Punjab-Haryana High Court
Sandeep @ Roba @ Sonu vs State Of Haryana on 5 July, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:087993-DB
CRA-D-814-DB-2006 (O&M) and other connected appeals
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Decided on:- 05.07.2024
(1) CRA-D-814-DB-2006 (O&M)
Sandeep @ Roba @ Sonu
....Appellant
Versus
State of Haryana
...Respondent
(2) CRA-D-692-DB-2006 (O&M)
Sandeep
....Appellant
Versus
State of Haryana
...Respondent
(3) CRA-D-126-DB-2016 (O&M)
Dhanna @ Dhanne
....Appellant
Versus
State of Haryana
...Respondent
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE AMARJOT BHATTI
Present: Mr. Vijender Dhankar, Advocate
for the appellant in CRA-D-814-DB-2006.
Mr. Varun Veer Chauhan, Advocate
for appellant(s) in CRA-D-692-DB-2006 &
CRA-D-126-DB-2016.
Mr. Svaneel Jaswal, Addl. A.G., Haryana.
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Neutral Citation No:=2024:PHHC:087993-DB
CRA-D-814-DB-2006 (O&M) and other connected appeals
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AMARJOT BHATTI, J.
1. All three appeals, CRA-D-814-DB-2006, CRA-D-692-DB-
2006 and CRA-D-126-DB-2016 as referred above arising out of two
separate judgments and orders of sentence passed by learned Additional
Sessions Judge, Sonepat pertaining to same FIR were taken up together
with the consent of learned counsel for the appellants.
2. Appellants/convicts in CRA-D-814-DB-2006 and CRA-D-
692-DB-2006 namely Sandeep @ Roba @ Sonu s/o Hoshiar Singh and
Sandeep s/o Angrej have filed their respective appeals against judgment
of conviction dated 04.09.2006 and order of sentence dated 06.09.2006
passed by learned Additional Sessions Judge, Sonepat in Sessions Case
bearing No.14 of 2005, title "State Vs. Mintu and others" vide which
both Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o
Angrej were sentenced as under :-
Name of Offence Sentence of Fine In default of
Convict(s) U/s Imprisonment fine
1. Sandeep 302 read Both to undergo Rs. To undergo
@ Roba @ with rigorous 5,000/- simple
Sonu s/o Section 34 imprisonment for each imprisonment
Hoshiar of IPC Life for three months
Singh each
2. Sandeep
s/o Angrej
3. Whereas, appellant-Dhanna @ Dhanne filed appeal i.e.
CRA-D-126-DB-2016 against the judgment of conviction and order of
sentence dated 21.12.2015 passed by learned Additional Sessions Judge,
Sonepat in Sessions Case bearing No.1102 of 2014, title "State Vs.
Dhanna @ Dhanne" vide which appellant-Dhanna @ Dhanne was
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sentenced as under :-
Name of Offence Sentence of Fine In default of
Convict(s) U/s Imprisonment fine
Dhanna @ 302 read To undergo Rs. To undergo
Dhanne with rigorous 10,000/- rigorous
Section 34 imprisonment for imprisonment
of IPC Life for one year
4. Brief facts as per prosecution case are that on 07.10.2004,
SI/SHO Mehar Singh along with other police officials was on patrol duty
at Tihar Kalan Road, Kheri Dahiya turn where complainant Ravinder got
his statement recorded. Complainant Ravinder stated that he was 13
years old and was studying in 9th class in Government School, Village
Tihar Kalan. Mintu s/o Lehna resident of his village whereas Anil s/o
Balbir @ Balle and Dhanna @ Dhanne residents of Gopalpur used to
visit their house to call his brother Sandeep. His mother Savitri did not
like her son Sandeep to accompany them. On inquiry, Sandeep
disclosed to his mother that the aforesaid persons wanted him to join
their company in committing loot etc. whereas Sandeep wanted to avoid
their company. On 06.10.2004 at about 9:30 PM, Mintu, Anil and
Dhanna @ Dhanne came to his house to call his brother Sandeep. His
mother told them that Sandeep will not accompany them. Mintu told his
mother that they were calling Sandeep for taking a cassette and
thereafter they will leave him. On that day his brother Sandeep
accompanied them and did not return home. In the morning, the
complainant along with his mother was going to harvest Jawar crop in
the fields of Azad and they found one person lying dead in the fields of
Satpal resident of their village at some distance from the road. He along
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with his mother found that it was dead body of his brother Sandeep.
There were marks of injury on his face, head, neck and hands with sharp
edged weapon. The complainant stated that Mintu, Anil and Dhanna @
Dhanne murdered his brother as they nourished grudge against his
brother Sandeep for not joining their company. Complainant stated that
he and his mother would disclose the involvement of Anil after making
inquiry at their own level. Savitri was left near the dead body whereas
the complainant was coming to lodge the report and the police party met
on Tihar road of Kheri Dahiya turn. On the basis of this statement ruqa
was sent to police station for registration of FIR under Section 302 read
with Section 34 IPC. Accordingly, FIR was registered and special report
was sent to the Illaqa Magistrate. The police party reached the spot and
started investigation. The inquest report was prepared and the dead body
was sent for post-mortem examination. Site plan of the place of
occurrence was prepared, blood stained earth was lifted from the spot
and was taken into police possession. One blood stained broken handle
of sickle was also recovered from the spot and was taken into police
possession.
