Punjab-Haryana High CourtRajesh vs State Of Haryana on 1 May, 2009Author:Jora SinghBench:Jasbir SinghCrl. Appeal No. 207-DB of 2008.              1



IN THE HIGH COURT OF PUNJAB AND HARYANA
       AT CHANDIGARH.

                       Crl. Appeal No. 207-DB of 2008.

                       DECIDED ON : 01.05.2009


Rajesh

                                       Appellant.

                    VERSUS

State of Haryana.
                                      Respondent.



CORAM :HON'BLE MR. JUSTICE JASBIR SINGH.
       HON'BLE MR. JUSTICE JORA SINGH


Present: Mr. Sukhwinder Singh Chatrath, Advocate,
         for the appellant.

         Mr. S.S.Randhawa, Additional Advocate
         General, Haryana.


JORA SINGH,J.Through the instant criminal appeal, Rajesh

son of Parkash Chander,      has impugned the judgment

dated 14.1.2008 and order dated 16.1.2008, rendered by

the Ld. Sessions Judge, Fatehabad      in Sessions case No.

69 of 2003, Sessions Trial No. 104 of 19.11.2003 bearing

First Information Report No. 265         dated 03.12.2002

registered   at   Police   Station   City,   Tohana,   underCrl. Appeal No. 207-DB of 2008.                  2Sections   302/201of    the     Indian    Penal    Code.      The

appellant-accused was convicted underSection               302of

the Indian Penal Code and            was      sentenced to life

imprisonment     and to pay a fine of Rs. 10,000/-. In

default of payment of fine,        he was directed to further

undergo simple imprisonment            for a period of three

months. The appellant-accused was further sentenced to

undergo rigorous imprisonment for a period of one year

and to pay a fine of Rs.3000/-. In default of payment of

fine, he was directed to undergo simple imprisonment

for a period of 15 days. Both the substantive sentences

were, however, ordered to run concurrently.Prosecution    story,      in    brief,   is   that    on

19.11.2002, written complaint was presented by Satbir

Sharma before the Station House Officer, Police Station

Tohana at 9.10 P.M. on the allegation that he is resident

of village Santhali. His younger brother             Ved Parkash

was the employee of Home Guard and was on duty since

21.9.2002 in the Godowns of ARDC, situated at Simbal

Road, Tohana. Ved Parkash had taken a room on rent

from Hardayal Singh, a retired Patwari in Indira Colony

and in that room, he had kept his luggage.Krishan son of Kartar Singh was also anCrl. Appeal No. 207-DB of 2008.              3employee of the Home Guard Department alongwith Ved

Parkash. Krishan was having cordial relation with Ved

Parkash and used to visit his room frequently. On 14.

11.2002, Kirpal came to his house in village Santhali and

told that Ved Parkash and his wife were telling to visit

their house on account of Diwali festival and was to join

his duty on 5.11.2002 but Ved Parkash failed to join his

duty till today. Satbir replied that Ved Parkash failed to

visit his house till today. As per information supplied by

Krishan, complainant and his family members made an

effort to locate Ved Parkash, but he was not available.

On inquiry, they came to know that Ved Parkash had

friendship with Krishan, Rejesh and Pammi.            One iron

cot, attaché case, photograph and some other household

articles were found missing from this room                 Ved

Parkash is missing from    the room on rent situated at

Tohana one day earlier to Diwali. In view of the written

complaint   of Satbir   dated   19.11.2002       a   DDR   was

recorded. Copy of the same is Ex.P-30.On    3.12.2002, Satbir had gone to Police

Station, Tohana   then lodged report with the police to

the effect that his brother Ved Parkash was          serving in

the Home Guard department. He had taken one room onCrl. Appeal No. 207-DB of 2008.             4rent from Hardayal Singh.         On 4.11.2002, Krishan

reported that Ved Parkash         is absent from duty.

