Nanhar & Ors vs State Of Haryana

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2496 OF 2009

NANHAR & ORS. .. APPELLANT(S)

vs.

STATE OF HARYANA .. RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 2497 OF 2009

O R D E R

1. Appellant five in number, in both the

appeals, feeling aggrieved by the judgment and

order of conviction dated 7/5/2008 passed in

Criminal Appeal No.919-DB/2006 by Division Bench

of High Court of Punjab and Haryana at Chandigarh,

arising out of the judgment and order of conviction

dated 24/11/2006 and order of sentence dated 2

25/11/2006 pronounced by Additional Sessions Judge,

Bhiwani, convicting them for commission of offences

under Sections 302/149 of the IPC and awarding

sentence to undergo RI for life, together with

fine of Rs.2,000/-, are before us challenging the

same on variety of grounds.

2. It may be mentioned herein that initially

charge-sheet was filed only against four accused

namely Nanhar, Virender @ Binder, Rampat and Rajbir

@ Meda under Sections 306/34 IPC. The name of the

fifth accused Umed Singh was added subsequently by

the Trial Court on an application being filed by

the prosecution under Section 319 of the Code of

Criminal Procedure and allowed on 3.6.2004. The

order of committal makes it clear that the first

four appellants were charged and prosecuted for

commission of offence under Sections 306/34 IPC.

Accordingly it was committed to Court of Sessions

for being tried for the aforesaid offences.

However, on 5.10.2004 charge was framed by the

learned Trial Judge under Sections 302/34 IPC.

Even though Umed Singh was added subsequently as

one of the accused but the charge was not altered 3

to one under Section 149 of the I.P.C.

3. Thumbnail sketch of the facts of the case is

as under:

Kartar Singh elder brother of Vijay deceased

had filed an application on 27/2/2004 before the

Superintendent of Police Bhiwani, alleging therein

that he is resident of village Malkosh Tehsil

Charkhi Dadri, District Bhivani and has been

serving Armed forces for last 20 years. He has a

residential house of his own in Rewari Town wherein

his family and aged mother are residing. His

younger brother Vijay, the deceased, was residing

in Malkosh and was looking after the agricultural

land owned by them. One Bhajani wife of Roop Ram,

of the same village was on visiting terms to the

house of Vijay as he was having small flour mill in

his house. She used to come for grinding of wheat.

In the course of time she developed family

relations with Vijay. There was a rumour in the

village that she had forced her own daughter-in-law

Kamlesh, wife of Rampat, one of the accused herein,

to have illicit relations with deceased Vijay. In

lieu whereof it was said that she had received a 4

sum of Rs. 1,000/- from Vijay. It was also the

case of the prosecution that Vijay and Kamlesh wife

of Rampat - appellant No.3 were seen in the field

by many villagers and they had a doubt about their

relationship. In fact, their relationship had

become talk of the village. Rampat, the accused,

came to know about the said relationship.

Therefore, he along with other co-accused Nanhar

Virender and Rajbir decided to finish Vijay. On

coming to know about the motive of the accused,

Vijay had left village Malkosh for some time.

4. It was further mentioned that aforesaid four

accused had told PW.11 Dalip, uncle of deceased

Vijay, about their intention. They wanted to take

revenge with Vijay on account of his relationship

with Kamlesh, wife of Rampat. They further informed

that this illicit relationship will not be

tolerated by them and therefore they are planning

to kill Vijay.

5. On 24/2/2004 PW.7 Sudesh, cousin of deceased

Vijay informed PW.9 Kartar Singh, on telephone that

Vijay has been murdered and his dead body was lying 5

in his field. It was further informed that some

poisonous substance was administered to Vijay by

accused Nanhar, Virender and Rajvir and Rampat. He

was asked to reach Malkosh from Rewari immediately.

On the same night, Kartar Singh reached village

Malkosh and found his brother dead. On enquiries

being made by him it was found from the villagers

that he has been done away with by administering

poisonous substance to him by aforesaid persons.