5. During further investigation accused Mintu and Sandeep s/o
Angrej were apprehended on 15.10.2004 and Sandeep @ Roba @ Sonu
s/o Hoshiar Singh was apprehended on 11.12.2004 and their disclosure
statements were recorded. In pursuance of their disclosure statements,
recoveries were effected and on completion of investigation, challan was
presented qua Mintu, Sandeep @ Roba @ Sonu s/o Hoshiar Singh and
Sandeep s/o Angrej.
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6. All accused were supplied complete set of copies of challan
report as provided under Section 207 of Cr.P.C. Since the offence under
Section 302 IPC is exclusively triable by the Court of Sessions, learned
Magistrate, Sonepat committed the case to the Court of learned Sessions
Judge, Sonepat for trial vide commitment order dated 23.02.2005 qua
accused Mintu, Sandeep @ Roba @ Sonu s/o Hoshiar Singh and
Sandeep s/o Angrej.
7. Learned Additional Sessions Judge, Sonepat, after hearing
arguments, framed charge-sheet against all the said accused. Accused
Mintu, Sandeep @ Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o
Angrej were charge-sheeted for the commission of offence punishable
under Section 302 read with Section 34 IPC, which was read over and
explained to them in simple language to which they pleaded not guilty
and claimed trial.
8. In order to prove the facts of the case, prosecution examined
Jagdish, Halqa Patwari as PW-1, Ramesh as PW-2, Dr. Rajiv Sethi as
PW-3, Satbir Singh, MHC as PW-4, Umesh as PW-5, ASI Inderpal as
PW-6, EHC Jogender Singh as PW-7, HC Dharambir Singh as PW-8,
Smt. Savitri as PW-9, Inspector Swatantra Singh as PW-10 and Ravinder
complainant as PW-11. Thereafter, learned Public Prosecutor for the
State closed prosecution evidence on 18.05.2006.
9. Dhanna @ Dhanne co-accused was arrested in this case on
10.06.2014 and was joined in the investigation of this case. His
disclosure statement was recorded and after completing investigation
supplementary challan was presented in the court.
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10. Accused Dhanna @ Dhanne was supplied complete set of
copy of challan report as provided under Section 207 of Cr.P.C. Since
the offence under Section 302 IPC is exclusively triable by the Court of
Sessions, learned Magistrate, Sonepat committed the case to the Court of
learned Sessions Judge, Sonepat for trial vide commitment order dated
01.08.2014 qua accused Dhanna @ Dhanne.
11. Learned Additional Sessions Judge, Sonepat, after hearing
arguments, framed charge-sheet against the accused. Accused Dhanna @
Dhanne was charge-sheeted for the commission of offence punishable
under Section 302/34 IPC, which was read over and explained to him in
simple language to which he pleaded not guilty and claimed trial.
12. In order to prove the facts of the case, prosecution examined
Dr. Rajiv Sethi as PW-1, Jagdish, Halka Patwari as PW-2, Ramesh as
PW-3, C. Parveen Kumar as PW-4, EASI Jogender as PW-5, EHC Om
Parkash as PW-6, SI Dalvir Singh as PW-7, HC Kapil as PW-8,
Ravinder complainant as PW-9, Savitri as PW-10, C. Lokender as PW-
11, HC Jasbir as PW-12, Inspector Inder Pal as PW-13, SI Dharambir
Singh as PW-14 and HC Parveen Kumar as PW-15. Thereafter, learned
Public Prosecutor for the State closed prosecution evidence on
30.11.2015.
13. During trial in both the cases, statements of all the accused
were recorded under Section 313 Cr.P.C by putting every incriminating
evidence against them by the learned trial Court to which they pleaded
innocence and false implication.
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14. In the trial titled "State vs. Mintu and Others", accused
Mintu tendered into evidence challan reports in other cases against
Sandeep s/o Duli Chand Exhibit-D1 and Exhibit-D2 and copy of
judgment dated 19.02.2004 in which Duli Chand father of victim
Sandeep was convicted under Section 302 IPC and Section 27 of Arms
Act, Exhibit-D3 and thereafter all the accused therein closed their
evidence by making statement dated 01.09.2006.
15. Whereas in second trial on supplementary challan, defence
evidence of Dhanna @ Dhanne was closed on 21.12.2015 without him
leading any evidence in defence.
16. After hearing arguments advanced by learned Public
Prosecutor for the State as well as learned counsel representing the
accused persons in Sessions trial titled "State Vs. Mintu and Others",
accused Mintu was acquitted of the charge framed against him under
Section 302/34 IPC by giving him benefit of doubt whereas Sandeep @
Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej were held
guilty and convicted under Section 302 read with Section 34 of IPC vide
judgment of conviction dated 04.09.2006 and order of sentence dated
06.09.2006 as referred above.
17. On the other hand, in supplementary challan after hearing
arguments advanced by learned Public Prosecutor for the State and
learned counsel representing accused Dhanna @ Dhanne in Sessions trial
titled "State Vs. Dhanna @ Dhanne", accused Dhanna @ Dhanne was
convicted under Section 302 read with Section 34 IPC and was
sentenced as referred above vide judgment and order of sentence dated
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21.12.2015.
