[CASE NUMBER] - 1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) Criminal Appeal [CASE NUMBER] Date of Decision: 17.11.2011. [ENTITY] Appellant Vs. [ENTITY] Respondent (2) Criminal Appeal No. [CASE NUMBER] [ENTITY] Appellant Vs. [ENTITY] Respondent (3) Criminal Appeal No. [CASE NUMBER] [ENTITY] Appellant Vs. [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY] HON'BLE MRS. JUSTICE [ENTITY] Present: Ms. [ENTITY], Advocate and Mr. [ENTITY], Advocate for the appellants (Amicus Curiae). Mr. [ENTITY], Addl. A.G., Punjab. [ENTITY], J.
Vide this judgment, the above mentioned three appeals would be disposed of as they have arisen out of the common judgment passed by the trial court dated 05.8.2004. [CASE NUMBER] - 2- The present case relates to kidnapping and murder of a minor boy with a view to quench the thirst of appellant [ENTITY] to conceive a baby boy. Prosecution story in brief is that on the night intervening 01/02.7.2000, complainant [ENTITY] was watching television along with other family members in the house of his brother [ENTITY]. Younger son of the complainant [ENTITY] aged about 5 years had gone out to urinate. After watching the television at about 12.30 A.M., when they looked for [ENTITY], they found that he was not present there. He searched for [ENTITY] in the nearby huts but he could not be found. The complainant along with his brothers searched for his son throughout the night but could not locate him. The complainant believed that [ENTITY], so called [ENTITY], [ENTITY] and [ENTITY] wife of [ENTITY] in connivance with each other had kidnapped his son [ENTITY] with the intention to kill him. [ENTITY] had come from Uttar Pardesh about 1 months ago and had started living in their huts on the brick-kiln and practiced sorcery. [ENTITY] lived in the house of [ENTITY] and used to tell the general public that [ENTITY] could be blessed with a son by offering blood of human child to [ENTITY]. The said fact was told by [ENTITY] wife of [ENTITY] to other ladies. She said that [ENTITY] was a man of deeds and she would soon conceive a male child. [ENTITY], [ENTITY] and [ENTITY] had disappeared from the brick-kiln on the previous night. He was confident that all the three, in connivance with each other, had abducted his son with the intention to kill him.
On the basis of the statement of the complainant, formal FIR No. 105 dated 02.7.2000 was registered at Police Station Sahnewal under [SECTION] of the [ACT]. [CASE NUMBER], [CASE NUMBER] [CASE NUMBER] - 3- ('[ACT]' for short).
Inspector [ENTITY] Station House Officer, Police Station Sahnewal, after registration of the FIR, visited the spot along with the complainant and his brother. He prepared the rough site plan and inquired from the persons present at the spot. At about 2.30 P.M., Inspector [ENTITY] along with other police officials, complainant [ENTITY], his brother [ENTITY] and [ENTITY], owner of the brick-kiln, were present on the brick-kiln of [ENTITY] where they received a secret information that [ENTITY] had been seen near the Bus Stand Katani. On the basis of the said information, raid was organised and appellant [ENTITY] was apprehended. On inquiry about the kidnapped child, appellant [ENTITY] suffered a disclosure statement that after kidnapping [ENTITY] along with [ENTITY] and [ENTITY], they had committed his murder. The blood drawn from the child in a steel [ENTITY] (bowl) was offered to [ENTITY] and she drank the same. Thereafter, he had told his companions to run away from the spot and assured that he would dispose of the body. The appellant further stated that he had concealed the dead body of the child in the fields of [ENTITY] near the brick-kiln. On the basis of the said statement, appellant [ENTITY] got recovered the dead body of [ENTITY] from the disclosed place. The dead body was identified by [ENTITY] and [ENTITY]. Blood from the place of recovery of the dead body was lifted from the spot and the dead body of [ENTITY] was sent for post mortem examination. On the same day, raid was conducted at Railway Station, Doraha and Sahnewal. Accused [ENTITY] and [ENTITY] were arrested. All the accused were got medically examined.
