JUDGMENT Imtiyaz Murtaza, J.
1. This appeal has been filed against the judgment and order dated 27.1.2005 passed by the Additional Sessions Judge, J.P. Nagar, in S.T. No. 177/2003 whereby the appellant has been convicted under Section 302 I.P.C. and sentenced to death.
2. Criminal reference is for confirmation of the death sentence of appellant.
3. The brief fact of the case as mentioned in the report lodged by Kamar Singh is that he was resident of village Nagla P.S. Gajrola, district J.P. Nagar. His elder daughter Sangeeta was aged about 20 years. On 25.2.2003 at about 3.00 P.M. she had gone to throw cow dung and carried a bottle of water to answer the call of the nature. Uptil 4.00 p.m. when she did not return he, Yogendra Singh and Braham Singh and several other persons started searching her. In the sugarcane field of Tej Pal Singh he found his daughter lying dead. The report was lodged on 25.2.2003 at 8.30 p.m.
4. After the registration of the case, Sub-inspector Devendra Kumar started the investigation and reached at the place of the occurrence alongwith T.P.S. Mullik and sub-inspector G.C. Verma. Sub-inspector M.P. Vimal also reached at the place of the occurrence. On his direction S.I. M.P. Vimal had prepared the inquest report and relevant papers for the post mortem examination, which are Exts. Ka. 6 to 11. The dead body was sealed and handed over to Constables Indra Pal Singh and Kailash Chandra. Blood stained and plain earth also collected by Sub-inspector M.P. Vimal and a shoe of the deceased and a glass bottle were also sealed, recovery memo is Ext. Ka. 14. During the inquest proceedings some hair from the finger of the deceased were collected in a packet, which is Ex. Ka. 15. A blood stained dupatta and shalwar was also sealed and recovery memo was prepared which is Ex. Ka. 16. On the next day he prepared site plan, which is Ex. Ka. 17. He recorded the statement of Veg Ram, Karan Singh and Anil and they disclosed the complicity of Komal. The accused was arrested from a railway platform. Some hair of the accused were taken and a recovery memo was prepared, which is Ex. Ka.2. The accused had confessed to have committed the crime and on his pointing out one Darati from a suger cane field and a blood stained pant and a knicker was also recovered from his house and recovery memo was prepared which is Ex. Ka.4. He prepared the site plan of the place of recovery y of Darati, which is Ex. Ka. 18. On 12.3.2003 he recorded the statements of Mool Chand, Virendra, Sub-inspector G.C. Verma and other police constables and after conclusion of the investigation he submitted the charge sheet, which is Ex. Ka. 19. On 2.4.2003 the articles were sent for chemical examination through the Chief Judicial Magistrate and the reports 7B/1 and 7B/2 of Forensic Laboratory, Agra are on the record.
5. Post mortem on the dead body of Km. Sangeeta was conducted by Dr. Manoranjan Kumar. He noted following ante mortem injuries and in his opinion cause of death was shock and haemorrhage as a result of bleeding from great vessels of neck.
1. Contusion over both eyes (lids blue & Swollen) eyes closed and contusion over upper part of nose.
2. Circular abraded contusion over right cheek 3.5 cm x 3.5 cm.
3. Abraded contusion 3.5 cm x 3.5 cm (circular) around right areola of breast.
4. Circular abraded contusion below right areola 3 cm x 4 cm.
5. Circular abraded contusion 4 cm. x 4 cm. over upper part of left breast just above areola.
6. Circular abraded contusion 4 cm. x 4 cm. below left areola.
7. Incised would extending from right side neck (middle region) to front of neck to left side to back of neck to posterior part of right side 20 cm. x 7 cm. trachea, blood vessels and oesophagus are cut apart.
6. After the submission of the charge sheet, case was committed to the Court of Sessions and the Sessions Judge framed the charge under Section 302 I.P.C.
7. The prosecution examined eight witnesses in all.
8. P.W. 1 Kamar Singh, P.W. 2 Veg Ram, P.W. 3 Anil, P.W. 4 Tej Pal Singh Mullik, P.W. 5 Dr. Manoranjan Kumar, P.W. 6 Sub-inspector M.P. Vimal, P.W. 7 Con. Indra Pal Singh and P.W. 8 Sub-inspector Devendra Kumar. Yogendra Singh was examined as a court witness.
9. The case of the defence is of denial.
10. P.W. 1 Kamar Singh deposed that his daughter Sangeeta on 25.2.2003 had gone to throw cow dung and also carried water in a bottle for returning the call of the nature. It is further alleged that when after about one hour she did not return, he alongwith Yogendra Singh and Brahm Singh started searching his daughter. In the sugarcane field of Tej Pratap Singh, Sangeeta was lying dead. He scribed the report to Virendra Singh and lodged at the police station, which is Ex. Ka. 1.