18. Feeling aggrieved of these judgments and orders of
sentence, present criminal appeals have been filed by all the convicts
namely Sandeep @ Roba @ Sonu s/o Hoshiar Singh, Sandeep s/o Angrej
and Dhanna @ Dhanne as referred above.
19. Learned counsel representing appellant/convict Sandeep @
Roba @ Sonu s/o Hoshiar Singh in CRA-D-814-DB-2006 argued that
judgment of conviction dated 04.09.2006 and order of sentence dated
06.09.2006 passed by learned trial Court qua Sandeep @ Roba @ Sonu
s/o Hoshiar Singh is not on sound footing and is liable to be set aside.
The facts of the case and evidence on record were not rightly considered
in the correct perspective. In the case in hand, prosecution has miserably
failed to prove any motive behind the occurrence. There was no link to
connect the appellant with the murder of Sandeep s/o Duli Chand. There
is unexplained delay in lodging report to the police. As per prosecution
case, deceased left the house on 06.10.2004 at about 9:30 PM allegedly
accompanied by Mintu, Anil and Dhanna @ Dhanne. Complainant or his
mother did not try to locate the whereabouts of victim nor any report was
lodged with the police when he did not return home. Initially appellant
was not named or suspected by the complainant in the commission of
offence. Entire case of prosecution is based on circumstantial evidence
which is a weak type of evidence and prosecution has failed to complete
the chain of events to connect him with the said offence. It was the case
of prosecution that dead body of Sandeep s/o Duli Chand was lying in
the fields of Satpal near Kheri Dhaiya road whereas it has come in the
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cross-examination of Ramesh PW-2 that dead body of victim was lying
on the Phirni near the house of complainant. Witness Ramesh PW-2 is
neither eye witness to the occurrence nor he had supported the
prosecution case. Material contradictions in the statements of Savitri
PW-9 and Ravinder complainant as PW-11 have been ignored. Learned
trial Court has overlooked the aforesaid infirmities in the prosecution
case and appellant was wrongly convicted and sentenced under Section
302 read with Section 34 of IPC. It is submitted that appeal preferred by
appellant may be accepted by setting aside the aforesaid judgment of
conviction and order of sentence passed by the learned trial Court.
20. Learned counsel representing appellant/convict namely
Sandeep s/o Angrej in CRA-D-692-DB-2006 pointed out that judgment
of conviction and order of sentence passed by the learned trial Court is
based upon conjectures and surmises without proper appreciation of
evidence on record. The entire case of prosecution was based on theory
of last seen and circumstantial evidence. There is no direct evidence on
record to show that deceased victim was lastly seen in the company of
Sandeep s/o Duli Chand. There is no eye witness to the occurrence.
Prosecution has built up its entire case on the basis of disclosure
statement made by co-accused which is not admissible in evidence.
Prosecution has failed to prove any motive behind the occurrence. The
learned trial Court has failed to consider material discrepancies in the
statements of Savitri PW-9 and Ravinder PW-11. Both of them have
tried to give improved version to falsely implicate the appellant-accused.
Even otherwise both the witnesses changed their version when they
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stepped into the witness box qua role of Mintu who was ultimately
acquitted of charge framed against him. The complainant Ravinder as
well as his mother Savitri are not reliable witnesses and their testimonies
cannot be safely relied upon. Investigation was not carried out in a
proper manner. No private witness was joined in the police party at the
time of recording of said disclosure statements or effecting recoveries.
Apart from this, the Investigating Officer could not be examined in this
case. In fact it was a blind murder in which the present appellant was
falsely implicated. The impugned judgment of conviction and order of
sentence passed by learned Additional Sessions Judge, Sonepat was
prayed to be unsustainable in the eyes of law and thus liable to be set
aside.
21. Learned counsel for appellant/convict Dhanna @ Dhanne in
CRA-D-126-DB-2016 argued that sufficient evidence was not available
on record to hold the appellant guilty of offence punishable under
Section 302 read with Section 34 of IPC. Proper appreciation of
evidence on record was not carried out. Learned counsel argued the
appeal on the same lines as per arguments raised by learned counsel for
the appellant representing Sandeep @ Roba @ Sonu s/o Hoshiar Singh
and Sandeep s/o Angrej to the effect that entire case of prosecution is
based on last seen theory as well as circumstantial evidence which was
not sufficient to complete the chain of events. In the case in hand no
recovery was effected from Dhanna @ Dhanne. It was argued that
learned Additional Sessions Judge, Sonepat failed to consider law as
well as facts of the case and has wrongly held appellant-Dhanna @
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Dhanne guilty for the murder of Sandeep s/o Duli Chand. The judgment
of conviction and order of sentence dated 21.12.2015 is thus liable to be
set aside by accepting the present appeal.