This fact stood fortified from a small note said to

be Vijay's dying declaration, written on the inside

paper of the match box, recovered from the pocket

of his pants. In the same, name of Meda Panch was

also mentioned that they had mixed sulphas in the

drink which was administered to him and it is

likely to take away his life.

6. The said two pages written complaint dated

27.2.2004 was submitted by Kartar Singh to

Superintendent of Police, Bhiwani. A note was

endorsed by the Superintendent of Police to Deputy

Superintendent of Police to look into the matter

and do the needful. DSP sent it to SHO of Police

Station Bhond Kalan, who was directed to 6

investigate the matter, in accordance with law. The

said written complaint was treated as an F.I.R. and

formal FIR came to be registered on 6/3/2004, that

is to say almost after 11 days from the date of

occurrence of the incident.

7. It is pertinent to mention here that on

24.2.2004, PW.11 Dalip while proceeding to lodge

the report had met ASI Raj Kumar (reported to be

dead) at the bus stop of Malkosh and had orally

informed him about the incident. His statement to

the police was entered into Daily Diary (Rojnamcha)

by Sub-Inspector Raj Kumar at the Police Station.

8. On such report being received by him, ASI

Raj Kumar reached the spot and prepared the inquest

report Ext.PN. In column No.12, dealing with in

what manner or by what weapon of instrument such

marks or injuries appeared to have been inflicted,

he recorded: "appears to have taken poisonous

substance".

9. In the same inquest report, ASI Raj Kumar

recorded detailed version of Dalip as was given to 7

him. According to Dalip, his nephew Vijay either

took poisonous substance himself on account of the

fact that villagers had come to know about his

illicit relationship with Kamlesh, wife of Rampat

or someone had forcibly administered it to him. He

further got it recorded that he had left his other

nephew PW.7 Sudesh at the place of occurrence for

the safety of dead body and had come to the Police

Station. But since ASI Raj Kumar met him at the bus

stop of Malkosh, he is getting the said statement

recorded.

10. ASI Raj Kumar recorded further in the said

inquest report that after getting this information

he went to the place of occurrence and found dead

body of Vijay. The same was lying in a straight

posture, mouth and eyes were found to be little

open. He was wearing terricot pants along with

ready made shirt but no external injuries were

found on the body of the deceased. Height of the

deceased was about 5' 9". Mouth was full of froth,

a steel glass containing poisonous substance, and

two bottles containing water and little liquor were

found. However, Raj Kumar was not able to come to 8

definite conclusion with regard to cause of death.

Therefore, he thought it fit to wait till post-

mortem report was received by him.

11. It is pertinent to mention here that neither

in the statement of Dalip nor in the Inquest

Report, there was any mention with regard to

recovery of hand written dying declaration said to

have been ascribed by deceased, from his pants.

12. Recovery memo was prepared by Raj Kumar, ASI

in presence of two witnesses namely Dalip (PW.11)

and Sudesh (PW.7). In the same it is said following

articles were seized from the spot:- one hand

written note authored by deceased Vijay, on the

cover of the match box, two separate bottles, one

containing water and another containing little

liquor, one steel glass with name of Rampat

ingraved. Earth containing white powder said to be

poisonous substance was also collected. They all

were sealed in different parcels and taken into

police custody.

9

13. Translated copy of Ext.PG, dying declaration

has been filed. The exact Hindi version written by

him in the slip reads as thus:

""Daru ke sath Sulphas pila rahe hai. Marenge."

(underlining by us)

The said Inquest Report was prepared at the spot.

In the site plan prepared there, neither recovery

of pocket telephone directory nor recovery of pen

was made. The statements of witnesses were

recorded.

14. As mentioned hereinabove, initially Raj

Kumar, ASI (now dead) did not find commission of

any cognizable offence, thus he dropped the

proceedings. Only after registration of the FIR on

6/3/2004, the criminal machinery was set into

motion.

15. Post-mortem on the dead body of the deceased

Vijay was performed by PW.4 Dr. Kuldeep Singh.