11. P.W. 2 Veg Ram deposed that on 25.2.2003 at about 4 p.m. he and Karan Singh were going near the sugarcane field of Tej Pal Singh. He heard cries from the field of Tej Pal and saw sugarcane moving. He entered into the sugarcane field and saw that Komal fell Sangeeta on the ground, sitting on her and cutting her neck by a Darati. The girl had caught hold of the hair of the accused. They got frightened and after the death of the girl, Komal took his shirt and went towards the western side alongwith Darati and he went towards his house. There was blood on his pant and thereafter he went towards tube-well. Komal is a bully type of a person. He did not disclose it to anybody. When he became assured that the police would help him only then he had disclosed.
12. P.W. 3 Anil deposed that on 25.2.2003 at about 4 p.m. he was going from Batia to the field of his relative. When he reached near the field of Tej Pal Singh he saw that Komal was coming out from the field of Tej Pal Singh and going towards western side. His pant was stained with blood. In the evening he came to know that the dead body of Sangeeta was found in the sugarcane field of Tej Pal Singh. He knew Komal Singh from before because he had relatives in his village. The investigating officer had recorded his statement on the next day.
13. P.W. 4 is Tej Pal Singh Mullik. He deposed that on 25.2.2003, the case was registered at the police station. The Station Officer Devendra Kumar had started investigation of the case. At that time he was present at the police station and accompanied him to the place of occurrence. The inquest memo was prepared. After the arrest of the accused his hair was taken and sealed in a packet. On the pointing out of the accused Darati was recovered from the sugarcane field. The recovery memo of Darati was prepared, which is Ex. Ka. 3. After the recovery of Darati on the pointing out of Komal a pant and knicker was also recovered which is Ex. Ka. 4.
14. P.W. 5 is Dr. Manoranjan Kumar who had conducted autopsy on the dead body of the deceased.
15. P.W. 6 is Sub-inspector M.P. Vimal. He stated that on 25.2.2003 he had reached at the place of occurrence alongwith Station House Officer. On his direction he had prepared the inquest memo. He had also prepared the sample seals which is Ext. Ka. 6. Challan lash Ext. Ka. 7. Letter to R.I., Ext. Ka. 8, letter to C.M.O., Ext. Ka. 9, photonash is Ext. Ka. 10 and inquest report is Ext. Ka. 11. Copy of the G.D. was prepared by Con. Malkhan Singh which is Ext. Ka. 12. He had also prepared the recovery memo of blood stained and plain earth. He had also prepared the recovery memos of shoes, glass bottle and also recovery memo of hair recovered from the fingers. He had also prepared the recovery memo of blood stained Dupatta and Salwar and prepared its recovery memo. The recovery memos are Ext. Ka. 13 to Ka. 16.
16. P.W. 7 is Con. Indra Pal Singh. He was posted as a constable at P.S. Gajraula on 25.2.2003. On that date at about 11.00 P.M. in the presence of S.H.O., S.I. M.P. Vimal had handed over a sealed dead body alongwith relevant papers. He had handed over the dead body in the same condition on 26.2.2003 at 3.10 P.M. to the doctor. After the post-mortem examination report, dead body alongwith two sealed envelopes alongwith cloths were handed over to him which he had deposited at the police station.
17. P.W. 8 S.I. Devendra Kumar stated that on 25.2.2003 he was posted as Station House Officer P.S. Gajraula. This case was registered in his presence and he had commenced investigation. He had recorded the statement of the informant and reached at the place of occurrence. On his direction S.I. M.P. Vimal had prepared inquest memo and other relevant papers which are Ext. Ka. 6 to Ka. 11. He had handed over the dead body of Sangeeta to Con. Indra Pal Singh and Kailash Chandra for the post-mortem. During the prepareation of inquest memo recovery memo of blood stained and plain earth was prepared. In the presence of witnesses Brahm Singh and Yogendra, a shoe of the deceased and bottle of glass was also sealed. The recovery memo is Ext. Ka. 14. In the presence of the witnesses a recovery memo of hair taken out from the fingers of the deceased was prepared which is Ext. Ka. 15. The blood stained Dupatta and Salwar were also taken into possession and recovery memo Ext. Ka. 16 was prepared. On the next day site plan of the place of occurrence was prepared which is Ext. Ka. 17. He had recorded the state of Veg Ram, Karan Singh and Anil. He had also arrested the accused. At about 4.25 P.M. hair of the accused were taken into possession and recovery memo, Ext. Ka. 2 was prepared. The accused had also confessed his crime and agreed to get the Darat and blood stained pant and Knickers recovered. He had also associated Mool Chand and Virendra as a witness of recovery. On the pointing out of the accused, a blood stained Darati was recovered. Thereafter, one knicker and pant were taken into possession and recovery memo Ext. Ka. 4 was prepared. He had also prepared the site plan of the place of recovery which is Ext. Ka. 18. On 12.3.2003 he had recorded the statement of Mool Chand and Virendra Singh. On 15.3.2003 he recorded the statement of S.I., J.C. Verma, Con. Ram Prakash, Con. Brahm Pal and lady Con. Sunil Tyagi. On 19.3.2003 he recorded the statement of S.I., T.P.S. Malik, S.I., M.P. Vimal and submitted charge sheet on the same day. The charge sheet is Ext. Ka. 19. On 2.4.2003 he had sent the articles for chemical analysis through C.J.M. The report of scientific laboratory is paper No. 7B/1 and 7B/2.