22. On the other hand learned counsel representing respondent-
State argued that there was proper appreciation of the facts of the case
and evidence led by the prosecution in both the trials. FIR was
registered on the statement of Ravinder complainant who was younger
brother of deceased victim Sandeep s/o Duli Chand. Occurrence took
place on the intervening night of 06/07.10.2004 and the FIR was
registered on 07.10.2004 immediately. There was no delay in the
registration of FIR. Learned State counsel pointed out that Ravinder
complainant specifically named Mintu, Anil and Dhanna @ Dhanne to
have come to their house on 06.10.2004 at 9:30 PM to call his brother
Sandeep s/o Duli Chand and thereafter brother of complainant never
returned home and his dead body was found in the fields of Satpal in the
morning. To prove the entire case, prosecution examined Savitri mother
PW9 and Ravinder brother of the deceased victim as PW11. After the
arrest of accused Mintu, other accused were named and were arrested in
this case. Weapon of offence was recovered on the basis of disclosure
statement of Sandeep @ Roba @ Sonu s/o Hoshiar Singh along with
Hero Honda motorcycle No. HR-10A-5412 used in the occurrence which
is Ex.PE/3. Apart from this, blood stained shirts of Mintu and Sandeep
s/o Angrej were also recovered as per their disclosure statements, the
respective recovery memos are Exhibit-PG/1 and Exhibit-PG/4. Post
mortem report of Sandeep s/o Duli Chand is proved by Dr. Rajiv Sethi
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examined as PW-3. As per the post mortem report Exhibit-PD there were
six (6) injuries on the person of deceased victim and the cause of death
in this case was shock and hemorrhage and extensive damage to brain
and spinal cord as a result of injuries described in the post mortem
report. All injuries were ante mortem in nature and sufficient to cause
death in normal course of life. Probable time elapsed between injuries
and death was within few minutes and between death and post mortem
was within 6-36 hours. Investigation carried out by the police is proved
on record by examining ASI Inder Pal PW-6 and HC Dharambir Singh
PW-8. Statement of SI Mehar Singh could not be recorded as he expired
during the pendency of the trial. Death certificate of SI Mehar Singh
Exhibit-PX was placed on record in sessions trial title "State vs. Dhanna
@ Dhanne". Prosecution examined Umesh, Photographer as PW-5 and
other relevant witnesses to prove the link evidence and investigation
carried out by the police. Report of Forensic Science Laboratory dated
14.07.2005 is Exhibit-PB and as per serological analysis of blood
Exhibit-PB/1 there was human blood on Exhibit-2a to Exhibit-2d.
Therefore, facts of the case and the evidence on record were rightly
considered in both trials and accordingly the appellants/convicts Sandeep
@ Roba @ Sonu s/o Hoshiar Singh, Sandeep s/o Angrej and Dhanna
@Dhanne were rightly held guilty for the murder of Sandeep s/o Duli
Chand and were sentenced under Section 302 read with Section 34 of
IPC. The appeals preferred by the appellants are without merits and
deserve dismissal.
23. We heard arguments advanced by learned counsel for
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appellant(s) and learned counsel representing the State and have gone
through the record of both cases carefully with their able assistance. In
both trials, most of the witnesses and documents are common. For the
sake of convenience of the Court, the evidence and documents
mentioned in Sessions Case No. 14 of 2005 titled "State of Haryana
Versus Mintu and others" are taken up for discussion.
FIR was registered on the statement of Ravinder who is real
brother of deceased victim Sandeep s/o Duli Chand. Complainant
alleged that Mintu, Anil and Dhanna @ Dhanne were on visiting terms
to their house for quite some time and they used to meet his brother
Sandeep. Savitri their mother did not like association of Sandeep with
Mintu, Anil and Dhanna @ Dhanne and used to stop him. Sandeep s/o
Duli Chand had disclosed to his mother that they were compelling him to
join them for committing loots etc. but his brother wanted to stay away
from them. On 06.10.2004 at about 9:30 PM, Mintu, Anil and Dhanna
@ Dhanne took his brother Sandeep s/o Duli Chand along with them by
saying that he will be sent back after taking a cassette from him.
However, his brother did not return home and on the next day his dead
body inflicted with injuries was found in the fields of Satpal at some
distance from the road. Complainant suspected Mintu, Anil and Dhanna
@ Dhanne for the murder of his brother as they nourished a grudge
against him for not joining their company in illegal activities.
In the case in hand, there is admittedly no direct evidence to
prove the occurrence. Prosecution case is based on circumstantial
evidence i.e. last seen theory and the articles recovered on the basis of
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disclosure statements of accused. Dead body of Sandeep s/o Duli Chand
in injured condition was recovered from the field of Sat Pal. Post
mortem report of Sandeep s/o Duli Chand is proved on record by Dr.
Rajiv Sethi PW-3 which is Exhibit-PD. As per the post mortem report,
the deceased victim suffered following injuries:-
1 Skin of entire scalp missing from hair line all around.
Cut edges of remaining skin were clean cut.
2 Scalp bones are visible with peritoneum sticking to
skull bone at many places.
3 There was fracture of Right Temporal bone through
which brain parenchyma was visible and part of temporal
bone was missing.
4 Frontal bone on right side just above roof of orbit was
fractured.
5 Upper part of left pinna was cut through and through.
Margins clean cut.
6 There was heavily cut incised looking lacerated
wound on the back of left neck extending from occipital
protuberance to the middle of neck and horizontally from
back of right to left pinna, measuring 20X8 cm. Underlying
cervical vertebra freactured with spinal cord exposed and
extensively lacerated with blood in the wound.
On exploration of brain after removing the skull
vault, the frontal and right temporal region of brain were
lacerated with lot of blood in all the radial fossi. The
meninges were lacerated.
