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CASE NO.: Appeal (crl.)  922 of 2006

PETITIONER: Hatti Singh

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 17/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA, J :

       Deceased was owner of two Maruti vans.  The same were used to be   plied on hire.  On or about 11.07.1995, he brought the vehicle bearing  Registration No. DDA 3665 at the taxi stand of Hansi.  It was hired by  someone.  He did not return thereafter.  A search  was made but he could not  be traced.  On or about 22.07.1995, Rajbir (PW-9) received an information  that one Maruti van had been seen abandoned and recovered by the police.   He went to the Police Station, Narnaud.  It was identified to be the same  vehicle which was owned by the deceased.  Stains of blood were also  noticed inside the Maruti van.  A First Information Report was lodged by  him on the same day, whereupon a case under Section 364 IPC was  instituted.  On the next day i.e. on 24.07.1995, a dead body was recovered  from a canal.  The dead body was in such a condition that it did not bear any  mark of identification.  An inquest was conducted.  The dead body was  identified by Jai Singh (PW-13) and Satbir Singh on the basis of   identification of the clothes found on the person of  the deceased, which  were said to have been stitched by the said Satbir Singh.  He had, however,  not been examined.  A statement was made by Ram Kishan (PW-10) before  the police on 25.07.1995 alleging that the appellant and his three associates  had hired the taxi of the deceased.  On the next day, i.e. on 26.07.1995,  Balwan Singh (PW-11) made a statement before the Investigating Officer,  alleging that he was given a lift by the deceased in the said Maruti van upto  Village Mundhal, in which the accused persons were also travelling.               

       Appellant was arrested on 29.07.1995.  On his personal search, a  purse belonging to the deceased was recovered.  A pistol and two cartridges  were also said to have been  recovered.  One electricity bill of the deceased  as also his photograph were also allegedly recovered.  He allegedly made a  confession leading to recovery of  the number plate of the vehicle from a  well.  Suresh, another accused, was also arrested and one ring of silver on  which the word ’Umed’ was inscribed was recovered from him.

       There appears to be some controversy as to whether a pistol was also  recovered from him or not.  He also made a confessional statement.   Appellant also made a confessional statement.  Another accused Charanjit  was also arrested  and a watch of HMT make was recovered from him,  which was also identified by Rajbir (PW-9) to be belonging to the deceased.   

       Upon completion of the investigation, charges under Sections  364/302/ 201 read with Section 34 IPC were framed against the appellant  and the other accused persons.   

       The prosecution in support of its case examined as many as 20  witnesses.  Whereas, other accused persons, namely, Naresh, Charanjit and  Suresh were given the benefit of doubt, the appellant was convicted for the  offences punishable under Sections 364/302 and 201 IPC and Section 25 of

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the Arms Act.  He was sentenced to undergo imprisonment for life and to  pay a fine of Rs.10,000/-, for the offence punishable under Section 302 IPC,  in default whereof to undergo rigorous imprisonment for a period of one  year.  He was sentenced to undergo rigorous imprisonment for a period of  three years and to pay a fine of Rs. 5,000/- for commission of  the offence  punishable under Section 201 IPC, in default whereof to undergo rigorous  imprisonment for a period of six months. He was  sentenced  to undergo  rigorous imprisonment for a period of 7 years and to pay a fine of Rs.  10,000/-  for the offence punishable under Section 364 IPC, in default  whereof to undergo rigorous imprisonment a period of one year,.  He was  also sentenced to undergo rigorous imprisonment for a period of 3 years and  to pay a fine of Rs.5,000/- for the offence punishable under Section 25 of the  Arms Act, in default whereof to undergo rigorous imprisonment for a period  of 6 months,.  All the sentences, however, were directed to run concurrently.   An appeal preferred by the appellant herein thereagainst was dismissed by  the High Court.