18. The court had examined Yogendra Singh as C.W. 1. He deposed that he had seen the dead body of Sangeeta. Some hair were recovered from her fingers. These hair were taken out by Brahm Singh and he had caught hold of the wrist of the deceased and they were kept in a cloth and he had also signed the recovery memo.
19. The case of the appellant is of denial. He stated that witnesses are deposing against him on account of enmity. He also stated that police had taken his hair and sealed them in two packets and he did not produce any witness in his defence.
20. The Sessions Judge after considering the evidence on record convicted the appellant, as aforesaid. Hence this appeal.
21. We have heard Sri D.N. Wali counsel for the appellant and A.G.A. for the State and Sri Raj Kumar Khanna counsel for the complainant and perused the entire record.
22. Initially, this case was of direct as well as of circumstantial evidence. The eye witness account was furnished by P.W. 2, Veg Ram. His testimony was rejected by the Sessions Judge. We have examined the reasons given by the Sessions Judge in rejecting his testimony. The Sessions Judge had observed that Veg Ram is the real uncle of the informant and he behaves unnaturally. He had witnessed the occurrence then went away to his tube-well and did not disclose it to any one till the police arrived. The conduct of this witness is completely out of natural order. A close relation cannot keep to himself the fact of his witnessing a severe offence being committed on a family member and go away without reaction. We fully agree with the reasoning given by the Sessions Judge in rejecting his testimony.
23. Now this case remains of circumstantial evidence only. It has been laid down by the Apex Court that where a 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. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
24. In the case of Padala Veera Reddy v. State of Andhra Pradesh 1991 SCC (Crl.) 407 the Apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
26. The first circumstance against the appellant is that he was seen coming out of the field and his pants had blood stains. In support of the circumstance the testimony is of P.W. 3, Anil. He stated that on 25.2.2003 at about 4.00 P.M. he was going to the field of his relative through "BATIYA" and reached on the Mend of fields of Tej Pal and Vijyendra, saw Komal Singh coming out of the field of sugarcane of Tej Pal Singh. His pants were blood stained. He further deposed that in the evening he heard that the dead body of Sangeeta was found in the field of Tej Pal's sugarcane field. The Sessions Judge had relied upon this circumstance. We have carefully examined his testimony and find it unsafe to place reliance due to the following reasons :
(1) He is the brother-in-law of the informant, though not real. Sangeeta was his niece. Being a close relative he did not inform the police immediately after their arrival in the night of 25.2.2003. His statement was recorded following day.
(2) He lives about 20 - 25 Kms. away from the place of occurrence. He had left his house at about 10.00 A.M. by a bus but he took about 6 hours in covering this distance. He could not tell the time of his reaching. He had reached at the house of his brother-in-law but did not inform any one. His conduct is very unnatural.
(3) There was reason for his deposing against the appellant. He admitted that Mukesh was his sister-in-law. The sister of Mukesh was married with Raj Pal, uncle of the appellant. He alongwith his family members had gone to jail for the murder of his sister-in-law Mukesh. He did not know whether appellant was doing pairivi of the case of murder of Mukesh. He had not denied that appellant was not doing pairivi of the said case. He only expressed his ignorance.
(4) The house of the informant is hardly 100 meters away from the field of Tej Pal but he did not inform any one after the recovery of the dead body that he had seen appellant coming out of the field of Tej Pal.
27. The counsel for the complainant placed reliance on the decision of the Apex Court Ashok Kr. Pandey v. State and Main Pal v. State where it was observed that every person cannot act or react in a particular or very same way and it would depend upon the mental set up of the person concerned and the extent and nature of fear generated and consequently on the spot his reaction in a particular way has to be viewed on the totality of all such circumstances. We have considered the decisions cited by the counsel for the complainant and in our opinion the facts of the present case are totally different. The decisions cited by the counsel are with respect to the conduct of the eye witnesses on the spot. In the present case we have to examine the testimony of a witness with regard to a particular circumstance. We have carefully examined his testimony and in our opinion his testimony is to be rejected on the same grounds on which Sessions Judge had rejected the testimony of eye witness P.W.2 Veg Ram.