* Multiple linear superficial cuts on left side of face
and upper neck and upper lip and chin.
* Upper part of pinna of left side was cut through and
through. Clotted blood present. Margins of the wound clean
cut.
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* Incised wound of 10cmX3cm, muscle deep with
clotted blood, on top of right shoulder extending medially.
* An incised wound of 10cmX3cm present on the back
of lower part of right forearm. Clotted blood present.
Underlying muscles and tendons exposed and cut.
* An incised wound of 10cmX3cm present on the
lateral aspect of middle of right forearm. Clotted blood
present. Muscles and tendons exposed and cut.
* Incised wound 3cmX1cm present on dorsum of right
hand between base of ring and middle finger. Muscle deep.
* Incised wound 1.5cmX0.5cm on back of
metacarpophalangeal joint of right index finger. Clotted
blood present.
* Incised wound of 1.5cmX0.5cm in front of lower part
of right forearm.
* Incised wound in the medial side of
metacarpophalangeal joint of left little finger, 3.5cmX1.5cm
in size. Clotted blood present underlying fractured wound.
* 1cmX0.3cm incised wound present on distal phalynx
of right index finger.
As per opinion of Board of Doctors consisting of Dr. Rajiv
Sethi, Dr. Meenakshi and Dr. Arun Garg, cause of death of deceased was
haemorrhage and shock and extensive damage to brain and spinal cord
as a result of injuries described in the post-mortem report. All injuries
were ante-mortem in nature and sufficient to cause death in normal
course of life. Probable time that elapsed between injury and death was
within few minutes and between death and post-mortem was within 6-36
hours.
Thus deceased victim was murdered by causing injuries on
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vital part of his body with sharp edged weapon.
24. Onus was on prosecution to prove the guilt of
accused/appellants beyond the shadows of reasonable doubt by leading
convincing evidence. In the absence of direct evidence, prosecution was
required to prove the guilt on the basis of circumstantial evidence.
Hon'ble the Supreme Court of India in case title "Aftab Ahmad
Anasari versus State of Uttaranchal", 2010(1) Crimes 97 emphasized
the facts and evidence which are to be considered while dealing with the
case based on circumstantial evidence. In para no. 4 of the judgment, it
was held as under :-
" The law relating to circumstantial evidence is well settled.
In dealing with circumstantial evidence, there is always a
danger that conjecture or suspicion lingering on mind may
take place of proof. Suspicion howsoever strong cannot be
allowed to take place of proof and, therefore, the Court has
to judge watchfully and ensure that the conjectures and
suspicions do not take place of legal proof. However, it is
no derogation of evidence to say that it is circumstantial.
Human agency may be faulty in expressing picturization of
actual incident but the circumstances cannot fail. Therefore,
many a times, it is aptly said that "men may tell lies, but
circumstances do not". In cases where evidence is of a
circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should, in the first
instance, be fully established. Each fact must be proved
individually and only thereafter the Court should consider
the total cumulative effect of all the proved facts, each one
of which reinforces the conclusion of the guilt. If the
combined effect of all the facts taken together is conclusive
in establishing the guilt of the accused, the conviction would
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be justified even though it may be that one or more of these
facts, by itself/themselves, is/are not decisive. The
circumstances proved should be such as to exclude every
hypothesis except the one sought to be proved. But this does
not mean that before the prosecution case succeeds in a
case of circumstantial evidence alone, it must exclude each
and every hypothesis suggested by the accused, howsoever
extravagant and fanciful it might be. There must be a chain
of evidence so far complete as not to leave any reasonable
ground for conclusion consistent with the innocence of the
accused and it must be such as to show that within all
human probability, the act must have been done by the
accused. Where the various links in a chain are in
themselves complete, then a false plea or a false defence
may be called into aid only to lend assurance to the Court.
If the circumstances proved are consistent with the
innocence of the accused, then the accused is entitled to the
benefit of doubt. However, in applying this principle,
distinction must be made between facts called primary or
basic on the one hand and inference of facts to be drawn
from them on the other. In regard to the proof of basic or
primary facts, the Court has to judge the evidence and
decide whether that evidence proves a particular fact or not
and if that fact is proved, the question arises whether that
fact leads to the inference of guilt of the accused person or
not. In dealing with this aspect of the problem, the doctrine
of benefit of doubt applies. Although there should be no
missing links in the case, yet it is not essential that every
one of the links must appear on the surface of the evidence
adduced and some of these links may have to be inferred
from the proved facts. In drawing these inferences or
presumptions, the Court must have regard to the common
course of natural events, and to human conduct and their
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relations to the facts of the particular case."
Hon'ble the Supreme Court in 2013(1) Recent Apex
Judgments (R.A.J.) 435 case titled "R. Shaji Versus State of Kerala"
observed in para No. 23 as under :-
"23. It is a settled legal proposition that the conviction of a
person accused of committing an offence, is generally based
solely on evidence that is either oral or documentary, but in
exceptional circumstances, such conviction may also be
based solely on circumstantial evidence. For this to happen,
the prosecution must establish its case beyond reasonable
doubt, and cannot derive any strength from the weaknesses
in the defence put up by the accused. However, a false
defence may be brought to notice, only to lend assurance to
the Court as regards the various links in the chain of
circumstantial evidence, which are in themselves complete.