       All the four accused were charged for commission of the same  offences.  The distinctive features for singling out the appellant in recording  a judgment of conviction against him, while acquitting the other three  accused persons,  appear to be :  

(i)     Recovery   of    pistol   and   cartridges   as also some          belongings of  the      deceased  including   his  photograph  and          the electricity bill;  (ii)    Confession of the appellant  that  he  had  thrown      the  number               plate  of  the  vehicle  bearing  Registration          No. DDA 3665  in          a well and consequent recovery thereof.       

       Mr. Prem Malhotra, learned counsel appearing on behalf of the  appellant would,  in support of the appeal, submit :  

(1)     The learned Trial Judge as also the High Court committed a serious  error in passing the impugned judgment insofar as they failed to take  into consideration the fact that recovery of the articles at the behest of  the appellant was not free from doubt. (2)     The Trial Court having disbelieved the testimony of Balwan Singh  (PW-11) being wholly unreliable, there was nothing to connect the  appellant with the crime on the basis of  the  statements of PW-10  also, whose evidence was also not free from doubt.   (3)     Identification of the dead body itself is doubtful as the colours of the  clothes, on the basis whereof it  was identified, as disclosed in the  First Information Report, and the evidence of the Investigating Officer  in his inquest report, are different.  

       The learned counsel appearing on behalf of the State, on the other  hand, would submit that as from the evidence of PW-10, it would appear that  the deceased was last seen with the appellant as also in view of  recovery of  articles belonging to the deceased and the number plate of the vehicle from  him,  all the links in the chain to point out the guilt only to the accused, must  be held to have been completed..  Strong reliance, in this behalf, has been  placed on State of Rajasthan v. Kashi Ram [2006 (11) SCALE 440].   

       The entire prosecution case apart from the recovery  is based on the  evidences of the complainant (PW-9), Ram Kishan (PW-10) and Balwan  Singh (PW-11).  As the testimony of Balwan Singh has been found to be  unreliable by the learned Trial Judge, we need not take the same into  consideration.   

       Before, however, we examine the testimonies of some of the  prosecution witnesses, we may notice certain special features of this case.   

       The dead body was recovered after 14 days.  It was not in an  identifiable condition.  

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       The dead body was said to have been  identified by Jai Singh (PW- 13).  He stated that the clothes seemed to be of Umed Singh. He was, thus,  not definite thereabout.  He even could not state the direction of flow of  water of the canal.  It is of some significance that according to him the dead  body was touching both sides of bank of the canal, which appears to be  improbable.                       According to Santa Singh (PW-18), who is an Assistant Sub  Inspector, the  dead body was identified by Rajbir (PW-9) and two others.   He did not disclose as to who  the other two persons were.   

       Dr. Basant Lal Sirohiwal (PW-12), who conducted the post-mortem   examination on the  dead body of  Umed Singh, in his deposition stated :

"\005The dead body was emitting foul smell.  Height of the  dead body on articulation was about 168 cms.  The body  was partially skeletinised form.  Maggots were crawling  al over the body.  Water weeds were present at places.   Skull bones were exposed.  Facial bones were exposed.   Short bones of hand was exposed.  Ribs were exposed  along with sternum.  Theracic viscera was missing.  Limb  bones of lower extremities in the region of tibia fibula  were exposed.  The left foot was attached only with the  tag of soft tissues.  Right foot was missing.  Stump of  penis was identifiable.  Public heirs were 3 to 4 cms and  black in colour."

       The dead body was identified before the Autopsy Surgeon by Satbir  Singh son of Dalip Singh and Ram Chander son of Shree Ram.  In the First  Information Report, the clothes, which were worn by the deceased, as  disclosed by PW-9 Rajbir,  was said to be of blue colour with white stripes.   The clothes were identified on the basis of the fact that the same had been  tailored by Satbir Singh.  He was one of the brothers of the deceased. He had  not been examined for reasons best known to the prosecution. The  identifiable tailoring mark on the basis whereof, the  clothes were said to  have been identified had also not been proved.  In the First Information  Report, the description of the deceased was given as under :

"Wheatish colour, stout body, height approximately 5’- 6", aged 35 years, wearing pants and shirt of blue colour  with white stripes and he is sporting small beard\005"  

       However, in the inquest report, the shirt found on the dead body  was  said to be of  cream colour.  In the post-mortem report, the colour of the shirt  was said to be bluish brown lying separately with the body and torn at  places.  It is, therefore, difficult to agree with the findings of the learned  Trial Judge and the High Court in regard to the identification  of the dead  body with reference to the clothes found on the dead body.   

