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2019 DIGILAW 467 (RAJ)

Iqbal Singh v. State

2019-02-07

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Vinit Kumar Mathur, J. -The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 03.05.2011 passed by the learned Additional Sessions Judge, Sangaria District Hanumangarh in Sessions Case No.01/2011 whereby the appellant has been convicted for the offence under section 302 IPC and sentenced to undergo life imprisonment with fine of Rs.2000/-, in default of payment of fine to further undergo two months simple imprisonment. 2. Brief facts necessary to be noted for disposal of the appeal are that on 16.10.2010 Kuldeep Singh (PW1) who is son of deceased Kaka Singh lodged an oral complaint stating therein that on 16.10.2010 at around 12'O clock in the afternoon, Iqbal Singh called his father on his mobile number and asked him to come to Malarampura on the pretext of some urgent work. His father went there. At that time, his sister Paramjeet Kaur and brother-in-law Avtar Singh were also present at their house. At around 3:00 pm, he and his brother- in- law went to meet a mechanic at Malarampura. While they were standing at the shop of the mechanic, at around 3:30 pm some persons told them that Kaka Singh of Bajitpura was being assaulted by accused appellant Iqbal Singh near Dera of Baba Balaknath. They immediately rushed to the spot. On reaching the place of the incident, they saw that Iqbal Singh was inflicting injuries with an iron pipe upon his father who was lying on the floor. The accused-appellant was shouting that since he got arrested by the Punjab Police in an opium case at the instance of the Kaka Singh, therefore, he would not spare him. When he raised hue and cry, the accused appellant fled away from the place of the incident. Jahaj Singh @ Amar Singh and other persons came to the spot. The police also reached the place of the incident. He was served a glass of water and soon after, he was taken to the Hospital in a Jeep where the doctors declared him dead. While Kaka Singh was taken to the Hospital in the jeep, Kaka Singh told that the accused appellant was on enmical terms with him as he had got the accused appellant arrested by the Punjab Police at his instance in an opium case. 3. While Kaka Singh was taken to the Hospital in the jeep, Kaka Singh told that the accused appellant was on enmical terms with him as he had got the accused appellant arrested by the Punjab Police at his instance in an opium case. 3. On this complaint, a formal F.I.R. No.523/2010 was registered at Police Station Sangaria District Hanumangarh for the offence under Section 302 I.P.C. against the accused-appellant. After conclusion of investigation, the police filed chargesheet against the accused-appellant charging him for the offence under Section 302 of I.P.C. 4. Learned trial court framed, read over and explained the charge for the offence under Section 302 IPC to the accused appellant who pleaded not guilty and sought trial. During the trial, the prosecution examined as many as 12 witnesses and Ex.P/1 to Ex.P/54 documents were exhibited. The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he expressed denial and stated that he was falsely implicated and he was innocent. 5. Learned trial Court, after hearing the arguments of both the sides, convicted and sentenced the accused-appellant for the offence under section 302 IPC vide judgment dated 03.05.2011. Hence this appeal. 6. We have heard learned counsel for the accused-appellant and the learned Public Prosecutor. 7. Learned counsel for the accused-appellant submits that though there are six witnesses to the incident but out of the six eye witnesses, PW1 Kuldeep Singh and PW9 Avtar Singh were disbelieved by the learned trial court. As far as PW2 Leela Singh, PW3 Angrej Singh, PW6 Harmel Singh and PW10 Amar Singh are concerned, they were declared hostile. Therefore, the depositions made by PW1 Kuldeep Singh and PW9 Avtar Singh are unreliable and worthless. He further submits that there is disparity in the samples which were sent to the Forensic Science Laboratory vide Ex.P/42 for examination. The packet containing Pants (trousers) and Baniyan of the accused appellant was marked 'Y' and sent to the FSL for examination. There was no packet marked 'X' whereas in the FSL report, the packet marked 'X' containing Pants and Baniyan was shown wherein the bloodstains of 'O' group was reported. The packet containing Pants (trousers) and Baniyan of the accused appellant was marked 'Y' and sent to the FSL for examination. There was no packet marked 'X' whereas in the FSL report, the packet marked 'X' containing Pants and Baniyan was shown wherein the bloodstains of 'O' group was reported. Learned counsel, therefore, submits that there