On 04.7.2000, appellants [ENTITY] and [ENTITY] were [CASE NUMBER] - 4- interrogated by Sub Inspector [ENTITY] in the presence of PWs [ENTITY] and [ENTITY]. During interrogation, appellant [ENTITY] suffered a disclosure statement and on the basis of the same, he got recovered Dah from the disclosed place. Appellant [ENTITY] during interrogation suffered a disclosure statement and got recovered the [ENTITY] from the disclosed place. The recovered articles were taken in possession.
After completion of investigation and necessary formalities, challan was presented against the appellants.
During trial, prosecution examined 17 witnesses in support of its case.
After the close of prosecution evidence, the appellants when examined under [SECTION] of the [ACT] ('[ACT]' for short), prayed that it was a false case and PWs had deposed falsely.
The appellants did not examine any witness in their defence.
The trial court vide judgment/order dated 05.8.2004 convicted and sentenced the appellants for commission of offence under [SECTION] and [SECTION] [ACT]. Hence, the present three appeals by the appellants.
Learned counsel for appellants has submitted that the prosecution had miserably failed to prove its case. The appellants had been falsely involved in this case merely on the basis of suspicion and hearsay evidence. No independent witness had been joined/examined by the prosecution to substantiate its case. Recoveries of weapon had been falsely foisted on the appellants. The appellants had no motive to kidnap the minor child of the complainant and thereafter, commit his murder. The [CASE NUMBER] - 5- statement of PW-11 [ENTITY] had been recorded later on by the investigating officer to introduce the circumstance of last seen. In fact, the appellants had been beaten up by the investigating agency and thereafter, they were falsely involved in this case. Learned counsel for the appellants has placed reliance on '[PRECEDENT], wherein it was held as under:-
"Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt."
Learned counsel for the appellants has next placed reliance on '[PRECEDENT], wherein it was held as under:-
"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See [PRECEDENT]); [PRECEDENT]; [PRECEDENT] ; [PRECEDENT]); Balwinder Singh v. [ENTITY] (AIR 1987 SC 350); [PRECEDENT]. The [CASE NUMBER] - 6-
circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. [ENTITY] (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
Learned state counsel, on the other hand, has submitted that the prosecution witnesses had deposed in a most natural manner. The prosecution witnesses had no ill will against the appellants to falsely involve them in this case. Moreover, recoveries of the dead body, dah and [ENTITY] had been effected by the appellants on the basis of their disclosure statements. The statement of PW [ENTITY] had been recorded on 02.7.2000 itself.
The present case rests on circumstantial evidence. It is settled proposition of law that the prosecution is required to establish the complete chain of circumstances which would lead to the inference that the offence has been committed by none else but the accused. Let us examine the circumstances brought on record by the prosecution to prove its case.
PW-2 Dr. [ENTITY] deposed that on 03.7.2000, he had conducted the post mortem examination on the dead body of deceased [ENTITY]. As per the post mortem report [CASE NUMBER] - 7- Ex. P-3, the age of the deceased has been mentioned as 5 years and it appears that due to inadvertence, the age of the deceased has been typed as 8 years while recording the statement of PW-2. This witness further deposed that on examination of the dead body, he found following injuries the person of the deceased:-
1. 1" x 3/4" x /1/2" right chask, 4 cm. from the right orbit. Bone deep.
2. 1" x " x bone deep below lower lip 1/2"
underlying mendible broken, dislocating under teeth front.
3. 3 x 1" muscle deep on neck 1" from Mendible lower border.
4. 4" x 3/4" cutting lower portion of the skull, right sided cutting ear pinna right from the middle.
5. 3" x 1" x " on the neck running laterally on the neck right side.
6. 4" x 4" on the neck supraclavicular right sided cutting spins and under lying muscles.