Number of articles were missing from his room and an

effort was made to locate him (Ved Parkash) but he is

not traceable. Ved Parkash used       to visit the house of

Rajesh, Krishan and Pammi frequently.           DDR   dated

19.11.2002 was got recorded. Today i.e. 3.12.2002, he

came to Tohana in search of Ved Parkash,         Zile Singh

resident of Tohana met him         and reported that on

2.11.2002, Ved Parkash was seen while quarrelling with

Rajesh while present near the bridge of Bhakhra canal

towards canal colony. While quarrelling, they had gone

towards canal colony Rajesh was heard while saying that

he (Ved Parkash) had an evil eye on his sister. Now he is

very much certain that Ved Parkash was kidnapped by

Rajesh with an intention to eliminate him. Ved Parkash

used to wear white kurta and Pyjama and keep same

papers and photographs of the entire family. In view of

the written complaint of Satbir First Information Report

underSection 364of the Indian Penal Code was

recorded.Police Party headed by Inspector Subhash

Chander      along with complainant    Satbir went to theCrl. Appeal No. 207-DB of 2008.              5Godowns of ARDC, Tohana. Statement of the witnesses

were recorded. Rough site plan with correct marginal

note was prepared.On 6.12.2002, police party headed by Inspector

Subhash Chander was present near Kenchi Chowk,

Tohana, where Sukhi Ram produced accused before the

police. Rajesh was interrogated who suffered disclosure

statement Ex P-20 and in pursuance of the same, he got

recovered one attachi case, one woolen chaddar, one

woolen blanket chakdar, one cotton Dari, one tiffen of

steel, one transistor, one small dolli of steel, one glass of

steel etc and a purse.    Recovered articles were sealed

with the seal "SC". Sealed parcels were taken into police

possession vide memo attested by the witnesses. After

return to the Police Station, the case property was

deposited with the MHC.On 11.2.2002, in pursuance of the disclosure

statement Ex.P-16 sufferred by Rajesh, he (Rajesh) got

recovered lock and key from the specified place. Lock

and key were sealed with the seal "SC" and were taken

into police possession vide memo duly attested by

witnesses.On 8.11.2002, police party headed by AssistantCrl. Appeal No. 207-DB of 2008.             6Sub Inspector       Suraj Mal, Police Station Rania in

connection with patrol duty and excise checking was

present in the area of village Bahiya, where Harnam

Singh Sarpanch met the police party and reported that

while present near the bridge of canal then sighted two

dead bodies. Entry was made in the Roznamcha Ex.P-3.

Then police party headed by Assistant Sub Inspector

Suraj Mal along with Harnam Slingh and Krishan

Chowkidar had gone to the spot where dead bodies were

lying. Inquest reports were prepared. Dead bodies were

sent to Civil Hospital for post mortem examination. On

9.11.2002, doctor had handed over kurta and Pyjama

and the same were taken into police possession.       After

post mortem examination, dead bodies of un-known

persons   were      got   cremated     through    Municipal

Committee, Sirsa.On   12.12.2002,    police   party     headed   by

Assistant Sub Inspector Nihal Singh, Tohana along with

Satbir had gone to Police Station Rania, MHC had

produced before them the clothes worn by the deceased.

Satbir had identified the clothes of his deceased brother

Ved Parkash. Clothes were sealed with the seal bearing

impression "NS".Crl. Appeal No. 207-DB of 2008.                  7After    the     completion   of   investigation,     the

accused was challaned.Vide order dated 10.2.2003 by Sub Divisional

Judicial Magistrate, Tohana, case was committed to the

Court of Session, Fatehabad.Accused was charged underSections 302/201IPC to which he pleaded not guilty and claimed trial.In   order       to    substantiate   its    case,    the

prosecution examined as many as 12 witnesses.PW-1 Assistant Sub Inspector Suraj Mal stated

that on 8.11.2002, he along with other police officials

was present in the area of village Rania. Harnam Singh

Sarpanch reported that he has noticed two dead bodies

lying near the bridge of canal. Chowkidar Krishan was

also joined in the party.         Police party had gone to the

spot where dead bodies were lying. Inquest reports were

prepared. Dead bodies were sent to the hospital for post

mortem examination.             Through Municipal Committee,

Sirsa,   the      bodies   of    unknown     persons    were    got

cremated.PW-2     Assistant      Sub   Inspector     Guljari   Lal

stated that on 12.12.2002, he was serving as MHC

Rania. Assistant Sub Inspector Nihal Singh along withCrl. Appeal No. 207-DB of 2008.            8Satbir    came to Police Station   and produced shirt and