28. The next circumstance is recovery of the blood stained cloths and Darati under Section 27 of the Evidence Act on the pointing out of the appellant. The serologist report shows that human blood was found. The blood of group B was found on Salwar, Dupatta and pant. We have considered this circumstance carefully but we do not find safe to rely upon this circumstance also on the following grounds:
1. The recovery memo shows that the cloths were washed. The evidence on the record is that one pant and one knicker was recovered on the pointing out of the appellant which were found wrapped. The investigating officer did not mention the size of the stains on the pants. The serologist report shows that the stains were of specific dimensions. Such specific dimensions of blood are not possible when the cloth was washed.
2. One more circumstance is that the recoveries were made on 26.2.2003 and according to the testimony of the investigating officer, they were dispatched for analysis on 2.4.2003. There is nothing on the record to show as to where these articles were kept. The link evidence in this case is missing. The Apex Court in the case of Vatsala v. State of Kerala 1993 Supp.(3) Supreme Court Cases 665 did not relied upon recoveries when link evidence was missing and observed that suffice it to say that the articles seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the chemical examiner. There is a big gap and an important missing link. In the Mahazar Ex. P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure unfortunately for the prosecution even P.W. 6 does not say that he continued to keep it in his custody under seal till it was produced in the court on January, 14, 1988. The evidence given by P.W. 6 police Sub Inspector, who seized the articles is absolutely silent as to what he did with the seized article till it was produced in the court. In view of the above and in the absence of any link evidence, absolute reliance cannot be placed on this circumstance also
3. Another reason for doubting the genuineness of this incriminating circumstance is that according to the testimony of the investigating officer, the charge sheet was submitted on 19.3.2003 and he had sent the articles for analysis on 2.4.2003 through Chief Judicial Magistrate. The analysis report shows that the packets were received through the letter of C.J.M. dated 26.3.2003 and he had received the articles on 1.4.2003. There is some error in the testimony of the investigating officer. The articles cannot reach its destination prior to its dispatch.
4. The recovery of dupatta and shalwar shows that at the time of recovery only dupatta was found blood stained. The recovery memo does not show that shalwar was also blood stained. The injuries on the dead body shows that she had received injury on the neck only and in such circumstances there is little chance that shalwar would also be blood stained. But the report of the serologist shows that blood stains were found on Shalwar also.
29. The counsel for the informant placed reliance on the decision in the case of Pradeep Singh v. State of Rajasthan AIR 2004 SC 378 on the ground that the accused had not offered any explanation about the blood stains on his pants. We have considered the submission of the counsel for the informant and perused the decision. In our opinion this submission has no substance because the case of the appellant is of denial and the investigating officer had also not noted the blood stains on the pant. The presence of blood stains on the pant in this case is doubtful.
30. The last incriminating circumstance is similarity of hair between the hair recovered from the fingers of the deceased and hair of the appellant. In this circumstance also link evidence is missing. The hair were seized from the fingers of the deceased on 25.2.2003 and the hair of the appellant were taken into possession on 26.2.2003 and they were dispatched for analysis on 2.4.2003. The analysis report also is not conclusive in nature. The report shows that the hair in both the packets were found of human origin. Some of the hair of packet No. 2 were similar to the hair of packet No. 1. In the case of Himanshu Pahari v. State 1986 Cr.LJ 622 (Cal) it was observed:
"the science of comparison of hair has not yet reached perfection like the science of comparison of finger prints."
It is also necessary to point out that it is not clear whether hair after seizure was kept in proper custody in a sealed condition or not. The evidence is also silent as in the case of other recoveries under Section 27 of the Evidence Act, which we have already discussed hereinbefore. In view of this, we are of the opinion that this circumstance is not conclusive in nature.
31. The counsel for the informant has placed reliance on the decision of the Apex Court in the cases of Paras Yadav v. State of Bihar reported in 1999 SCC (Crl.) 104, Dhanaj Singh @ Shera v. State of Punjab and Gopal v. State of U.P. 1999 ACC 98 on the ground that omission and latches on the part of the investigating agency are immaterial. We have considered the submission of the counsel and the decision relied upon. There is no dispute that omission and latches on the part of the investigating agency are immaterial but it does not absolve the prosecution of the burden to connect the accused with the crime. The circumstantial evidence should be overwhelming as to exclude the hypothesis of the innocence of the accused unfortunately, such circumstantial links are lacking in the present case.
32. Therefore, in our opinion the circumstances relied on by the prosecution in this case are neither fully established nor are consistent with the hypothesis of the guilt of the accused.
33. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the family of the victim in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
34. In view of the above the appeal is allowed. The appellant is acquitted of the charge. He is in jail. He shall be released forthwith unless required in any other case.
35. Criminal reference for confirmation of death sentence is also rejected.
36. Office is directed to send a copy of this order to the court within a week for compliance.