       The learned Trial Judge relied upon the recovery of a pistol from the  appellant.  A pistol was said to have been recovered also from Naresh, as  would appear from the statement of the first informant PW-9 himself.  Only  one pistol was recovered .  Why recovery of the pistol from Naresh has been  disbelieved while accepting recovery thereof from the appellant has not been  explained.   

       Even in regard to the arrest of the accused, there exist some  discrepancies insofar as whereas according to PW-9, it was the police party,  who had arrested them;  according to A.S.I. Prem Chand (PW-17), while  they were going to Village Hansi on receipt of a secret information, Rajbir  and Balwan Singh met them at the taxi stand and later on the accused were  found in the  village.  

       Ishwar Singh (PW-16) is also a Police Officer.  According to him,

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names of the arrested  accused persons were Naresh, Ranjit, Ranbir and  another whose name was not known to him.  Before the Trial Court he  wrongly identified Charanjit as Ranjit and Suresh as Naresh.     

       As noticed hereinbefore, PW-9 spoke of  recovery of the pistol from  Naresh, but according to Nihal Singh (PW-20), it was recovered from the  appellant.  In regard to the recovery of purse, it is significant to notice a  court question put to PW-9, which is in the following terms :

"As per your statement only Naresh and Charanjit were  taken into custody at Anaj Mandi.  How the purse was  taken from the possession of Hatti accused in your  presence.

Ans.    :  Hatti was arrested later on and the purse was  taken into possession from him in my absence.  Nothing  was recovered from Hatti in my presence\005"

       No explanation in this behalf is available on record.

       The informant himself was declared hostile.  PW-9  accepted that he  had appeared as a witness against Hatti in the court in connection with the  murder of one Kishan driver.  He had also given evidence in that case  regarding  arrest and recoveries of articles from Naresh and Charanjit.  Ram  Kishan (PW-10) also told about recovery of a pistol from the appellant alone  and a silver ring from Naresh.  They do not say that two different pistols  were recovered from the appellant and Naresh separately.  One of the  witnesses must have been telling lie before the court.  If recovery from  Naresh has not been believed, on identical evidence it is difficult to accept  the case of the prosecution with regard to the appellant.     

       According to PW-10, he went to Haridwar on 12.07.1995 and came  back on 24.07.1995.  He was not even informed about the fact that the  deceased was missing.  His statement, as noticed hereinbefore, was recorded  only on 25.07.1995.  He allegedly made a statement to the effect that the  appellant and his associates were known to him.  After he made the said  statement, he was taken to the Village Bass.  The accused having not been  found there and having been told that they were at Badchhaper. He went  there and Police arrested both Hatti and Naresh together.  Therefore, the  arrest of the said accused  must have taken place on 25.07.1995.  The  Investigating Officer, however,  stated that they were arrested on  29.07.1995.  It is, therefore, difficult to accept that he is a reliable witness or  the theory that the deceased was last seen with the appellant had been  established.  

       The testimonies of PW-11, as noticed hereinbefore, had not been  relied upon by the learned Trial Judge.

       It may be true that there  had been some recoveries from the appellant  including a purse and an electricity bill; but then a ring was also recovered  from Naresh.  He has been acquitted. A watch was recovered from another   accused.  The only distinctive features to hold the appellant guilty of  commission of the offences, while acquitting the other three are only ’last  seen’ and a confession  leading to recovery of number plate of the vehicle.   Other accused were also last seen with the deceased,  if PW-10 is to be  believed.