Pyjama before Assistant Sub Inspector Guljari Lal and

the same were sealed by Assistant Sub Inspector Nihal

Singh. Post-mortem report, inquest report and the

clothes were    taken into police possession vide memo

attested by the witnesses.PW-3 Pala Ram Patwari had prepared scaled site

plan Ex.P-13.PW-4 Kewal Singh stated that on 2.11.2002,

Ved Parkash was on duty from 4 P.M. to 12 night at the

ARDC godown then from 12 mid night to 8 A.M. On

2.12.2002, Ved Parkash was seen with Rajesh. Ved

Parkash     had gone for taking meals with Rajesh after

that he did not turn up.PW-5 Hardayal Singh stated that on 2.11.2002

at about 8/8.30 P.M.       he had seen Ved Parkash with

Rajesh.    On 14.11.2002, shetter    of the room on rent

with Ved Parkash was found half opened. No article was

lying in the room, then he had gone to enquire about Ved

Parkash on 15.11.2002 Satbir came to know about the

whereabouts of Ved Parkash.PW-6 Zile Singh stated that on 2.11.2002 at

9/9.30 P.M. while present near the bridge of canal thenCrl. Appeal No. 207-DB of 2008.              9sighted Ved Parkash and Rajesh           while abusing each

other. Rajesh was saying to Ved Parkash that he (Ved

Parkash) had an evil eye on his sister.PW-7     Dr.   Ashok    Gupta      stated   that   on

9.11.2002 at 1 P.M.,      he had conducted post mortemexamination on the unknown dead bodies and observed

as under:-"The length of the body was 5' x 6". There

was no ligature mark on the neck. The dead body was of

a adult male in advance stage of putrefaction with eye

balls protruding out of sockets tongue coming out of oval

cavity abdomen was burst open.         Body was soiled with

mud and weeds at places body was covered by adulty

white kurta and loose loin cloth extrimities like finger

tips toes tip of the nose were eaten up and bones

protruding.    Body was in semi flexed position with no

evident injury.   Rigor mortis was in passing off stage.

Scalp, skull and vertebrate healthy. Membrances brain

spinal cord congested and not opended.Continued:     Scalp   hair   easily come    out on

pulling and skin get peeled off with little      effort.    On

dissection, lungs were edematous with rib marking on

surface and lung taken out      easily sinks in water.      OnCrl. Appeal No. 207-DB of 2008.           10cut section lung exudes sero sensuous froathy material.

Larynx and trachea contained mud, weeds, stomach

contained about 150 ml, semi digested food material with

no smell of alcohol, small intestines healthy contained

chyme. All other organs were healthy.      However, the

stomach      contained muddy water with small weeds.

Mouth and esophagus contained small amount of mud

and weeds.As per opinion of the doctor, the cause of death

in this case was asphyxia as a consequence of drowning.

Probable time that elapsed between injury and death

within few minutes and between death and post mortem

within 3 to 7 days.PW-8 Assistant Sub Inspector Nihal Singh

stated that on 12.12.2002, he along with Satbir       had

gone to Police Station Rania. MHC had produced before

him Pyjama, shirt and underwear      of the deceased Ved

Parkash and the same were made into sealed parcel

bearing impression "NS".PW-9 Satbir is the complainant.        He has

supported the prosecution story.PW-10 Sukhi Ram stated that on 6.12.2002,

Rajesh came to his house and made extra judicialCrl. Appeal No. 207-DB of 2008.                   11confession    that     Ved    Parkash      was     murdered      on

2.11.2002. Dead body was thrown in the Bhakhra canal.

Room of Ved Parkash was opened. Articles lying in the

room were found stolen. Accused was produced before

the police and as per disclosure statement suffered by

the accused, different articles were got recovered from

the specified place.PW-11 Inspector Subhash Chander had partly

investigated the case in hand.PW-12 MHC Bahadur Singh                    brought the

record and proved copy of DDR Ex.P-30.After the close of prosecution evidence, the

accused was examined underSection 313Cr.P.C. to

explain the allegations levelled against him.             Accused

denied all the allegations and claimed to be innocent.Defence version of the accused is that he was

detained by the police before the present occurrence

merely   on   suspicion      and   later   on    false   case   was

registered against them.Opportunity was given to lead defence but no

defence was led.We    have     heard      Mr.   S.S.Chatrath,     learned

counsel for the appellant-accused, Mr. S.S.Randhawa,Crl. Appeal No. 207-DB of 2008.              12Additional Advocate General, Haryana and have gone

through the file very carefully and thoroughly with their

assistance.Learned    counsel   for   the   appellant-accused

argued that it was a case of blind murder. There was no

eye witness.    Case is based on circumstantial evidence.