7. 2" x 1/2" muscle deep supraclavicular on the right side in the supraclavicular fossa.
8. Superficial and deep abrasions over the right shoulder.
9. Deep incision 3/4" x 1/4" x 1/4" over the lower left Palmer area.
10. 1" x 1/2" bone deep incision on the scal 1 cm. from the left ear pinna. Cut through and through. The cause of death in his opinion was due to multiple injuries suffered by the deceased which were sufficient to cause [CASE NUMBER] - 8- death in the ordinary course of nature. As per this witness, the stomach of the deceased contained food particles.
Complainant [ENTITY], while appearing in the witness box as PW-7, has deposed as per the contents of the FIR and has further deposed that after registration of the FIR, police had accompanied him to the spot. He further deposed qua the apprehension of accused [ENTITY] from the room of the Bus Stand of village Katani Kalan. He further deposed that on the basis of the disclosure statement by accused [ENTITY], dead body of his son was recovered from the disclosed place.
PW-8 [ENTITY] has corroborated the statement of the complainant qua the contents of the FIR.
PW-9 [ENTITY], mother of the deceased, has corroborated the statement of the complainant qua the contents of the FIR. She further deposed that about 15-20 days prior to the occurrence, appellant [ENTITY] was sitting along with other ladies. She was also present in the said gathering. [ENTITY] accused told the ladies that accused [ENTITY] who called himself "[ENTITY]" had told her that in case she drinks the blood of a sacrificed male child, she would be able to give birth to a male child.
PW-10 [ENTITY], owner of the brick-kiln, deposed that he was running the brick-kiln in the area of village Katani Kalan. Most of the labour working on his brick-kiln belonged to Uttar Pardesh or Bihar apart from some local residents. Some huts had been put up near the brick-kiln for residential purposes of the labour. About three years ago, [ENTITY] aged about 5/6 years had gone to urinate while the other persons were watching television. However, [ENTITY] could not be [CASE NUMBER] - 9- located, thereafter the matter was reported to the police. He also came to know about the occurrence and reached the brick-kiln. He accompanied the police to the bridge in the area of Katani canal where [ENTITY] was found sitting in a room. Appellant [ENTITY] was apprehended and on the basis of his disclosure statement, dead body of [ENTITY] was recovered from the disclosed place. On 04.7.2000, [ENTITY] and [ENTITY] were arrested from Railway Station, Sahnewal. On the basis of disclosure statement suffered by appellant [ENTITY], one [ENTITY] was recovered from the disclosed place. Similarly, on the basis of the disclosure statement suffered by appellant [ENTITY], one dah was recovered from the disclosed place. [ENTITY] as well as dah were taken in police possession by the investigating officer.
PW-11 [ENTITY] deposed that he was working as a Munshi on the brick-kiln of [ENTITY] at village Katani Kalan. On the night of 01.7.2000, he was present in his room above the office of brick-kiln along with his family. He had gone to urinate and saw [ENTITY] carrying a child in his lap. [ENTITY] was following him armed with a dah. [ENTITY] was carrying a shining kauli in her hand. Thereafter, he went to sleep and in the morning, he left for Ludhiana for some work. He returned back to the brick-kiln at about noon time on 02.7.2000 and came to know about the present occurrence. His statement was recorded by the police.
PW-14 [ENTITY] deposed that he was the resident of village Katani Kalan. On 02.7.2000, he reached his fields from where the dead body of [ENTITY] was recovered by the police on 02.7.2000.
[CASE NUMBER] - 10- The other witnesses are official witnesses and relate to investigation carried out before the preparation of final report.
There is no force in the argument raised by learned counsel for the appellants that the prosecution case was based on hearsay evidence. In the present case PW-9 [ENTITY] mother of the deceased was present in the gathering where appellant [ENTITY] had proclaimed that she had been told by [ENTITY] that in case she drinks the blood of a sacrificed male child, she would be able to give birth to a male child. This aspect of the statement of PW-9 could not be shaken during her cross examination. Hence, we are not convinced with the argument raised by the learned counsel for the appellants that the present case was based on hearsay evidence.