       The evidence of last seen by itself apart from having not been proved  in this case cannot be of much significance.  It may provide for a link in the  chain.  But unless the time gap between the deceased of having been last  seen in the company of the accused persons and the murder is  proximate, it  is difficult to prove the guilt of the accused only on that basis.    

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       In Ramreddy Rajesh Khanna Reddy and Another v. State of Andhra  Pradesh [(2006) 10 SCC 172], this Court noticed :

"27. The last-seen theory, furthermore, comes into play  where the time gap between the point of time when the  accused and the deceased were last seen alive and the  deceased is found dead is so small that possibility of any  person other than the accused being the author of the  crime becomes impossible.  Even in such a case courts  should look for some corroboration.

               28. In State of U.P. v. Satish [(2005) 3 SCC 114], this Court                    observed:

"22. The last-seen theory comes into play where  the time-gap between the point of time when the  accused and the deceased were last seen alive and  when the deceased is found dead is so small that  possibility of any person other than the accused  being the author of the crime becomes impossible.  It would be difficult in some cases to positively  establish that the deceased was last seen with the  accused when there is a long gap and possibility of  other persons coming in between exists. In the  absence of any other positive evidence to conclude  that the accused and the deceased were last seen  together, it would be hazardous to come to a  conclusion of guilt in those cases. In this case there  is positive evidence that the deceased and the  accused were seen together by witnesses PWs 3  and 5, in addition to the evidence of PW 2."

[See also Bodh Raj @ Bodha & Ors. Vs. State of  Jammu & Kashmir AIR 2002 SC 3164.]"

       [See also State of Goa v. Sanjay Thakran and Anr. JT 2007 (5) SC  146]

       There cannot be any doubt that conviction can be based on  circumstantial evidence, but therefor the prosecution  must establish that the  chain of circumstances only consistently point to the guilt of the accused and  is inconsistent with his innocence.  Circumstances, as is well known, from  which an inference of guilt is sought to be drawn are required to be cogently  and firmly established.  They have to be taken into consideration  cumulatively.  They must be able to conclude that within all human  probability the accused committed the crime. [See Geejaganda Somaiah v.  State of Karnataka - AIR 2007 SCW 1681].

       Reliance has been placed by the learned counsel for the State on a  decision of this Court in Kashi Ram (supra), wherein it was held that the  incriminating circumstances must form a complete chain and must be  consistent with no other hypothesis except the guilt of the accused.   

       Therein, this Court was dealing with a case where the accused had  killed his wife and two daughters.  As in the aforementioned situation, when  the deceased were last seen the respondent therein, Section 106 of the Indian  Evidence Act was held to be applicable.  As in a case of that nature,  probability of a wife being murdered by an outsider may ordinarily be ruled  out, failure to offer an explanation by the husband in the aforementioned  situation would itself be a circumstance which may be taken into  consideration therefore.  [See also Raj Kumar Prasad Tamarkar v. State of  Bihar & Another \026 2007 (1)  SCALE 19 \026 Para 24 & 25].  

       The said decision, in our opinion, is not applicable to the fact of the  instant case.  

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       The learned counsel for the State would submit that recovery of the  articles would raise a presumption under Section 114 of the Indian Evidence  Act.  Application of such a presumption is limited.  A presumption may be  in respect of commission of theft or receipt of stolen property; if a person is  found to be in possession of the property belonging to the deceased, but on  such presumption alone, the appellant could not have been convicted for  commission of murder particularly when on the same evidence other persons  had been given benefit of doubt.   

       Having regard to the peculiar facts and circumstances of the case, we  are  inclined to extend the same benefit to the appellant herein.   

       The impugned  judgment of the High Court, therefore, cannot be  sustained, which is set aside accordingly.  The appeal is allowed.  The  appellant shall be released forthwith, if not required in any other case.