There was no motive to commit the crime. Ved Parkash

was employee of the Home Guard Department. He was

on duty on 2.11.2002 as per Kewal Singh. After that, he

was seen in the company of the appellant-accused.

Appellant-accused made extra judicial confession but

story qua last seen extra judicial confession is doubtful.

Prosecution failed to establish beyond doubt that dead

body alleged to be recovered was of Ved Parkash.Mr.    S.S.Randhawa,       Additional     Advocate

General, Haryana, argued that Ved Parkash was seen

last time in the company of the appellant-accused. Dead

body was recovered on 8th November,2000.           From the

clothes worn by the deceased, dead body was identified

to be that of the deceased Ved Parkash. Appellant-

accused   made extra judicial confession          and as per

disclosure statement he got recovered lock and key of

the room of the deceased. Deceased had an evil eye onCrl. Appeal No. 207-DB of 2008.               13the sister of the appellant-accused, due to this grudge

the   deceased was murdered by the appellant-accused.

After murder by the appellant-accused, dead body was

thrown into a canal.First submission of the learned defence counsel

for the appellant-accused was that it was a blind murder.

There is no eye witness and no motive to commit the

crime. Motive assumes importance when case is based

on    circumstantial evidence. Submission of learned

counsel      for   the   appellant-accused   carries   weight.

Appellant-accused is the resident of Indira Colony,

Tohana, whereas the deceased was the resident of village

Santhali.    According    to   the   prosecution   story,   the

deceased had an evil eye on the sister of the appellant-

accused but in support of this allegation, no evidence on

the file. Appellant-accused was not employee with           the

deceased. Appellant-accused was not related            to the

deceased.     Suppose, the appellant-accused used to visit

the quarter of the deceased or the deceased used to visit

of the house of the appellant-accused and deceased had

an evil eye on the sister of the appellant-accused, then

story seems to be not reasonable one. Before the present

occurrence, no complaint from the side of the appellant-Crl. Appeal No. 207-DB of 2008.           14accused against the deceased. No complaint from the

side of the complainant party that appellant-accused is

levelling false allegation against the accused. Motive is

double edged weapon and is always in the heart of the

accused.    Accused is to see how, why and where the

crime is to be committed. Motive can be   for implication

of the accused, at the same time to commit the crime.

But the motive assumes importance when case is based

on circumstantial evidence. If we presume that there

was a motive to commit the crime, then on this short

ground , neither the appellant-accused can be convicted,

nor the prosecution story can be discarded.Next   submission of the learned defence

counsel for the appellant-accused was that evidence qua

last seen   is not genuine.   Witnesses were introduced

simply to connect the accused with the crime. Submssion

of the defence counsel carries little weight. Deceased

was employee of the Home Guard Department and as per

Kewal Singh ( PW-4) he was on duty from 12 mid night

to 8 A.M. on 2.1.2002 and had seen Ved Parkash with

the appellant-accused at 8 P.M. on 2.11.2002. When duty

of Kewal Singh     was to start at 12 during night time

then   question is how Kewal Singh had seen VedCrl. Appeal No. 207-DB of 2008.          15Parkash in the company of the appellant-accused at 8

P.M. Deceased was the employee of the Home Guard

Department. While on duty employee of the Home Guard

Department wear uniform but Kewal Singh stated that

while on duty, Ved Parkash was not in uniform. Before

the present occurrence, Ved Parkash      while on duty,

used to wear uniform. Very strange that while on duty

on 2.11.2002, Ved Parkash was not in uniform. Earlier

to the occurrence, Ved Parkash used to wear uniform

while on duty then question is why on the date of

occurrence,   he was not in uniform. Purposely, Kewal

Singh stated that Ved Parkash while on duty was     not

wearing uniform because when dead body was recovered

then shirt and dhoti was found on the person of the dead

body.   Hardayal Singh (PW5) stated that on 2.11.2002

he had seen Ved Parkash in the company of appellant-

accused at about 8/8.30 P.M. while present in his room.

