Ram Niwas vs The State Of Haryana

learned Sessions Judge, Sonepat, thereby convicting the

appellant for the offences punishable under Section 302 and 201

of the Indian Penal Code, 1860 (“IPC” for short) and sentencing

him to suffer rigorous imprisonment for life and to a fine of

1 Rs.5,000/­, in default of payment of fine to further undergo

rigorous imprisonment for two years under Section 302 IPC and

to suffer imprisonment for three years and to a fine of Rs.2,000/­

in default of payment of fine to further undergo rigorous

imprisonment for one year. Both the sentences are directed to

run concurrently.

2. The prosecution case, in brief, is thus:

2.1 Deceased Dalip Singh, Bhim Singh (P.W.10), and the

complainant­Deep Chand (P.W.9) are brothers. Pale, son of

Bhim Singh (P.W.10), was married to Sunita, daughter of

Chander Singh and the sister of the accused/appellant­

Ram Niwas. After the death of Pale, his wife Sunita along

with her minor son went to her parental house in village

Rewli. Deceased Dalip Singh, Bhim Singh (P.W.10), and

complainant­Deep Chand (P.W.9) wanted Sunita to be

married to Rampal son of deceased Dalip Singh. As such,

on 7th March 2003, all three of them had gone to the house

of Chander Singh, father of the accused/appellant­Ram

2 Niwas with the proposal of remarriage of Sunita with

Rampal son of deceased Dalip Singh.

2.2 It is the prosecution case that all three of them reached

village Rewli and went to the house of Chander Singh,

father of the accused/appellant­Ram Niwas at around 5.00

p.m. on 7th March 2003. At around 7.30 p.m., deceased

Dalip Singh and accused/appellant­Ram Niwas started

taking liquor and at that time the proposal of marrying

Sunita with Rampal was mentioned. On such mention

being made, accused/appellant­Ram Niwas got angry and

started abusing deceased Dalip Singh. However,

complainant­Deep Chand (P.W.9) and Bhim Singh (P.W.10)

intervened and pacified the accused/appellant­Ram Niwas.

Thereafter, both of them after having their meals went to

the first floor to sleep.

2.3 On the morning of 8th March 2003, at around 6.30 a.m.,

when the complainant­Deep Chand (P.W.9) and Bhim

Singh (P.W.10) went to the drawing room of Chander Singh,

3 deceased Dalip Singh was not seen there. They asked

about the whereabouts of deceased Dalip Singh from the

accused/appellant­Ram Niwas, who told them that he had

gone for answering the call of nature. Both of them waited

for deceased Dalip Singh for about half an hour, but he did

not return. Therefore, they again asked the

accused/appellant­Ram Niwas about the whereabouts of

deceased Dalip Singh, but they did not receive any

satisfactory reply.

2.4 It is further the prosecution case that after the

complainant­Deep Chand (P.W.9) and Bhim Singh (P.W.10)

came to the courtyard, they felt the smell of the burnt

human body. The complainant­Deep Chand (P.W.9) again

enquired from the accused/appellant­Ram Niwas about

deceased Dalip Singh. Then the accused/appellant­Ram

Niwas became nervous and replied that when deceased

Dalip Singh had proposed to marry Sunita with his son

Rampal then he had pressed the throat of deceased Dalip

4 Singh and strangulated him to death. In order to destroy

the evidence, the dead­body of the deceased Dalip Singh

was burnt, but the same could not be burnt completely.

The dead body of deceased Dalip Singh was concealed in

Paraal (Paddy Fodder). Thereafter, the complainant­Deep

Chand (P.W.9) and Bhim Singh (P.W.10) after removing the

Paddy straw found the partially burnt dead body of

deceased Dalip Singh wrapped in a piece of Plastic palli.

Thereafter, the complainant­Deep Chand (P.W.9) and Bhim

Singh (P.W.10) expressed their resentment towards the

accused/appellant­Ram Niwas, and on hearing their

resentment, the accused/appellant­Ram Niwas fled away

from the spot. The complainant­Deep Chand (P.W.9) and

Bhim Singh (P.W.10) went to their village Bhawar and

returned back with other family members to village Rewli in

the evening.

2.5 The complainant­Deep Chand (P.W.9) lodged a report with

the Police station at 4.45 p.m. On the basis of the

5 statement of the complainant­Deep Chand (P.W.9), a First

Information Report (“FIR” for short) came to be registered at

5.00 p.m.

2.6 Upon completion of the investigation, a charge­sheet came

to be filed in the Court of learned Judicial Magistrate First

Class, Sonepat. Since the case was exclusively triable by

the Sessions Court, it came to be committed to the learned

Sessions Judge, Sonepat.