exists a grave discrepancy in report of the FSL and recoveries effectuated are liable to be discarded as the samples which were packed and sent for FSL for examination were not the same on which the report of FSL was made. He further submits that recovery of iron pipe is also not reliable as one of the witness of recovery of iron pipe namely PW8 Harnek Singh did not support the prosecution and was declared hostile. He further submits that there is nothing on record to show that the accused appellant assaulted the deceased for the reason that he was got falsely implicated in an opium case at Punjab at the instance of the deceased and the allegation made in this behalf is not substantiated by any documentary proof on record. On the basis of the arguments advanced, learned counsel prays that the accused appellant deserves to be acquitted of the charges by setting aside the judgment dated 03.05.2011 passed by the trial court. 8. Per contra, learned Public Prosecutor supported the judgment dated 03.05.2011 passed by the learned trial court and contended that the prosecution was able to prove the offence alleged in the present case against the accused appellant beyond all manner of doubt. The number of injuries sustained by the deceased shows that the appellant had brutally assaulted him with intention to kill and the testimony of the prosecution witnesses is very well corroborated by the medical evidence i.e. statement of PW11 Dr. Balwant Gupta and the postmortem report (Ex.P/19) wherein the cause of death is shown to be shock due to the injuries on the vital organs (right lung) resulting from the antemortem injuries mentioned therein which were sufficient to cause death in the ordinary course of nature. He further submits that in the FSL report 'O' group blood was found on the weapon of offence i.e. iron pipe matching with the blood group found on the bloodstained clothes of the deceased sent for FSL. He further submits that in the FSL report 'O' group blood was found on the weapon of offence i.e. iron pipe matching with the blood group found on the bloodstained clothes of the deceased sent for FSL. The recovery of blood stained clothes and weapon of offence i.e. iron pipe on the information supplied by the accused appellant under section 27 of the Evidence Act (Ex.P/37) coupled with the medical evidence completes the chain of circumstances proving conclusively that it was singularly the appellant who was involved in the commission of offences alleged in the present case and therefore, the judgment dated 03.05.2011 passed by the trial court calls for no interference by this court. 9. Having considered the submissions made at the bar and having gone through the record of the learned trial court as well as impugned judgment dated 03.05.2011 herein, we note that testimony of PW1 Kuldeep Singh and PW9 Avtar Singh who were stated to be the star eye-witnesses of the incident was disbelieved by the learned trial court and rightly so in our opinion. We note that PW1 Kuldeep Singh and PW9 Avtar Singh stated that when they reached the shop of the Mechanic, some by- standers disclosed that Iqbal Singh had beaten deceased Kaka Singh near the Dera of Baba Balaknath. When they reached the spot, accused appellant was armed with an iron pipe and was inflicting injuries with exhortation that he would kill the deceased Kaka Singh as he got him arrested by the Punjab Police in a case of opium. PW1 Kuldeep Singh and PW9 are son and son-in-law of the deceased. They failed to name the person at the shop of the mechanic who informed them about the incident. 10. We further find that PW1 Kuldeep Singh and PW9 Avtar Singh after reaching the place of the occurrence rather than intervening and trying to save the deceased, they became mute spectators to the incident. This unnatural conduct of PW1 Kuldeep Singh and PW9 Avtar Singh makes their testimony doubtful. It is hard to believe the fact that if their close relative (father of PW1 Kuldeep Singh and father-in-law of PW9 Avtar Singh) was being assaulted by the accused appellant, they would stand idle and not try to intervene and save him. 11. This unnatural conduct of PW1 Kuldeep Singh and PW9 Avtar Singh makes their testimony doubtful. It is hard to believe the fact that if their close relative (father of PW1 Kuldeep Singh and father-in-law of PW9 Avtar Singh) was being assaulted by the accused appellant, they would stand idle and not try to intervene and save him. 11. No documentary evidence with respect to the opium case and arrest of the appellant at the instance of the deceased has been placed on record thereby, disproving the motive attributed to the accused. Besides, we note that, one head constable Chhotu Ram also reached the spot and saw the deceased lying on the floor having injuries and legal heir of the deceased were present at the spot. Head Constable Chhotu Ram has not been produced in the witness box. Thus, it appears that PW1 Kuldeep Singh and PW9 did not see the incident, therefore, they cannot be termed as eye witnesses as rightly held by the learned trial court. 