One room of Hardayal Singh        was on rent with Ved

Parkash and if Hardayal Singh had seen Ved Parkash

with the appellant-accused at about 8/8.30 P.M. in his

room then question is how Ved Parkash was on duty

from 4 P.M. on 2.11.2002. If at 8/8.30 P.M. Ved Parkash

with the appellant-accused was      in his room, thenCrl. Appeal No. 207-DB of 2008.            16statement of Kewal Singh (PW4) is not correct one that

Ved Parkash was seen in the company of the appellant-

accused at 8 P.M.      while on duty. On the day of

occurrence, Ved Parkash was on duty at the godown of

ARDC, Tohana. Either Ved Parkash was not on duty

from 4 P.M. to onwards or Ved Parkash was not in his

room with the appellant-accused at 8/8.30 P.M. as stated

by Hardayal Singh landlord.Zile Singh (PW6) is the next witness qua last

seen   and stated that on 2.11.2002 at 9/9.30 P.M.,    he

had seen the appellant-accused while quarrelling with

Ved Parkash but statement of Zile Singh is contrary to

the prosecution story because he had seen the deceased

with the appellant-accused while quarrelling    at 9/9.30

P.M. on 2.11.2002, then why he did not report the

matter to the police Zile Singh had gone 10/12 days later

to the Police Station with Satbir, Sukhi Ram, Rajinder,

Krishan, Kewal etc. and their statements were recorded.

If appellant-accused   was seen while quarrelling    with

the deceased on 2.11.2002 and Zile Singh had gone to

Police Station after   10/12 days and    Satbir was also

present with him, then statement        of Satbir   is not

correct one that on 3.12.2002, Zile Singh had reportedCrl. Appeal No. 207-DB of 2008.             17that on 2.11.2002 he (Zile Singh) had seen Rajesh while

quarrelling   with   Ved   Parkash.   In   the   middle    of

November,2002 Satbir and Zile Singh        had gone to the

Police Station, then Zile Singh could easily report to the

police that on 2.11.2002, he had seen the appellant-

accused while quarrelling with Ved Parkash.        Case of

Satbir complainant is that on 3.12.2002, Zile Singh met

him, then he reported that on 2.11.2002, he (Zile Singh)

had seen Ved Parkash while quarrelling with Rajesh.

After information was received from Zile Singh on

3.12.2002 then Satbir      got recorded First Information

Report Ex.P-25. Statement of Zile Singh qua last seen is

not correct one. Zile Singh is the resident of Tohana

before the present occurrence, he was not known to the

complainant. Zile Singh had not seen the complainant or

the   deceased before 3.12.2002, Satbir to admitted in

cross examination that for the first time, he had seen

Zile Singh on 3.12.2002 earlier that he was not known to

him but on that day he had met Zile Singh at the shop of

one property dealer. When before 3.12.2002 Zile Singh

was not known to the complainant party then question is

how Zile Singh had gone to the Police Station with Satbir

after 10/12 days when Zile Singh           had seen       theCrl. Appeal No. 207-DB of 2008.           18appellant-accused while quarrelling with the deceased on

2.1.2002. When complainant was not known to Zile

Singh, then how Zile Singh can report to Satbir that he

had seen Ved Parkash     while quarrelling with Rajesh

particularly, when Rajesh was also not known      to Zile

Singh.Next     submission of the learned defence

counsel for the appellant-accused was that appellant-

accused had made extra judicial confession before Sukhi

Ram but statement of Sukhi Ram qua extra judicial

confession is not correct one because Sukhi Ram was not

holding any position. He had no say in the police

department. Sukhi Ram was not expected to protect the

appellant-accused. Extra judicial confession is normally

made before a person who is in a position to protect the

accused from police torture. Submission of the learned

defence counsel is correct one. Sukhi Ram (PW10) is the

resident of village Samain whereas appellant-accused is

the resident of Tohana. Tohana is at a distance of 10

kilometer from Samain. Sukhi Ram was not on visiting

terms with the appellant-accused. Deceased was also not

known to Sukhi Ram. As per extra judicial confession,

firstly, the appellant-accused and the deceased had takenCrl. Appeal No. 207-DB of 2008.             19liquor, then appellant-accused gave 2-3 brick blows on

the head of Ved Parkash. After the death of Ved

Parkash, dead body was thrown         into the canal. Sukhi

Ram admitted that Police Station falls on the way while

going to    Kenchi Chowk where appellant-accused was

produced before the police station.As discussed earlier, dead body was recovered

on 18th November,2000 from Canal minor in the area of

Rania. Post mortem examination was conducted. Dead

body was cremated by Municipal Committee, Sirsa as

unidentified   Doctor Ashok Gupta (PW-7) admitted that

there was no injury on the person of dead body. Dead

body was not identifiable and          death was due to

asphyxia,   as a consequence   of drowning. No legature

mark was noticed. Body was soiled with mud and weeds.

