Chandigarh: At 6 am on the morning of 16 June, 2018, a farmer in Gaibipur village of Hisar found the body of a small child in a fallow field next to his jowar crop.
The body had no head and no clothes. The skull lay near a trench. A blood-stained T-shirt, white with a purple ‘No Goal’ print was found nearby.
Eight years on, the Punjab and Haryana High Court has ruled that the State could not prove, beyond reasonable doubt, who that child was or who killed him.
On 7 October, a bench of Justices Anoop Chitkara and Harmeet Singh Deol set aside the conviction and death sentence of Hem Raj, accused in 2018 for the murder of two-and-a-half-year-old Siva. The bench dismissed the State’s murder reference as infructuous and ordered Hem Raj’s immediate release on a personal bond, with no surety.
What trial court found
A Hisar sessions court had convicted Hem Raj under Sections 302 and 201 of the erstwhile Indian Penal Code on 7 March, 2022. A week later it sentenced him to be hanged.
The case rested largely on Siva’s mother Suman. Three days after the body was found, she told a magistrate that Hem Raj, with whom she had struck up a friendship months earlier, had said her son was “the son of a Bihari” and that he would not keep him. According to that statement, on the night of 13 June he slammed the child onto a road, hit him with a kassi (pick) and threw the body into the field. She said he threatened to kill her and her family if any of them spoke about the murder.
Hem Raj was arrested on 20 June, 2018.
In the witness box, Suman said something else. She admitted the statement was hers but said she had made it under pressure from relatives. She absolved Hem Raj.
Why the High Court did not accept it
The bench held that a statement recorded before a magistrate under Section 164 of the erstwhile Code of Criminal Procedure is not substantive evidence. It cannot, by itself, carry a conviction once the witness resiles.
Other pillars of the prosecution case gave way one by one.
The body, for one. The corpse was putrefied. The lower torso was intact, but the scalp, upper body and arms were missing. DNA from the bone could not be profiled because it had degraded, and the forensic lab gave no opinion. The court said the body was “most probably” Siva’s, but that this was not proved beyond reasonable doubt.
Then, the clothes. The T-shirt and underpants were the only other route to identification. Suman was never shown them in court to say whether her son wore them. The trial judge did not use his own power to ask her. Siva’s aunts, who were witnesses, turned hostile too.
And the custody identification. Police said Hem Raj himself identified the clothes. He was in police custody then, and Section 26 of the Evidence Act bars such a confession from being proved against him.
Finally, the murder weapon, the pick. The police said it was recovered on Hem Raj’s disclosure. The high court held the discovery and its link to the crime were not legally established under Section 27. Blood was found on it, but its origin could not be determined. It was never shown to the doctor who conducted the post-mortem.
The sarpanch. Arjun Dev Mehta, who had informed police, told the court he had heard the child was being drowned. Forensic and medical evidence said otherwise. The doctor put the cause of death at head injury from skull fractures. The court found his two sets of testimony contradicted each other.
The bench also pointed to what the investigation never explained: why the lower body was untouched by animals while the upper body was missing.
It did not play down the crime. It called it a gruesome murder of a child under three. But it said the prosecution had failed to produce legally admissible evidence linking the accused to it, and gave him the benefit of doubt.
(Edited by Nardeep Singh Dahiya)