Sham Lal, did not know the fathers name and the residence of Vijay Kumar, accused and that Vijay Kumar was shown to him in the Police Station, but the FIR recorded on 29.7.1995 contains the complete address, including the parentage of the accused and their age. Still further, Raj Kumar and Harbans Lal, have sought to identify the dead body at about 4.20 p.m. on 28.7.1995. It is not explained by the prosecution as to how Raj Kumar and Harbans Lal came to know about the death of Vijay Kumar. Said Raj Kumar and Harbans Lal, have not been examined as witnesses. As per PW8Sham Lal, he was informed by one Shashi Kumar in respect of death of his son at about 4.50 p.m. on 28.7.1995, but the said Shashi Kumar, has not been examined. Still further PW8-Sham Lal has come to know about the death of his son on 28.7.1995, between 4 and 5 p.m., but still the FIR was lodged almost 24 hours after the alleged occurrence. It is argued that the appellants cannot be convicted only on the basis of the last seen evidence, which is a weak circumstantial evidence without any corroboration of any kind, whatsoever, produced on behalf of the prosecution. 8. Shri S.S. Dhaliwal, learned Additional AG, Punjab, argued that from the post mortem report, the time of death is in close proximity with the evidence of last seen produced by the prosecution. 8. Shri S.S. Dhaliwal, learned Additional AG, Punjab, argued that from the post mortem report, the time of death is in close proximity with the evidence of last seen produced by the prosecution. Therefore, such evidence becomes relevant to return a finding of causing of death by the persons, in whose company, the deceased was last seen. It is for the accused to explain that the deceased had not died at that time. 9. Having heard learned counsel for the parties at some length, we find that the reasoning given by the learned trial Court convicting and sentencing the present appellants for an offence under Section 302 read with Section 34 IPC is not sustainable in law. The prosecution has failed to complete the chain of circumstances, which may conclusively lead to an inference that the accused are the only persons, who have committed the crime and there is no possibility of any other person in commission of crime. The evidence against the present appellants is the last seen, sought to be proved by examining PW8-Sham Lal, PW9-Kaka, PW10-Anil Kumar and PW13-Surjit Singh. The evidence of each of the witnesses is shaky. PW8-Sham Lal has named, each of the accused with their parentage, age and address in the FIR, but in the cross-examination, he has denied the knowledge of address and age or the fathers name of accused Vijay Kumar. Vijay Kumar has been shown to the witnesses in the police custody without conducting the Test Identification Parade. PW9-Kaka is said to be the friend of Vijay Kumar, deceased. He came to know about the death of Vijay Kumar on 28.7.1995, but informed Sham Lal only on the next day. PW10-Anil Kumar, came to know about the death of Vijay Kumar on 28.7.1995, but he informed his father Sham Lal on 29.7.1995, at about 4.00 a.m. in respect of the deceased in the Company of the accused persons on 27.7.1995. 10. PW13-Surjit Singh is stated to be resident of Dhaka Colony, having a rented room in the house of Giani Subeg Singh. His village is 24 miles from Dhaka Colony. Neither he himself, his wife or two sons had any proof of residence of Dhaka Colony, nor he could give any information regarding the neighbours or the family members of Giani Subeg Singh, his landlord. His village is 24 miles from Dhaka Colony. Neither he himself, his wife or two sons had any proof of residence of Dhaka Colony, nor he could give any information regarding the neighbours or the family members of Giani Subeg Singh, his landlord. Thus, the evidence of the last seen by the prosecution witnesses is not that of a reliable and trustworthy witness. 11. Assuming that the prosecution has proved that the deceased was seen in the company of the accused-appellants on 27.7.1995 between 9 and 10.30 p.m. at different times, but the said evidence is not conclusive, to return a finding that it is the accused and the accused alone, who have committed the crime and all other possibilities of commission of crime are ruled out. There is no corroboration of any of the assertions of the prosecution in respect of commission of crime by the appellants. The weapon of offence has been recovered from Sandeep, a juvenile. There is no other incriminating evidence against the appellants nor any corroboration in the manner of commission of crime by the appellants. Thus, we find that the prosecution has failed to prove the commission of crime by the appellants beyond any reasonable doubt. 12. Consequently, the present appeals are allowed; the judgment and order dated 20.11.2000 passed by the learned trial Court, are set aside and by granting benefit of doubt, the appellants are acquitted of the charges framed against them.