[CASE NUMBER] in [CASE NUMBER] -1- [ENTITY] Vs. State of Haryana Present: Mr. [ENTITY], Senior Advocate with Mr. [ENTITY], Advocate for the applicant/appellant. Mr. [ENTITY], DAG, Haryana for the State.
Learned counsel for the State has filed custody certificate verified by Shri [ENTITY], Superintendent, District Prison, Rohtak mentioning the period of imprisonment undergone by the applicant/appellant-[ENTITY]. The same is taken on record.
Heard learned counsel for the parties.
The criminal miscellaneous application has been filed seeking suspension of sentence of imprisonment of the applicant/ appellant-[ENTITY] during pendency of the appeal.
The daughter of the applicant/appellant-[ENTITY] namely [ENTITY], aged 13 years, was a student of 9th standard in Baba Banda Bahadur School, Jind Road, Rohtak. She left for school in school uniform on 02.12.2010 at about 8.30 a.m. but she did not return home. The applicant/appellant-[ENTITY] filed an application to the Station House Officer, Police Station, Rohtak. It was alleged that [ENTITY] did not return home. He further stated that he had two mobile phone numbers, which were used by the family members. [ENTITY] son of Shri [ENTITY] used to make telephone calls from his mobile 1 of 8 number. [ENTITY] son of Shri [ENTITY] used to call from his mobile number and [ENTITY] son of Shri [ENTITY] used to make telephone calls from his mobile number to his daughter [ENTITY]; besides, sending obscene SMSs. [ENTITY] had informed her father i.e. applicant/ appellant on 29.11.2010 about receiving such messages and also telephone calls. When the applicant/appellant objected to the family members of the aforesaid boys, their parents assured that the incident would not be repeated again. [ENTITY] (applicant/appellant), therefore, had a suspicion against [ENTITY], [ENTITY] and [ENTITY] in enticing away his daughter.
A dead body was found floating in the pond on 22.12.2010. It was identified to be that of [ENTITY] daughter of the applicant/appellant. It had been tied with bricks near its chest with red colour shirt. The bricks were put in a cement bag; besides, another bag containing bricks had been put all over the body. Three bricks were tied with each foot.
[ENTITY] (accused No.2) a servant of the applicant/ appellant was arrested by the police on 24.12.2010. He made a disclosure statement (Ex.P8) stating that he was working as a servant/helper with the applicant/appellant. He did agriculture and household work. The applicant/appellant-[ENTITY] along with his wife and daughter [ENTITY] used to reside at Rohtak and he was given a servant room in that residence. [ENTITY] was in the habit of having telephone conversations with boys. The 2 of 8 applicant/appellant-[ENTITY] informed him ([ENTITY]) on 01.12.2010 that his daughter was not leading a good moral life and asked him to kill her. [ENTITY] (applicant/ appellant) also allured [ENTITY] with Rs.10,000/- and full salary for five years. He also promised to get him married and provide him accommodation in the same house. It is stated that [ENTITY] asked [ENTITY] to come to the fields and [ENTITY] also asked [ENTITY] to go to the fields for study. [ENTITY] took five 'chapatis' and went to the fields on 02.12.2010, at about 7.00 a.m. [ENTITY] came near Dudhadhari Temple at about 9.00/9.30 a.m. and he brought her to the fields. [ENTITY] was hungry, so he ([ENTITY]) plucked a guava and gave the same to [ENTITY]. After that when [ENTITY] came to the mustard crop field and asked for a meal on which [ENTITY] gave two 'chapattis' to her. After that, [ENTITY] asked [ENTITY] to have sex with her and she lay down in the mustard crop fields. Then he ([ENTITY]) as per the direction of [ENTITY] strangulated [ENTITY] with the help of a cloth bag in which he kept his 'chapatis' and put the dead body near the heap of millet strand. In this process, her pant and underwear got down and he removed the same. He concealed the underwear and the pant of [ENTITY] under the bushes. He also concealed the school bag of [ENTITY] under the nearby bushes. When he was strangulating [ENTITY], [ENTITY] (applicant/appellant) was also present in the room. At the instance of [ENTITY] (applicant/appellant), he put the dead 3 of 8 body in the dirty water pond. However, the dead body started floating on which he packed bricks in a cement bag after removing the bricks from the room belonging to [ENTITY] (applicant/appellant). At the instance of [ENTITY] (applicant/ appellant), he tied the bag near the abdomen of [ENTITY] with the help of a shirt. After the dead body was put in the pond, the legs of [ENTITY] were visible, therefore, at the instance of [ENTITY] (applicant/appellant), he put a bag containing bricks on the dead body of [ENTITY]. On the next day, at the instance of [ENTITY] (applicant/appellant), he visited the pond. The legs of [ENTITY] were visible, so he took a string and put three bricks on each side of the string and put the bricks around the legs of dead body. He also put some dry grass over the dead body to conceal it. On receipt of information regarding recovery of dead body of [ENTITY], he was going to collect his clothes from the fields, but he was apprehended at Jind by-pass.