No smell of alcohol    was noticed. Larynx and trachea

found contained mud, seeds.    That means story of extra

judicial confession is not correct one. After murder, with

a brick why no injury was noted on the head of the

deceased. After death, how mud and weeds can be found

in the larynx and trachea. Sukhi Ram was not known to

the appellant-accused. Sukhi Ram was not holding any

position. He had no say in the police department. VillageCrl. Appeal No. 207-DB of 2008.                  20of Sukhi Ram was at a distance of 10 kilometer from the

village of the appellant-accused. Sukhi Ram was not on

visiting terms with the appellant-accused. If Sukhi Ram

had gone to produce the appellant-accused before the

police, then why the appellant-accused was not produced

before the police      station falling on the way.          After

crossing the police station, there was no idea that

appellant-accused is to       be produced      before the police

present near the Kenchi Chowk. Sukhi Ram (PW-10) was

with Zile Singh, when they had gone to the Police Station

in the middle November,2002 when Sukhi Ram was not

known either to the complainant party or to the accused

then question is why Sukhi Ram had accompanied Zile

Singh    to   the    Police    Station    in    the   middle   of

November,2002 and why the appellant-accused preferred

to make extra judicial confession before this witness.

Sukhi Ram was introduced simply to strengthen the

prosecution story.Defence     counsel    for     the   appellant-accused

argued    that    occurrence    is     dated   2.11.2002.   First

Information Report was got registered on 3.12.2002. If

Ved     Parkash     was found missing with effect from

2.11.2002, then why no missing report. Secondly, deadCrl. Appeal No. 207-DB of 2008.          21body was recovered on 8th November, 2002 then the

prosecution failed to establish that the dead body if

recovered was of Ved Parkash. Submission of the

learned defence counsel is correct one. According to the

evidence, Ved Parkash while on duty      after 2.11.2002

was found missing. On 14.11.2002, Krishan           had

reported to Satbir complainant    that Ved Parkash was

not on duty after 2.11.2002. As per information supplied

by Krishan on 14.11.2002, missing report was lodged on

19.11.2002. Ex.P-30 is the missing report at 9.10 P.M.

Ved Parkash while on duty failed to visit     his house.

Intimation was with the complainant party that Ved

Parkash is not on duty then after receipt of information

on 14.11.2002, why no report was lodged. Report was

ultimately lodged on 19.11.2002. On 3.12.2002, Zile

Singh reported to the complainant that on 2.11.2002 he

(Zile Singh) had seen Rajesh and the appellant-accused

while quarrelling with Ved Parkash. On receipt of

intimation from Zile Singh on 3.12.2002, then Satbir got

recorded the First Information Report Ex.P-25.On 8.11.2002 the        police party headed by

Assistant Sub Inspector Suraj Mal Police Station Rania

was present in the area of Bahiya then Harnam SinghCrl. Appeal No. 207-DB of 2008.            22reported that two dead bodies were noticed in the canal

minor. As per information, Assistant Sub Inspector

Suraj Mal had gone to the spot. Two dead bodies were

recovered from the canal. Entry was made in the

Roznamcha.      Inquest   reports   were   prepared.   Post

mortem examination was got conducted,           then dead

bodies were cremated through Municipal Committee,

Sirsa. Dead body was not identifiable. Firstly, Harnam

Singh was not examined, who had informed Assistant

Sub Inspector Suraj Mal that two dead bodies are lying

in the canal. If intimation was correct, then the question

is why photographs of the dead bodies were not got

clicked from the photographer. As per Dr. Ashok Gupta,

body was not identifiable. Kurta and Dhoti were found

on the person of the deceased.      Question is whether

Kurta and Dhoti were found on the person of dead body

"A" or on the person of dead body "B". Whether dead

body "A" was of Ved Parkash or dead body 'B" of Ved

Parkash but one thing is clear that only Kurta and Dhoti

were found present on the person of deceased, whereas

Assistant Sub Inspector Suraj Mal stated that Pyjama

and shirt were produced before the police and the same

were taken into police possession on 9.11.2002.        WhenCrl. Appeal No. 207-DB of 2008.              23Pyjama was not recovered from the person of the