Post-Mortem Report is marked as Ext.PD. Doctor has

opined that deceased was aged about 32 years, well

built, having a height of about 5' 6", appears to

be more appropriate than what was mentioned in the 10

Inquest. He has further categorically recorded that

on the dead body no bruises or wounds were found.

Bladder and stomach both were found to be empty.

The time of death was shown to be 36 hours prior to

performing of post mortem. The cause of death was

shown to be excessive drinking of alcohol with

poisonous substance. On the strength of FSL report

(Ext.P.1), poisonous substance was found to be

aluminium phosphide. According to the doctor,

consumption of excessive alcohol coupled with

poisonous substance was sufficient to cause death

in ordinary course of nature.

16. From the post-mortem report Exh. PE as also

from the deposition of Dr. Kuldeep Singh-PW.4,

either deceased had met with homicidal death or

committed suicide.

17. Now the question that crops up for

consideration before us is whether it was the act

of the aforesaid five appellants, on account of

which he met with the homicidal death or it was

Vijay himself, with an intention to save his status

and glory in the society, had consumed poisonous 11

substance, thereby committed suicide.

18. Prosecution in all had examined 12 witnesses

on its behalf, to bring home the charges levelled

against the appellants. The accused had generally

denied the charges levelled against them and

submitted that Vijay had committed suicide, on

account of his misdeeds. They pleaded innocence.

They deposed that they have falsely been roped in

by the prosecution on the strength of manufactured

and engineered documents. The appellants did not

lead any evidence on their behalf.

19. On appreciation of evidence available on

record, learned Trial Judge found them guilty for

commission of offences under Sections 302/149 of

the IPC and awarded them sentences as mentioned

hereinabove. The appeal filed by them in the High

Court of Punjab and Haryana was dismissed and the

findings recorded by the Trial Court were affirmed

and the judgment and order of conviction of the

Trial Court was maintained. Hence these appeals. 12

20. We have accordingly heard learned senior

counsel Mr. S.K. Dubey with Ms. Mrinamayee Sahu and

Sh. Ajay Beer Singh for the appellants and

Mr. Kamal Mohan Gupta, learned counsel for the

respondent and perused the record. Evidence

adduced have also been critically and

microscopically gone through by us.

21. Sheet anchor of the prosecution story has

been the alleged dying declaration Exh. PG said to

have been written by deceased Vijay, on the inside

paper of a match box. English translation thereof

reads thus:

Rajbir Singh S/o Bhuru Rampat S/o Ruppa Binder Nanhar are drinking liquor by mixing the Sulphas and would kill.

It was written in vernacular language and in

Hindi, as mentioned earlier, reads as under: "Daru

ke sath Sulphas pila rahe hai. Marenge."

22. The aforesaid dying declaration has been

found to be sufficient by the two courts below and

appellants have been found guilty for commission of 13

offences under Sections 302/149 of the I.P.C. and

have been awarded sentence as mentioned

hereinabove.

23. Whether the same would fall in the category

of dying declaration and if so, if it was sufficient

to uphold the conviction and sentence awarded to

them on the strength thereof, is required to be

examined by us.

24. After critically going through the documents,

not only Exh. PG but also the oral and other

documentary evidence available on record, we find

the following lacunae, shortcoming, lapses and

deficiencies in the prosecution story:

(i) the said dying declaration has not been

signed by deceased Vijay.

(ii) If the appellants were really present

when the said dying declaration was said to have

been written, then obviously they would not have

allowed him to write the said dying declaration.

(iii) No recovery of pen was made from the

site or from the person of the the deceased.

(iv) There is nothing either in the site plan 14

or in the recovery memo to suggest that the deceased

was able to get any platform on which he could have

written the said dying declaration.

(v) The inner pocket of the match box

together with match sticks was not at all recovered.

(vi) It is not established by the prosecution

that the deceased was a smoker of bidi or cigarette.

No butts or bidis were recovered from the place of

occurrence.

(vii) As per the post-mortem report performed

on 25.2.2004, the death had occurred within 36 hours

from the time of performing of the post-mortem,

meaning thereby that the incident must have taken

place some time in the night.