The circumstances on the basis of which the conclusion of
guilt is to be drawn, must be fully established. The same
must be of a conclusive nature, and must exclude all
possible hypothesis except the one to be proved. Facts so
established must be consistent with the hypothesis of the
guilt of the accused, and the chain of evidence must be
complete, so as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused,
and must further show, that in all probability the said
offence must have been committed by the accused.
Firstly, it is the case of prosecution that deceased victim
Sandeep s/o Duli Chand was last seen in the company of Mintu, Anil and
Dhanna @ Dhanne. Statement of Ravinder complainant is Exhibit-PH.
Prosecution examined Ravinder complainant as PW-11 who stated that
on 06.10.2004 at about 9:30 PM accused Anil, Dhanna @ Dhanne,
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Sandeep @ Roba @ Sonu and Sandeep s/o Angrej had come to their
house to call his brother Sandeep s/o Duli Chand, the deceased victim.
He was duly confronted with his statement Exhibit-PH where he did not
name Sandeep s/o Angrez and Sandeep @ Roba to have come to his
house for calling his brother whereas he further skipped the name of
Mintu which he had earlier mentioned in his statement Exhibit-PH.
Similarly, Savitri mother of the deceased victim stepped into the witness
box as PW-9 where she stated that Mintu, Dhanna @ Dhanne, Anil,
Sandeep s/o Angrej and Sandeep @ Roba @ Sonu s/o Hoshiar Singh had
come to her house for calling his son. During her cross-examination she
claimed that Mintu was not amongst the boys who had called his son
Sandeep from her house on 06.10.2004 at about 9:30 PM. She further
explained that Mintu was named at the instance of police and other
accused persons. She denied to have named Mintu in her previous
statement given to the police. She further stated that on the previous date
when her examination-in-chief was recorded on 06.03.2006 she had
named Mintu under pressure of police and by mistake. She was also
confronted with her statement Exhibit-DA recorded by the police where
she did not name Sandeep s/o Angrej and Sandeep @ Roba @ Sonu s/o
Hoshiar Singh as accused persons who had come to her house for calling
her son. Therefore, both aforesaid witnesses have given an improved
version by excluding the name of Mintu and adding name of Sandeep @
Roba @ Sonu s/o Hoshiar Singh and Sandeep s/o Angrej who allegedly
came to call deceased victim Sandeep s/o Duli Chand.
Prosecution examined Ramesh PW-2 who had identified
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dead body of Sandeep s/o Duli Chand before police on 07.10.2004.
During cross-examination he claimed that dead body of Sandeep s/o Duli
Chand was lying near the door of house of Duli Chand which opened on
Phirni. The witness was re-examined but was declared hostile. When
confronted with his statement Exhibit-PC, he denied to have given the
said statement. He further denied that Savitri mother of the deceased
victim ever told him that Mintu, Sandeep s/o Angrej, Dhanna @ Dhanne
and Sandeep @ Roba @ Sonu nephew of Dhanna @ Dhanne committed
murder of her son. Thus, testimonies of Ravinder PW-11, Savitri PW-9
and Ramesh PW-2 as referred above clearly indicate that they had
changed their version with the passage of time. Therefore, their
statements cannot be safely relied upon. On account of said
improvement in the statement of complainant as well as his mother, one
of the accused Mintu was acquitted of the charge framed against him.
25. Moreover, circumstance of last seen together by itself does
not always lead to an irrevocable conclusion that it is the accused facing
trial in the case who had murdered the deceased victim. Prosecution is
required to lead cogent evidence to establish the connectivity or link
between the accused and the crime so committed. Time gap between
accused last seen together with deceased and discovery of dead body in a
given factual matrix may assume importance. Principle of last seen has
to be applied by taking into consideration the totality of facts and
circumstances of each case.
In the case in hand, Sandeep deceased victim left the house
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at 09:30 P.M. on 06.10.2004 and his dead body was spotted at about
09:00 A.M. on 07.10.2004. As per Post-mortem Report Ex.PD dead
body was examined on 07.10.2004 at 02:00 P.M. Time between death
and post-mortem was within 6-36 hours. There is gap of about 12 hours
when Sandeep s/o Duli Chand was last seen alive. This assumes
significance and casts a doubt on the prosecution case in view of the
circumstances as narrated in the following para.
26. Occurrence took place on the intervening night of
6/7.10.2004. As per prosecution case, Sandeep s/o Duli Chand left the
house at about 9:30 PM and did not return home the entire night.
Ravinder complainant alleged in his statement Exhibit-PH that his
mother Savitri did not like her son Sandeep joining the company of
Mintu and others. Despite this Savitri mother of the deceased victim did
not make any effort to locate the whereabouts of her son nor she tried to
lodge a report with the police. Savitri PW9 and Ravinder PW11 were
going to the fields of Azad to harvest Jawar crops when they saw the
dead body lying in the fields of Satpal and it was identified by them as
that of their son/brother Sandeep s/o Duli Chand. The conduct of Savitri
indicates that till she noticed the dead body of her son she was not
suspecting anything otherwise she would have tried to search her son at
her own level or would have lodged the report with the police.