12. Pw2 Leela Singh, PW3 Angrej Singh, PW6 Harmel Singh and PW10 Amar Singh who were projected as eye witnesses of the incident did not support the case of the prosecution and they were declared hostile. Therefore, we note that there are no eye witnesses in the present case in view of the discussions made above to connect the appellant in the commission of the offence alleged in the present case. 13. Recovery of iron pipe and bloodstained clothes of the accused from his house vide Ex.P/16 shows that when the samples were packed and sent for FSL, the packet containing bloodstained clothes of the accused appellant was marked 'Y' vide Ex.P.16 whereas as per the FSL report (Ex.P/42), there is no packet marked 'Y' containing bloodstained clothes of the accused. The prosecution has not been able to put any explanation to the same, therefore, the report of the FSL on the articles contained in the packet 'X' is required to be discarded as the same was never sent for FSL in pursuance of the recovery note. Needless to say that the disparity was not removed or explained by the prosecution during the course of the trial. 14. As far as recovery witnesses are concerned, one of the recovery witness PW8 Harnek Singh who has been declared hostile. Needless to say that the disparity was not removed or explained by the prosecution during the course of the trial. 14. As far as recovery witnesses are concerned, one of the recovery witness PW8 Harnek Singh who has been declared hostile. Now, only incriminating circumstance in the present case remains to be recovery of blood stained iron pipe wherein as per the FSL report, bloodstains of 'O' group of the appellant are found matching with the blood stains on the clothes of the accused appellant sent for FSL for examination. There is no other evidence to connect the present appellant with the commission of the offence alleged. It is settled law that merely recovery of the blood stained iron pipe on the information of the accused appellant is not sufficient to connect the appellant with the crime in question as it is not a substantive piece of evidence in itself unless the same is corroborated with other evidence. Presence of 'O' blood group on the iron pipe will not by itself establish the guilt of the appellant unless the same is connected with the murder of the deceased by the accused appellant. None of the witnesses examined by the prosecution could establish this fact. 15. Our view is supported by the judgment of Hon'ble Supreme Court in the case of Mustkeem V/s State of Rajasthan, (2011) AIR SC 2769 wherein the Hon'ble Supreme Court has held as under:- "23. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder. 25. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder. 25. It is too well settled in law that where the case rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be decided on the touchstone of law relating to circumstantial evidence, which has been well settled by law by this Court. 26. In a most celebrated case of this Court Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (iii) The circumstances should be of a conclusive nature and tendency, (iv) They should exclude every possible hypothesis except the one to be proved, and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 27. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. 27. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. Our view further gets fortified from the observations made by the Hon'ble in the case of Navaneethakrishnan Vs. The State by Inspector of Police (Criminal Appeal No. 1134 of 2013) decided on 16.04.2018 which reads as under, "23. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove." 16. Therefore, in view of whatever discussed above and in view of the authoritative pronouncement of the Hon'ble Supreme Court, the chain of the circumstances in the present case is not so complete which indicates that it was the accused appellant alone who was involved in the commission of the offence alleged in the present case and therefore, learned trial court erred while convicting the accused appellant vide judgment dated 03.05.2011. 17. In view of whatever stated above, the instant appeal is allowed and the judgment dated 03.05.2011 passed by learned Additional Sessions Judge, Sangaria District Hanumangarh is quashed and set aside. The accused appellant is acquitted of the charge of offence under sections 302 IPC. He shall be released from the prison forthwith, if not wanted in any other case. The record be returned forthwith.