2.7 Charges came to be framed for the offences punishable

under Sections 302 and 201 of the IPC. The

accused/appellant­Ram Niwas pleaded not guilty and

claimed to be tried. At the conclusion of the trial, the

learned Sessions Judge, Sonepat passed orders of

conviction and sentence, as aforesaid. Being aggrieved, the

accused/appellant­Ram Niwas preferred an appeal before

the High Court of Punjab and Haryana at Chandigarh. The

same came to be dismissed. Hence the present appeal.

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3. We have heard Mr. Rishi Malhotra, learned Advocate­on­

Record appearing on behalf of the accused/appellant­Ram

Niwas and Mr. Birendra Kumar Choudhary, learned Additional

Advocate General appearing on behalf of the State of Haryana.

4. Mr. Rishi Malhotra, learned counsel, submitted that from

the perusal of the postmortem report, it is clear that it is not

proved beyond reasonable doubt that the dead­body on which

the postmortem was conducted was of deceased Dalip Singh. He

submitted that Dr. Sanjeev Malhotra (P.W.5) has admitted that

the face of the dead­body of which he had carried the

postmortem was not recognizable. He therefore submitted that

in the absence of the prosecution proving that the dead­body

was of deceased Dalip Singh, the conviction was not sustainable.

He further submitted that the evidence of the complainant­Deep

Chand (P.W.9) and Bhim Singh (P.W.10), which is relied upon by

the learned Sessions Judge, Sonepat as well as the High Court,

is totally unreliable. He submitted that the conduct of the said

witnesses is totally unnatural. He submitted that from their

7 evidence, it is seen that after they had seen the dead­body, they

went all the way to their village Bhawar and returned back in the

evening. He submitted that when the Police Station was at a

distance of about one and a half kilometers from the place of the

incident, their conduct in not going to the Police Station

immediately and informing about the incident creates a serious

doubt about the prosecution case. He therefore submits that the

accused/appellant­Ram Niwas is entitled to be acquitted of all

the charges charged with.

5. Mr. Birendra Kumar Choudhary, learned AAG, on the

contrary, submitted that both the courts below, upon correct

appreciation of evidence, have concurrently found the

accused/appellant­Ram Niwas to be guilty of the offences

charged with. He submitted that the accused/appellant­Ram

Niwas has made an extra­judicial confession before the

complainant­Deep Chand (P.W.9) and Bhim Singh (P.W.10). He

submitted that the said extra­judicial confession is corroborated

by the recovery of ‘ash’ concealed in a plastic cover on the

8 memorandum of the accused/appellant­Ram Niwas under

Section 27 of the Indian Evidence Act, 1872 (“Evidence Act” for

short). He therefore submitted that no case is made out for

interference with the findings of fact, recorded by the learned

Sessions Judge, Sonepat as well as by the High Court.

6. To examine the correctness of the findings of the High

Court, it will be apposite to scrutinize the evidence on record.

7. Dr. Sanjeev Malhotra (P.W.5) has conducted postmortem

examination of the dead­body of deceased. In his evidence, he

stated that the dead­body was lying naked. It was showing deep

burns all over the body. It was also emitting the smell of

kerosene. The hair and scalp were missing. Eye balls, eye­

lashes, and both ears were burnt out. Both lips and the nose

were also burnt. He has categorically stated in his examination­

in­chief that the face of the dead­body could not be recognized.

He has also stated in his examination­in­chief that both feet

were missing. Dr. Sanjeev Malhotra (P.W.5), in his cross­

examination, has given a clear admission to the following effect:

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“It is correct that the body was not recognizable. ………..”

8. The complainant­Deep Chand (P.W.9), in his evidence,

states that on 7th March 2003, he along with his two brothers,

namely, Bhim Singh (P.W.10) and deceased Dalip Singh had

gone to village Rewli. He states that all the three brothers had

gone to village Rewli to ask for Sunita’s hand in re­marriage for

Rampal, son of his brother deceased Dalip Singh. After

reaching the village Rewli at around 5.00 p.m., they met

Chander Singh and his son accused/appellant­Ram Niwas. He

further states that after some time, accused/appellant­Ram

Niwas brought a bottle of liquor and he along with his father

Chander Singh and his brother deceased Dalip Singh started

taking liquor. He further states that upon the deceased Dalip

Singh proposing the re­marriage of Sunita with his son Rampal,

there was a minor altercation between them. He states that he

and Bhim Singh (P.W.10) persuaded both sides to not fight. After

taking their meals, the accused/appellant­Ram Niwas told him

and Bhim Singh (P.W.10) to go to the first floor to sleep, since

10 the accused/appellant­Ram Niwas and deceased Dalip Singh

wanted to have some talk. Thereafter, they went to sleep on the

first floor.