27. The investigation was carried out by SHO/SI Mehar Singh
and his police party. Accused Mintu was arrested and during
interrogation he suffered disclosure statement on 15.10.2004 Exhibit-PG.
In this disclosure statement, he narrated the reason and manner in which
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the occurrence took place. He named accused Dhanna @ Dhanne,
Sandeep @ Roba @ Sonu, Sandeep s/o Angrej and also attributed
specific roles to them. The said disclosure statement of Mintu recorded
by SI Mehar Singh regarding commission of crime is not admissible
piece of evidence. Section 26 and 27 of The Indian Evidence Act, 1872
reads as under:-
"26. Confession by accused while in custody of police
not to be proved against him. - No confession made by
any person whilst he is in the custody of a police-officer,
unless it be made in the immediate presence of a
Magistrate, shall be proved as against such person.
xxx xxx xxx
27. How much of information received from accused
may be proved. - Provided that, when any fact is deposed
to as discovered in consequence of information received
from a person accused of any offence, in the custody of a
police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the
fact thereby discovered, may be proved."
Therefore, disclosure statement made before the police is
admissible only to the extent it leads to discovery of any fact relating to
the commission of offence. Gainful reference can be made to the
judgment of Hon'ble the Supreme Court in Criminal Appeal
No.1030/2023, case title "Manoj Kumar Soni Versus State of
Madhya Pradesh", with relevant paras No.22 and 24 thereof reading as
under:-
"22. A doubt looms: can disclosure statements per se,
unaccompanied by any supporting evidence, be deemed
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adequate to secure a conviction? We find it implausible.
Although disclosure statements hold significance as a
contributing factor in unriddling a case, in our opinion, they
are not so strong a piece of evidence sufficient on its own
and without anything more to bring home the charges
beyond reasonable doubt.
xxx xxx xxx
xxx xxx xxx
24. The law on the evidentiary value of disclosure
statements of co-accused too is settled; the courts have
hesitated to place reliance solely on disclosure statements of
co-accused and used them merely to support the conviction
or, as Sir Lawrence Jenkins observed in Emperor vs. Lalit
Mohan Chuckerburty, to "lend assurance to other evidence
against a co-accused". In Haricharan Kurmi vs. State of
Bihar, this Court, speaking through the Constitution Bench,
elaborated upon the approach to be adopted by courts when
dealing with disclosure statements:
13. ... In dealing with a criminal case where the prosecution
relies upon the confession of one accused person against
another accused person, the proper approach to adopt is to
consider the other evidence against such an accused person,
and if the said evidence appears to be satisfactory and the
court is inclined to hold that the said evidence may sustain
the charge framed against the said accused person, the court
turns to the confession with a view to assure itself that the
conclusion which it is inclined to draw from the other
evidence is right."
Disclosure statement of Mintu Exhibit-PG is led to recovery
of shirt allegedly worn by him at the time of commission of alleged
offence. On the basis of disclosure statement, a yellow coloured shirt
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was recovered on the demarcation of Mintu. The recovery memo is
Exhibit-PG/1/PL. He also demarcated the place of occurrence, memo in
this regard is Exhibit-PG/2. It is to be reiterated at this stage that Mintu
was acquitted by learned trial Court.
Similarly, there is disclosure statement of Sandeep s/o
Angrej recorded on 15.10.2004 Exhibit-PG/3. The disclosure statement
of Sandeep @ Roba @ Sonu s/o Hoshiar Singh dated 04.12.2004 is
Exhibit-PG. Another disclosure statement of Sandeep @ Roba @ Sonu
s/o Hoshiar Singh dated 11.12.2004 is Exhibit PE/2. As per disclosure
statement of Sandeep s/o Angrej, one shirt was recovered which he was
wearing at the time of commission of alleged offence, recovery memo is
Exhibit-PG/4 and demarcation of place of occurrence is Exhibit-PG/5.
Again on the alleged disclosure statement of Sandeep @ Roba @ Sonu
s/o Hoshiar Singh, one sickle and Hero Honda motorcycle No. HR-10A-
5412 were recovered vide recovery memo Exhibit-PE/3. Sketch of
sickle is Exhibit-PE/4 and memo regarding demarcation of place of
occurrence is Exhibit-PE/5. In the trial titled "State of Haryana vs.
Dhanna @ Dhanne", during interrogation his disclosure statement was
also recorded on 04.06.2014 and 10.06.2014 which are Exhibit-P7/A and
Exhibit-PW 9/B respectively. Memo regarding the demarcation of place
of occurrence is Exhibit-PW9/C. However, no recovery was effected in
pursuance of aforesaid disclosure statement.
Aforesaid disclosure statements of the accused pertaining to
commission of offence do not aid the case of prosecution to bring home
the guilt of accused under Section 302 read with Section 34 of IPC.
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Onus on the prosecution to connect the recovery of said objects,
recovered on the basis of disclosure statements with the commission of
offence has not been discharged.
28. On the death of SI Mehar Singh Investigating Officer,
investigation and documents prepared by him are proved by examining
recovery witnesses ASI Inderpal PW6 and HC Dharamvir Singh PW8.
Investigating Officer lifted blood stained earth on 07.10.2004 from the
place of occurrence vide recovery memo dated 07.10.2004 Exhibit-PE.