We are also not convinced with the argument raised by the learned counsel for the appellants that the present case was merely based on suspicion. In the present case, PW-9 had heard appellant [ENTITY] disclosing to the other ladies that she would be able to conceive a male child in case she drank the blood of a sacrificed male child as told to her by appellant [ENTITY]. PW-11 [ENTITY] had last seen the appellants carrying the child. The dead body of the child was recovered on the basis of the disclosure statement suffered by appellant [ENTITY] from the fields of PW [ENTITY]. Hence, it cannot be said that the appellants had been held guilty by the trial court qua kidnapping and murder of deceased [ENTITY] merely on the basis of suspicion.
In a case of circumstantial evidence motive gains significance. In the present case, it is apparent from the prosecution evidence that appellant [ENTITY] had the motive to [CASE NUMBER] - 11- kidnap and commit the murder of deceased [ENTITY] as she had been made to believe by appellant [ENTITY] that she would be able to give birth to a male child in case she drank the blood of a sacrificed male child. Appellant [ENTITY] naturally helped appellant [ENTITY] in achieving her goal as it would have lent credence to his witchcraft. Appellant [ENTITY] also lived in the huts put up on the brick-kiln of [ENTITY] and helped the other appellants to achieve their goals. The dah used at the time of murder of the deceased was recovered on the basis of the disclosure statement suffered by appellant [ENTITY] from the disclosed place. Hence, all the appellants had a strong motive to commit the crime.
Recoveries were effected on the basis of the statement suffered by the appellants during investigation. On the basis of disclosure statement suffered by appellant [ENTITY], dead body of deceased [ENTITY] was recovered from the fields of [ENTITY]. In this regard, the statement of official witnesses are duly corroborated by PW-7 [ENTITY], PW-8 [ENTITY] and PW-10 [ENTITY]. PW-10 [ENTITY] is an independent witness. The said witness is the owner of the brick-kiln and had no ill will against any person. The said witness has corroborated the prosecution version qua the recovery of dead body of the deceased from the fields of [ENTITY] on the basis of the disclosure statement suffered by appellant [ENTITY]. So far as appellant [ENTITY] is concerned, dah was recovered on the basis of the disclosure statement suffered by him on 04.7.2000 before Sub Inspector [ENTITY] during interrogation. PW-10 [ENTITY] has corroborated the recovery of dah on the basis [CASE NUMBER] - 12- of disclosure statement suffered by appellant [ENTITY]. Similarly, recovery of kauli on the basis of disclosure statement suffered by appellant [ENTITY] before PW-17 Sub Inspector [ENTITY] during interrogation, has been duly corroborated by PW-10 [ENTITY]. Since, in the present case the recoveries effected from the appellants on the basis of their disclosure statements are duly corroborated by independent witness PW-10 [ENTITY], the possibility that the recoveries have been falsely foisted on the appellants, is ruled out.
PW-11 [ENTITY] had last seen the appellants with the deceased. The said witness worked as a Munshi on the brick- kiln of [ENTITY] and is, thus, an independent witness. He is residing in a room above the office of the brick-kiln along with his family and saw [ENTITY] carrying child in his lap. The statement of the said witness was recorded under [SECTION] [ACT] on 02.7.2000. The said witness has deposed that he had gone to Ludhiana for some work in the morning on 02.7.2000 and had returned back at about noon time and thereafter, his statement was recorded by the police. The said witness had no ill will against the appellants to have falsely involve them in this case. Apparently, the said witness did not suspect any foul play when he saw appellant [ENTITY] carrying a child followed by [ENTITY] and [ENTITY] as he believed that they were going to do labour work. However, when he returned back from Ludhiana, he came to know about the occurrence and got recorded his statement. Hence, there is no force in the argument raised by learned counsel for the appellants that PW-11 had been joined at a later stage to strengthen the prosecution case. Rather, the statement of [CASE NUMBER] - 13- PW-11 [ENTITY] being natural inspires confidence.