In pursuance of the said disclosure statement (Ex.P8), [ENTITY] got recovered a school bag containing four books, a copy, pen, pencil and a tiffin, which were converted into a sealed parcel and were taken into possession. [ENTITY] also got recovered underwear, pant, belt and shirt of [ENTITY], which were taken in possession vide seizure memo Ex.P10. He also got recovered school shoes of the deceased [ENTITY] vide seizure memo Ex.P11; besides, he got recovered a cloth bag with which he ([ENTITY]) strangulated [ENTITY] and the same was taken in 4 of 8 possession vide seizure memo Ex.P12. He got the site demarcated where the murder was committed, the dead body was put and the place where the blood stained millet crop leaves with which the dead body was concealed; besides, he also got the place demarcated in the pond where he had thrown the dead body of [ENTITY].
The applicant/appellant-[ENTITY] also made a disclosure statement Ex.P17 on 24.12.2010 and got demarcated the place of occurrence. The effect of the disclosure statement of [ENTITY] regarding the involvement of applicant/appellant-[ENTITY] would require consideration at the time of final hearing of the appeal.
In response, learned counsel for the State has submitted that the statement of [ENTITY] co-accused relates to discovery of fact of involvement of the applicant/appellant. It is submitted that learned trial Court has rightly invoke [SECTION] of the [ACT], with respect to the things said or done by conspirator in reference to common design.
Learned Senior Counsel appearing for the applicant/ appellant has submitted that the statement of co-accused in the manner in which it has been recorded before the police is clearly inadmissible in evidence. He places strong reliance on '[PRECEDENT] to contend that law does not envisage taking on record the entire confession by marking it an exhibit 5 of 8 and incorporating both the admissible and inadmissible parts thereof together. It is only that part of confession which is admissible leading to the recovery of dead body and/or recovery of articles of the deceased that can be taken into consideration. In the said case, the confession proceeded to state even the mode and manner in which deceased was allegedly killed. The Supreme Court held that this should not have been done as it would influence the mind of the court. Even otherwise, it is submitted that mere confession of the co-accused without further corroboration would not warrant a finding of guilt against the applicant/appellant. He also places reliance on '[PRECEDENT] to contend that except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.
In response, learned counsel for the State has submitted that the disclosure statement of the co-accused is a relevant fact which has rightly been taken into consideration as the co-accused not only inculpates himself but also the applicant/appellant. It is submitted that the learned trial Court has correctly appreciated the facts and circumstances of the case and convicted the applicant/appellant. In these circumstances, the application 6 of 8 seeking suspension of sentence of imprisonment merits dismissal.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties. The involvement of the applicant/appellant, who is the father of [ENTITY] and whether he would instigate the servant to commit the offence, would require consideration at the time of final hearing of the appeal.
According to learned Senior Counsel for the applicant/ appellant, there is no material to show except for the alleged disclosure statement of [ENTITY] that the applicant/appellant instigated his servant to strangulate his daughter; besides, the allegation of the applicant/appellant alluring [ENTITY] for carrying out this act and his promise to give him money or other benefits is inconsequential as no recovery in this regard has been effected.
The case involves arguable points which would require consideration at the time of final hearing of the appeal. The contentions of the learned counsel appearing for the parties as regards the disclosure statement of [ENTITY] so as to inculpate the applicant/appellant in the commission of crime and whether the conviction can be based without its corroboration as also whether there is corroborative evidence to support the disclosure statement would indeed require deeper consideration, which is not liable to be gone into at this stage.
According to the custody certificate that has been filed in 7 of 8 Court today, the applicant/appellant has undergone actual imprisonment of two years, five months and twenty four days as on 06.09.2016. Therefore, in the facts and circumstances, it would be just and expedient to suspend the sentence of imprisonment of the applicant/appellant-[ENTITY] during pendency of the appeal.
Accordingly, the criminal miscellaneous application is allowed and the sentence of imprisonment of the applicant/ appellant-[ENTITY] shall, during pendency of the appeal remain suspended subject to his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Rohtak.
([ENTITY]) Judge 08.09.2016 ([ENTITY]) Sheetal Judge Note: 1. Whether the order is speaking/reasoned: Yes 2. Whether it is reportable : No 8 of 8