Paragraph numbers below are the court’s original numbering, recovered from the source text.
7. The Trial Court convicted the accused respondents on the basis of the prosecution story relying upon the following circumstantial evidences:- i. Testimony of eyewitnesses Narain Dass (PW-5), Gurdeep Singh (PW-6) and Kashmir Chand (PW-7), is natural and there is no enmity between them and the accused persons. ii. The medical evidence corroborates the statements of Narain Dass (PW-5) and Kashmir Chand (PW-7). iii. Motive has been proved by the testimony of Kashmir Chand (PW-7).
8. The High Court pointed out serious lacunae in the above said evidences which were considered by the trial court in convicting the accused and hence the conviction order was set aside as the necessary benefit of doubt was given to the accused.
9. We have perused the oral and documentary evidences · on record. We shall now examine each and every contention in light of the arguments adduced before us in the Court. Harkesh Kumar (PW-2) and the complainant Gurdip Singh G (PW-6) were eyewitnesses as per the prosecution story. But they faned to support the prosecution case as they turned hostile during the trial. Gurdip Singh had made a statement to the police regarding the FIR on the basis of which the case was registered. But when he appeared before the Court as PW-6, H he testified that he heard some commotion at around 2:00 STATE OF PUNJAB v. BITTU &ANR. ETC. ETC. [PINAKI CHANDRA GHOSE, J.] a.m. on the date of incident and when he came down to the A main road he found a crowd of about 14-15 persons. He also stated that he saw a person lying unconscious and did not know who that person was. He saw 4-5 persons putting the body of that person in the car and taking him towards Bhawanigarh. He denied of having been acquainted to the B accused and also stated that he could not say whether the accused appearing in the court were the same persons he saw that night. In cross-examination, he did not own up any part of the previous statement which led to the FIR except that part where he had named Bittu, Neetu, Jagdeep and Tony as C the accused persons to the Police. Harkesh Kumar (PW-2) failed to support the prosecution case and was declared hostile. He was admittedly, the real maternal uncle of the deceased and was alleged to have been present as an D eyewitness during the incident, as per the FIR. It is unnatural for him not to have come to the rescue of his nephew even when he had identified him as the victim. Thus, the two main eyewitnesses turned hostile and did not support the case of the prosecution.
10. The next aspect for consideration before us is the statement of Narain Dass (PW-5). He stated in his testimony that he, along with one Sita Ram, had come to Shiv Mandir, Bhawanigarh, for paying obeisance at around 6:00 a.m. and had witnessed the silver coloured Maruti car bearing No. PB- 34-1110 outside that Mandir. The said car was being driven by Neetu and all the five accused persons were present in the car and they stopped the car and threw the dead body of the deceased near a truck which was parked there. They also threw G the clothes of the deceased. He admitted that the deceased was his real nephew (bhanja). He also stated that after chasing the accused when he failed to get hold of them, he went back home. He did not meet the police from 6:00 a.m. to 9:00 a.m. that day. He also stated that at 6:00 a.m. on that morning, there H [2015] 1 O S.C.R. may be some darkness. His statements thus lead to an inference that his presence was doubtful. PW-5 was the real maternal uncle of the deceased and he did not even bother to check whether the deceased was dead or alive. Also, the fact that he did not meet the police for 3 hours is a strange fact B considering that his nephew had died. The High Court has discussed in great volume the discrepancies in the evidence of PW-5 and the time gap between his seeing the accused and his meeting the police, as per his allegation. It makes the statement of PW-5 highly doubtful. c
11. The next incriminating fact is the motive behind the crime as has been established by the testimony of Kashmir Chand (PW-7). He stated that on 8.10.2002 at about 8:00 p.m. he had gone to see Ram Leela in Grain Market, Bhawanigarh D and had seen the five accused persons conspiring with one another about finishing Ashok Kumar, because he was not agreeing to remove his fruit Rehri from the front of the meat shop of Bittu and Nitu. He also stated that he saw the accused beating and sitting upon the deceased at about 2:30 a.m. at E night. Even if the motive is clearly established, the fact that PW-7 was admittedly the friend of the deceased, he ought to have warned the deceased about such plans of the accused. PW-7 stated that he had gone to see Ram Leela and came back after 15-20 minutes to his house, had his meals and later left the house at around 2:00 a.m. Neither he was named in the FIR nor did he care to warn the deceased or his family members of the conspiracy that he had overheard. This makes his conduct highly unnatural and his presence doubtful at the place of incident. Thus, his statement merely establishes the G motive of the accused.
12. The prosecution failed to prove its case on one more aspect. The prosecution alleged that the medical evidence corroborates their story. But the testimony of Dr. Sanjeev Jindal H (PW-1), who did the medical examination of the deceased, STATE OF PUNJAB v. BITIU &ANR. ETC. ETC. [PINAKI CHANDRA GHOSE, J.] do~s not support this fact. He stated that the internal injuries of A the deceased were such that they may have been caused by a heavy stone kept on the chest, but he did not clearly establish the same, in his opinion. He merely said that the possibility cannot be ruled out. Also, if the incident occurred in the manner stated in the FIR, sufficient quantity of soil should have been B found in the mouth of the deceased but PW-1 has categorically stated in his testimony that no soil was found in the mouth of the deceased. He had merely found some dust sticking to the face of the deceased which could be caused by merely throwing the dead body on the ground or even on a metalled C road which is dust free.
13. All the above circumstances lead to the inference that the prosecution has failed to bring home its case. It appears that the testimonies of Narain Dass (PW-5) and Kashmir D Chand (PW-7) are highly doubtful and do not inspire confidence. Though the motive has been well established by the testimony of PW-7, but it alone cannot be sufficient to convict the accused as it is not substantive evidence and is merely corroborative in nature. Even the medical evidence fails to support the prosecution version. Thus, the conviction of the accused cannot be sustained.
14. In the light of the above discussion, we find no grounds to interfere with the judgment passed by the High Court. The appeals are, accordingly, dismissed. Kalpana K. Tripathy Appeals dismissed.