He also recovered blood stained broken handle of sickle from the spot
vide recovery memo Exhibit-PE/1. However, as per prosecution case
disclosure statement of Sandeep @ Roba @ Sonu s/o Hoshiar Singh was
recorded on 11.12.2004 Exhibit PE/2 and on that basis sickle and Hero
Honda motorcycle No. HR-10A-5412 were recovered vide recovery
memo Exhibit-PE/3.
Sketch of sickle is Exhibit-PE/4, according to which
wooden handle of sickle was measuring 15.3 cm and its blade was 22.8
cm. Prosecution has failed to explain that when broken wooden handle
of sickle was already recovered vide recovery memo Exhibit-PE/1 then
how sickle along with wooden handle was again recovered on the basis
of disclosure statement dated 11.12.2004 vide recovery memo Exhibit-
PE/3. It creates serious doubt regarding the alleged weapon of offence
recovered on the basis of disclosure statement of Sandeep @ Roba @
Sonu s/o Hoshiar Singh. There is nothing on record to show that
Investigating Officer made any effort to lift fingerprints from the
wooden handle of sickle recovered from the place of occurrence on
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07.10.2004. Report of Forensic Science Laboratory Exhibit-PB further
shows that no blood was found on Exhibit-3 i.e. shirt and Exhibit-5
Dranti. Report of serological analysis of blood Exhibit-PB/1 shows
human blood on shirt, banian, kachha, pyjama Exhibit-2a to Exhibit-2d,
whereas blood could not be detected on Exhibit-1 and 4 i.e. blood
stained earth and shirt since the material disintegrated. In the light of the
above, alleged recoveries on the basis of disclosure statement do not help
the case of prosecution to bring home the guilt of appellants/accused
beyond the shadow of reasonable doubt.
29. Prosecution has tried to build up enmity as a motive for the
commission of offence on the basis of disclosure statements of the
appellants/convicts which is not admissible. Complainant Ravinder in
his statement given to the police Exhibit-PH claimed that Mintu, Anil
and Dhanna @ Dhanne wanted his brother Sandeep s/o Duli Chand to
join their company in the commission of illegal activities like loots etc.
It is claimed that Sandeep s/o of Duli Chand the deceased victim did not
want to join them and for this reason they nourished grudge against him
and murdered his brother. Mintu one of the accused has tendered into
evidence copy of challan report in FIR No.26 dated 01.02.2002 under
Section 457, 380 of IPC, registered at Police Station City Sonepat
Exhibit-D1 in which Sandeep s/o Duli Chand is arrayed as one of the
accused. There is another copy of challan report in FIR No.24 dated
30.01.2002 under Section 457, 380 of IPC, registered at Police Station
City Sonepat Exhibit-D2 in which Sandeep s/o Duli Chand is again
arrayed as accused. Aforesaid challan reports indicate that deceased
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victim was already involved in other criminal cases. Therefore, the
stand taken by the complainant in his statement Exhibit-PH is not
substantiated to prove culpability of appellants in the commission of the
offence.
30. Learned trial Court while holding appellants/convicts guilty
for the offences under Section 302 read with Section 34 IPC has failed to
consider the relevant facts and evidence on record in the correct
perspective. Material discrepancies in the statements of Savitri mother
of the deceased victim and Ravinder complainant which led to the
acquittal of one of the accused Mintu have not been considered and are
relevant qua the present appellants as well. Learned trial Court has
incorrectly given undue importance to disclosure statements allegedly
given by the appellants/convicts regarding commission of offence. It was
for the prosecution to prove the guilt of appellants/convicts beyond the
shadow of reasonable doubt. Conviction can be based on circumstantial
evidence provided the testimonies of witnesses are consistent and
trustworthy. In the present case, it cannot be held that chain of
circumstances is complete and evidence on record points conclusively to
the guilt of the accused.
As discussed above, in our considered opinion, learned trial
Court has failed to consider the facts, evidence and legal proposition in a
proper manner. Thus, judgment of conviction dated 04.09.2006 and
order of sentence dated 06.09.2006 passed by learned Additional
Sessions Judge, Sonepat qua appellants Sandeep @ Roba @ Sonu s/o
Hoshiar Singh and Sandeep S/o Angrej and judgment of conviction and
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order of sentence dated 21.12.2015 passed by learned Additional
Sessions Judge, Sonepat qua appellant-Dhanna @ Dhanne are not
sustainable. Appellants are entitled to the benefit of doubt on
considering the facts and circumstances as above. Hence both the above
judgments and conviction orders of sentence are set aside. Criminal
appeals i.e. CRA-D-814-DB-2006, CRA-D-692-DB-2006 and CRA-D-
126-DB-2016 preferred by appellants/convicts as referred above are
allowed. Appellants are resultantly acquitted of the charge framed
against them by giving them benefit of doubt. It is informed that
appellant-Sandeep @ Roba @ Sonu is in custody. If not required in any
other case, he be released forthwith. Bail bonds of other appellants
Sandeep and Dhanna @ Dhanne, whose sentence has been suspended, be
discharged.
31. Pending application(s) if any, also stand disposed of
accordingly.
32. Original/photocopy of trial Court record be returned to the
concerned quarter.
(AMARJOT BHATTI) (LISA GILL)
JUDGE JUDGE
05.07.2024
Sunil Devi
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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