Learned counsel for the appellants also has drawn our attention towards the medical examination of the appellants to substantiate the argument that the appellants had been given beatings by the investigating agency before falsely involving them in the present case. A perusal of Ex. PW-13/D, Ex. PW-13/E and Ex. PW-13/F reveals that some injuries were found on the person of the appellants during their medical examination. A perusal of the said documents further reveals that the duration of the injuries were 2-3 days. The appellants were examined on 03.7.2000. The appellants were arrested on 02.7.2000. The fact that the duration of the injuries were 2-3 days, falsifies the argument raised by learned counsel for the appellants that they had been inflicted injuries during investigation.
Learned counsel for the appellants in order to substantiate the argument that investigation in the present case had not been conducted in a proper manner, have drawn our attention to FIR Ex. PW-7/A wherein it has been noted by the Judicial Magistrate Ist Class that he had received the copy of the FIR on 7.30 P.M. through Constable [ENTITY] whereas during trial, the prosecution had examined Constable [ENTITY] PW-3 in this regard. A perusal of the FIR further reveals that Constable [ENTITY] had been sent to deliver the special report to the concerned officers. Constable [ENTITY], while appearing in the witness box as PW-3, has categorically deposed that he delivered the special report to the Magistrate at 4.00 P.M. whereas as per the noting of the Judicial Magistrate Ist Class on the FIR Ex. PW-3/A, the copy of the FIR had been received at 7.30 P.M. through Constable [ENTITY]. Be that as [CASE NUMBER] - 14- it may, the said fact in itself would not be sufficient to discard the prosecution case. Moreover, in the present case, the FIR had been initially registered under [SECTION] [ACT]. The offence under [SECTION] had been added later on after the recovery of dead body of the deceased [ENTITY]. Prosecution had been successful in bringing on record various circumstances which establish the guilt of the appellants and hence, this discrepancy, pointed out by the learned counsel for the appellants, cannot be said to be fatal to the prosecution case.
Thus, in the present case, prosecution had brought various circumstances on record which complete the chain leading to the inference that the appellants are guilty of the charges framed against them. There is no escape from the conclusion that the crime had been committed by the appellants and none else. Appellant [ENTITY] had been proclaiming that she would be able to conceive a male child in case she drank the blood of a sacrificed male child. The said belief had been sown in the mind of appellant [ENTITY] by appellant [ENTITY] and with a view to conceive a male child, appellant [ENTITY] kidnapped the deceased along with appellants [ENTITY] and [ENTITY]. Appellant [ENTITY] was residing in the hut of appellant [ENTITY] and obviously wanted to help her to establish his magical powers. It has come in evidence that appellant [ENTITY] was living alone in his hut and he also joined hands with the other appellants for commission of the crime. All the appellants were last seen together by PW-11 [ENTITY] with the child. Dead body of the child was recovered on the basis of the disclosure statement suffered by appellant [ENTITY]. Weapon of offence was recovered on the basis of the disclosure statement suffered [CASE NUMBER] - 15- by appellant [ENTITY]. The medical evidence corroborates the infliction of injuries on the person of the deceased with a sharp edged weapon. PW-2 deposed that possibility of the injuries on the person of the deceased being caused with dah Ex.P-27 could not be ruled out. The appellants were found missing from their huts at the time of occurrence. There is no quarrel with the preposition of law settled vide the judgments relied upon by the counsel for the appellant but the same fail to advance the case of the appellants as in the present case prosecution has succeeded in proving its case. Hence, the trial court rightly convicted and sentenced the appellants for commission of offence under [SECTION] and [SECTION] [ACT].
Accordingly, all the three appeals are dismissed.
([ENTITY]) ([ENTITY]) JUDGE JUDGE November 17, 2011 Gurpreet