(viii) There is nothing on record to show

availability of electricity or any source of light

at the spot.

(ix) In the Inquest Report prepared by ASI

Raj Kumar (now dead), there is no mention with

regard to the recovery of the dying declaration Exh.

PG or recovery of pocket index telephone directory.

(x) Similarly, in the site plan prepared on

the spot, there is no mention with regard to the

recovery of dying declaration, pen or pocket diary 15

from the place of occurrence or from the body of the

deceased.

(xi) No finger prints either of the deceased

or of the accused were taken, even though the same

were available.

(xii) Report of the Chemical Examiner dated

6.10.2004 shows that the packets were received by

him only on 10.3.2004 but no remnants of poisonous

substance were found either in the two bottles or in

the steel glass but were found only in the earth so

collected from the place of occurrence. The

poisonous substance has been described as Aluminium

Phosphide.

(xiii) Except for the evidence of PW-7

Sudesh, PW-8 Ramesh, PW-9 Kartar Singh, PW-11 Dalip,

who all happened to be closely related to the

deceased, evidence of an independent witness was not

recorded, even though there is evidence available to

show that many villagers were available.

(xiv) The evidence of PW-7 Sudesh and PW-11

Dalip is highly contradictory inasmuch as Sudesh has

not deposed anything with regard to recovery of

pocket index telephone diary from the person of the

deceased; whereas Dalip has categorically deposed 16

with regard to recovery of pocket index telephone

diary from his possession.

It is pertinent to mention here that PW-7

Sudesh and PW-11 Dalip are the witnesses to the

recovery memo said to have been prepared by ASI Raj

Kumar who is said to have died during the pendency

of the sessions trial, also does not record its

recovery.

(xv) It is extremely difficult to comprehend

if the deceased was in a position to write the dying

declaration, more so, after having consumed

excessive amount of Alcohol mixed with poisonous

substance. Fact of excessive amount of Alcohol mixed

with poison stands proved from the evidence of PW-4

Dr. Kuldeep Singh, who had performed post-mortem

(Exh. PD) on the person of the deceased.

(xvi) The post-moretm report further reveals

that the deceased was aged about 32 years having a

height of 5 feet 6 inches with a robust body. It is

inconceivable to believe that if the appellants

would have tried to administer him Alcohol mixed

with poisonous substance, he would not have resisted

to the same or at least would not have made any hue

and cry. It also stands proved from the evidence of 17

PW-4 Dr. Kuldeep Singh and the post-mortem report

that no bruises and external injuries were found on

the person of the deceased.

(xvii) No explanation has been offered by the

prosecution as to why the blank pages of the pocket

index telephone diary were not used to scribe it, if

the same had been recovered from his possession.

(xviii) The doctrine of motive could not be

established by the prosecution at all. Thus another

ground of holding them guilty on account of motive,

completely shatters the prosecution story and falls

flat.

(xix) It could not be established that dying

declaration and pocket index telephone diary

belonged to the deceased only. This aspect of the

matter has not been established by the prosecution.

(xx) Even if it stood established from the

opinion of the Handwriting Expert that dying

declaration and pocket index telephone diary were in

the same hand, still it could not be established

that it belonged to the deceased only.

(xxi) Possibility of implanting of these

documents cannot be ruled out.

(xxii) The said dying declaration does not 18

inspire confidence, much less to hold the appellants

guilty for commission of the said offence.

25. In fact, the salient features noted above

with regard to the deficiencies are sufficient, in

our considered opinion, to come to the conclusion

that the Courts below committed grave error in

holding the appellants guilty for commission of

offence under Sections 302/149 of the I.P.C.

But with intention to fortify our views, we

would like to reiterate what this Court has already

held in its earlier leading judgments.

26. Almost 25 years back, this Court in

celebrated judgment in Sharad Birdhichand Sarda vs.

State of Maharashtra, reported in 1984 (4) SCC 116,

held in paragraph 151 and 161 thereof that it is

well settled law that the prosecution must stand or

fall on its own legs and it cannot derive any

strength form the weaknesses of the defence. For

ready reference, the said paragraphs are reproduced

hereunder:

"151. It is well settled that the prosecution must stand or fall on its own 19

legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

161. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in 20

Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General."