9. Complainant­Deep Chand (P.W.9) further states that in the

morning when they had gone to the drawing room of the

accused/appellant­Ram Niwas at around 6.30 a.m. and asked

about their brother the deceased Dalip Singh, the

accused/appellant­Ram Niwas told them that deceased Dalip

Singh had gone to ease himself. After waiting for about half an

hour, when deceased Dalip Singh did not return, they again

enquired from the accused/appellant­Ram Niwas about the

deceased Dalip Singh. Thereafter, accused/appellant­Ram

Niwas told them that he had murdered deceased Dalip Singh.

On being enquired about the dead­body of deceased Dalip Singh,

accused/appellant­Ram Niwas told them that he had kept the

dead­body concealed in the paraal (paddy fodder). They also felt

the foul smell of burning. They went there and saw the dead­

body of deceased Dalip Singh, wrapped in a plastic palli and

11 lying in a heap of paraal and also in a burnt condition.

Thereafter, he and Bhim Singh (P.W.10) ran away from there

since they had an apprehension that accused/appellant­Ram

Niwas might kill them also. He states that they, thereafter,

straightway went to their village Bhawar and on the same day

after taking 4­5 persons from the village, he came to Murthal

Adda and at the turning of Engineering College, they met the

Police and informed about the incident.

10. In his cross­examination, complainant­Deep Chand (P.W.9)

admitted that parents of Sunita had come to his village Bhawar

at the time of Chhamahi and Barsi ceremonies of Pale. He has

further admitted that they did not talk with the parents of Sunita

regarding the re­marriage of Sunita with Rampal on those

occasions. He has further admitted that according to customs in

their society, the remarriage of a widow or Karewa is to be

solemnized on the occasion of Chhamahi and Barsi. It will be

relevant to refer to the following admissions in the evidence of

the complainant­Deep Chand (P.W.9):

12

“After seeing the dead body we not raise any alarm and none came at the spot in our presence. Sunita was also 'present in village Revli on that day. We did not tell even to Sunita or any body else in the village. We went to our village Bhawar through a jeep and bus. Police station Murthal is situated at a distance of one and ∙half ∙kilometer from village Revli. We did not inform the police of P.S. Murthal. We reached in our village at about 9:00 A.M. We came back in a jeep. Subhash, Ganga, Prem, Raju, Sher Singh, Pappu etc. had accompanied us to village Revli. We did not inform any police station which falls on the way back to village Revli. However, police station Baroda, Gohana, Mohana, sonepat and Murthal falls on the way.”

11. It could thus clearly be seen from the evidence of the

complainant­Deep Chand (P.W.9) that after seeing the dead­body

of deceased Dalip Singh, they did not raise any alarm. He has

clearly admitted in his deposition that there are residential

houses on one side of the house of accused/appellant­Ram

Niwas. He further admitted that they reached their village

Bhawar at around 9.00 a.m. They waited till 2.30/3.00 p.m. to

inform the Police. He has further admitted that between village

Rewli and his village Bhawar, Police Station Baroda, Gohana,

13 Mohana, Sonepat, and Murthal are on the way. They did not

give intimation to any of these Police Stations either on their way

to village Bhawar or while returning to Murthal.

12. The evidence of Bhim Singh (P.W.10) is to the similar effect.

13. Apart from the ocular testimony of the complainant­Deep

Chand (P.W.9) and Bhim Singh (P.W.10), the only incriminating

circumstance, on which the prosecution relies is the recovery of

‘ash’ and ‘plastic can’ on the memorandum of the

accused/appellant­Ram Niwas under Section 27 of the Evidence

Act.

14. It could clearly be seen that even according to the

complainant­Deep Chand (P.W.9) and Bhim Singh (P.W.10), after

they saw the dead­body of the deceased Dalip Singh in paraal

(paddy fodder), they did not inform anyone in the village. No

doubt that how a person responds to a situation is differ from a

person to person. However, the conduct of the said witnesses in

not informing anybody in the village Rewli and thereafter going to

their village Bhawar in the morning, returning back in the

14 afternoon and not informing five Police Stations, which were in

between village Bhawar and village Rewli cast a serious doubt

with regard to the truthfulness of their version. It is further

difficult to believe the testimony of these witnesses that in the

night, the deceased Dalip Singh was done to death, set on fire in

a paraal (paddy fodder) and they did not come to know about the

same till the accused/appellant­Ram Niwas told them about the

same next morning. In the evidence of these witnesses, it has

clearly come out that there are houses surrounding the house of

the accused/appellant­Ram Niwas. The prosecution version

appears improbable that such an incident took place in an area

surrounded by houses. The prosecution has also not examined

any independent witness residing nearby so as to lend credence

to the prosecution’s version.