deceased, then no question of     production of Pyjama

before Assistant Sub Inspector Suraj Mal. After post-

mortem examination, dead body was got cremated

through Municipal Committee, Sirsa as unidentified. No

explanation why photographs of the dead bodies were

not got clicked from the photographer. Assistant Sub

Inspector Nihal Singh stated that on 12.12.2002, he

along with Satbir had gone to Police Station Rania shirt,

Pyjama and underwear were produced by the MHC

before the police party and the same were made into

sealed parcel and the sealed parcel was taken into police

possession. When underwear and Pyjama were not

recovered, then the question is how MHC had produced

Pyjama   and     underwear    along   with    shirt   before

Assistant Sub Inspector Nihal Singh. After post mortem

examination, clothes worn by the deceased were not

sealed by Assistant Sub Inspector Suraj Mal or MHC.

Doctor has not recovered Pyjama from the person of the

deceased, but Assistant Sub Inspector    Suraj Mal had

taken into police possession Pyjama and shirt. Again as

per the statement of Assistant Sub Inspector Suraj Mal,

MHC had produced Pyjama, shirt and underwear beforeCrl. Appeal No. 207-DB of 2008.                          24Assistant      Sub          Inspector      Nihal     Singh.       Suppose

underwear, shirt and Pyjama were taken into police

possession by Assistant Sub Inspector Nihal Singh, then

next   point      is    whether           clothes    taken     into    police

possession were of the deceased. Deceased was on duty

on 2.11.2002 as employee of Home Guard Department.

Deceased used to wear uniform.                      If on the above said

date, deceased was not in uniform and was wearing

Kurta, Pyjama and underwear then clothes recovered

from the person of the deceased should be shown to the

complainant to report as to whether clothes are of the

deceased     or   somebody            else.    Satbir   brother       of   the

deceased appeared as PW-9 but he has not stated a word

that on      such and such                 dhoti, shirt, Pyjama and

underwear were produced before him and the same were

identified   to        be     of    the    deceased     (Ved     Parkash).

Investigating Officer              did not state a word that he had

produced the clothes before                   the complainant and the

clothes were identified to be of the deceased. When there

is a recovery of some articles of the deceased then

recovered articles are to be mixed with the articles of the

similar nature.              Then from the mixed articles the

complainant is to identify as to which articles are of theCrl. Appeal No. 207-DB of 2008.               25deceased and on identification of the articles memo is to

be prepared but in the present case, Pyjama, shirt and

underwear were not mixed with the articles of similar

nature. Shirt, Pyjama and underwear are easily available

in the market. Recovered articles were not produced

before the complainant at any stage to identify them as

to whether the clothes are of the deceased or not. When

two dead bodies were recovered, then the prosecution

was   to   explain   whether   the   shirt,    Pyjama   and

underwear were recovered from the person of dead body

"A" or dead body "B". According to the doctor, there was

no injury.   Dead body was not identifiable. Death was

due to asphyxia as a consequence of drowning vso

identification of dead body from clothes is without any

evidentiary value. Daily dead bodies are recovered from

the canal minor and are disposed of as unidentified. To

solve blind murder it is very easy to show few articles

alleged to be of the deceased and recovered to implicate

any one. Similarly in the present case, story qua last

seen extra judicial confession is doubtful. Only shirt and

Pyjama were introduced to show that dead body was of

the deceased. When dead body alleged to be disposed of

was not of Ved Parkash then entire story is to beCrl. Appeal No. 207-DB of 2008.            26ignored.No other contention was put forward.In the light of above discussion, appeal is

accepted.    Appellant-accused is acquitted of the charge

levelled against him. Release warrant be issued.( JORA SINGH )
                                      JUDGE




01.05.2009.                     ( JASBIR SINGH )
Anoop                                 JUDGE