27. Similarly, when the case is based on

circumstantial evidence, it has now been well

settled by several authorities of this Court that

the chain of circumstances should be complete in all

respect and the pointer of guilt should continuously

be on the accused only. Any deviation of the pointer

of guilt on the accused would enure him the benefit

of doubt.

28. No doubt it is true that ASI Raj Kumar, who

had prepared the Inquest Report had died during the

pendency of the trial, but no reasons have been

assigned as to why other police personnel present

along with ASI Raj Kumar, were not examined. They

could have at least explained the true picture and

proved recovery of dying declaration and pocket

telephone index diary from possession of deceased

Vijay.

21

29. Admittedly, from the evidence of PW-7 Sudesh,

it has come on record that the deceased Vijay was

having bank account and he was also a member of some

society, where his standard signatures were

available. But those standard signatures were not

made the basis for comparison of his hand-writing

alleged to have been found from his possession. In

the case of Sharad Birdhichand Sarda (supra), it has

been dealt with elaborately as to how the chain of

circumstantial evidence has to be complete in all

respect. The relevant paragraphs 153 & 154 are

reproduced herein below:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held 22

by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:

'Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.' (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency.

(4) They should exclude every possible hypothesis except the one to be proved, and 164 (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 23

30. The aforesaid cardinal principles with regard

to the completion of chain of circumstantial

evidence for holding the appellants guilty could not

be established at all by the prosecution in the

present case. With such broken chain of

circumstantial evidence, at many places, it would

neither be safe nor prudent to hold the appellants

guilty.

31. Apart from the above, it is extremely

difficult for us to come to the conclusion if Exh.

PG can fall in the category of dying declaration at

all or can be said to be legally admissible. Even

though we have categorically, minutely and with

microscopic eyes gone through the said document

number of times, but it does not inspire confidence,

more so, the manner in which it has been written.

We have already mentioned hereinabove that after

having consumed excessive liquor, it would not have

been possible for any one, much less for Vijay, to

have written the said dying declaration with so much

of precision or with steady hand. In our considered

opinion, dying declaration should be such,which

should immensely strike to be genuine and stating 24

true story of its maker. It should be free from all

doubts and on going through it, an impression has to

be registered immediately in mind that it is

genuine, true and not tainted with doubts. It should

not be the result of tutoring. But dying declaration

in the present case does not fulfill these

conditions.

32. In HWV Cox Medical Jurisprudence and

Toxicology, Seventh Edition, at page 936, under

title "Alcohols", deals with handwriting after

consumption of liquor. While coming to the general

behaviour after excessive drinking, apart from other

things, it has specifically been noted: "Character

of hand-writing: There is often difficulty with

letters, N, M and W."

33. In the same book, it is further described

that blood reaches all the organs, mainly the brain

and interferes with normal brain functions like

judgment and coordination of muscular movements. The

blood alcohol level influences the behaviour of the

person. The amount of alcohol present in the stomach

and intestine has no effect but only indicates the 25

ingestion.

34. Obviously, it would go to show and we also

come to the conclusion that after going through the

handwriting, as has been found by us in the alleged

dying declaration Ext. PG, it would have been

extremely difficult for him to write it as he could

not have been in a mentally fit condition to have

written the same.

35. Unfortunately, this aspect of the matter has

neither been considered by the learned Trial Judge

nor has been adverted to by the Division Bench of

the High court and yet the appellants have been

found guilty for commission of the aforesaid offence.

36. In our considered opinion, the said judgment

and order of conviction passed by the Trial Court

and upheld by the High Court, cannot be sustained in

law. They are accordingly set aside and quashed. As

a necessary consequence thereof, the appellants

would be set at liberty forthwith, if not required

in connection with any other criminal case. 26

Both the appeals are allowed accordingly.

....................J (DEEPAK VERMA)

....................J (K.S. RADHAKRISHNAN)

New Delhi;

June 11, 2010.