15. The prosecution relies on the extra­judicial confession made

by the accused/appellant­Ram Niwas to these witnesses. This

Court in the case of S. Arul Raja vs. State of Tamil Nadu1,

1 (2010) 8 SCC 233

15 after considering the earlier judgments of this Court, has

observed thus:

“48. The concept of an extra­judicial confession is primarily a judicial creation, and must be used with restraint. Such a confession must be used only in limited circumstances, and should also be corroborated by way of abundant caution. This Court in Ram Singh v. Sonia [(2007) 3 SCC 1 : (2007) 2 SCC (Cri) 1] has held that an extra­judicial confession while in police custody cannot be allowed. Moreover, when there is a case hanging on an extra­judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution.

This principle has been affirmed by this Court in Ediga Anamma v. State of A.P. [(1974) 4 SCC 443 : 1974 SCC (Cri) 479] and State of Maharashtra v. Kondiba Tukaram Shirke [(1976) 3 SCC 775 : 1976 SCC (Cri) 514] . It is significant to observe that A­1 has subsequently sought to retract this statement upon his arrival in Tamil Nadu.”

16. We therefore find that it will not be safe to base conviction

solely on the basis of the alleged extra­judicial confession made

by the appellant to these witnesses.

16 17. The only other circumstance on which the prosecution

relies is the seizure of ‘ash’ kept in the plastic bag on the

memorandum of the accused/appellant­Ram Niwas under

Section 27 of the Evidence Act. Satish Kumar (P.W.11), the

Investigating Officer (I.O.), in his deposition has clearly admitted

that the disclosure statement made by the accused/appellant­

Ram Niwas was made in the lock­up of the police station. He has

further admitted that though independent witnesses were

available, inasmuch as the Police Station is in the heart of the

city, he had not called any independent witness as ‘Panch’ of the

said memorandum. As such, the reliance on the said seizure

also is of no help to the prosecution case. It is further to be

noted that Dr. Sanjeev Malhotra (P.W.5), in his evidence, has

admitted that it was difficult to recognize the face of the dead­

body. From the postmortem, it is also not established that the

death was homicidal.

18. The prosecution case rests on circumstantial evidence. The

law with regard to conviction on the basis of circumstantial

17 evidence has very well been crystalized in the judgment of this

Court in the case of Sharad Birdhichand Sarda vs. State of

Maharashtra2, wherein this Court held thus:

“152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up­ to­date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198: 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625: AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :

“It is well to remember that in in cases where the 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, and all the facts so established should be consistent only with the hypothesis of the

2 (1984) 4 SCC 116

18 guilt of the accused. Again, the circum­ stances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a 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.”

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 by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may

19 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 (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.”

19. This Court has held that there has to be a chain of evidence

so complete so as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and

20 must show that in all human probability the act must have been

done by the accused. It has been held that the circumstances

should be of a conclusive nature and tendency. This Court has

held that the circumstances should exclude every possible

hypothesis except the one to be proved. It has been held that

the accused ‘must be’ and not merely ‘may be’ guilty before a

Court can convict.

20. It is settled law that the suspicion, however strong it may

be, cannot take the place of proof beyond reasonable doubt. An

accused cannot be convicted on the ground of suspicion, no

matter how strong it is. An accused is presumed to be innocent

unless proved guilty beyond a reasonable doubt.

21. In the present case, we find that the prosecution has utterly

failed to establish the chain of events which can be said to

exclusively lead to the one and only conclusion, i.e., the guilt of

the accused. In that view of the matter, we find that the

judgment and order of the learned Sessions Judge and that of

the High Court are not sustainable.

21

22. The appeal is therefore allowed. The judgment and order of

conviction and sentence dated 11 th/12th January 2005 of the

learned Sessions Judge, Sonepat and the judgment and order of

the High Court of Punjab and Haryana at Chandigarh dated 16 th

March 2009, dismissing the appeal of the accused/appellant­

Ram Niwas are quashed and set aside. The accused/appellant­

Ram Niwas is acquitted of all the charges charged with. The bail

bonds shall stand discharged.

23. Pending applications, if any, shall stand disposed of.

…….........................J. [B.R. GAVAI]

………………....…….........................J. [PAMIDIGHANTAM SRI NARASIMHA]

NEW DELHI;

AUGUST 11, 2022

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