IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 2030 of 2002 Date of Decision : September 23, 2010 Dilbag Singh ….Petitioner Versus Central Bureau of Investigation and another .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Amit Rawal, Advocate for the petitioner. Mr. Ajay Kaushik, Advocate for C.B.I.-respondent No.1. Mr. B.R. Gupta, Advocate for respondent No.2. T.P.S. MANN, J. Judgment dated 7.2.2002 passed by Additional Sessions Judge, Ambala acquitting respondent Bani Singh of the charges against him stands challenged by the petitioner at whose instance the FIR was registered. As per the prosecution, on 21.2.1995, Poonam, wife of the petitioner, went to the fields of Satyawan, with whom the petitioner used to work as a labourer, to bring animal fodder and fire wood. When the petitioner reached the said fields, he found his wife missing, whereas the fodder and fire wood were lying in the fields. He returned back home but did not find his Criminal Revision No. 2030 of 2002 -2- wife at his house. He, alongwith Om son of Har Narayan, started searching for his wife but in vain. He then reported the matter to the police and, accordingly, FIR No.17 dated 22.2.1995 under Sections 376 and 364 IPC was registered against respondent Bani Singh and one Om Parkash Bairagi. During the course of investigation, putrefied and decomposed dead body of Poonam was found lying in the fields of Azad Singh on 24.3.1995. A woollen shawl was also recovered from near the dead body. A chunni was found tied around her neck. The dead body was subjected to post mortem. Further, it was revealed that on 21.2.1995 Kamla, wife of Ranbir Singh and Boonda, wife of Preeta, while collecting animal fodder from the fields of one Veera had seen respondent Bani Singh, his co-accused Om Parkash Bairagi and one unknown person proceeding towards the fields of Satyawan. Soon thereafter they had heard the screams of Poonam and saw the assailants grappling with her in the fields of Satyawan. The petitioner felt dissatisfied with the investigation conducted by the police and, accordingly, approached this Court. Vide order dated 24.4.1997, this Court entrusted the investigation to the C.B.I. Various steps were taken by the C.B.I. during the course of investigation. It was reveled that on 21.2.1995 at about 4.00 p.m. when respondent-Bani Singh and his co-accused Om Parkash Bairagi boarded the bullock cart of Dharamvir Singh of village Kathura at Shyama Ki Khui, the clothes of Bani Singh and Om Parkash Bairagi were stained with mud. On 27.8.1999, respondent Bani Singh was arrested. Involvement of one Bala was noticed during the investigation but she was got discharged on the application moved by the C.B.I. as her involvement in the commission of crime was not established. Om Parkash Bairagi died during the course of Criminal Revision No. 2030 of 2002 -3- investigation and, accordingly, the proceedings against him were dropped. Upon completion of investigation and presentation of challan followed by commitment of the case, charges under Sections 120-B, 354, 201 read with Section 120-B and 302 IPC and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined examined PW1 ASI Ram Mehar, PW2 Inspector Ram Kishan, PW3 HC Om Parkash, PW4 Narain Singh, Statistical Assistant, General Hospital, Nuh, PW5 Rakesh Kumar, PW6 HC Shri Krishan, PW7 HC Ram Niwas, PW8 Constable Ranbir Singh, PW9 Satish Kumar Mehta, PW10 Dharamvir, PW11 Azad Singh, PW12 Ramdhari, PW13 Dr. Vijay Pal Khanagwal, PW14 Tara Chand, PW15 Parveen Kumar, PW16 Dharam Pal, PW17 Kailasho Devi, PW18 Ram Kumar, PW19 Ms. Vani Gopal Sharma, the then Judicial Magistrate 1st Class, Gohana, PW20 Som Raj Thakur, Inspector, C.B.I., PW21 Kamla, PW22 Boonda. PW23 Bala, PW24 Dr. M.K. Goyal, PW25 Jagwanti @ Guddi, PW26 Ved Parkash Sharma, Inspector, C.B.I., PW27 Vijayvir Singh, Inspector, PW28 Dilbagh Singh alias Bagga, PW29 Dalbir, PW30 Mohinder, PW31 Ranbir and PW32 S.K. Chaudhary. However, Satyawan, Mohinder Singh, Ram Karan, Swatri, Mahavir and Nirmala Devi were given up as having been won over, while Angoori and Dharam Pal as unnecessary. During his examination under Section 313 Cr.P.C., respondent Bani Singh pleaded false implication. According to him, the Harijan community was jealous of him and his Criminal Revision No. 2030 of 2002 -4- family being Jats as well as highly educated and financially well of. He was in the service of Haryana government for the last 34 years and posted at different stations in the State and used to reside with his family at the place of his posting. His son was posted as Lecturer at Rohtak. His elder daughter was Lecturer at Hisar, while younger a Post Graduate. He used to reside at Rohtak during the period of his posting since 1983. Earlier to that, he was at Sonipat. He owned one Haveli in his native village Kathura which was lying abandoned. He rarely visited his village as his land was being cultivated by his brother. The complainant party wanted his land for cultivation and abandoned Haveli for tethering the cattle but he refused. For that reason he was falsely involved in the case. After going through the evidence available on the file and hearing learned counsel for the parties, the trial Court acquitted respondent Bani Singh of the charges against him. Aggrieved of the impugned judgment of acquittal, the complainant filed the present revision under Section 401 Cr.P.C. This Court has heard learned counsel for the parties and, with their assistance perused the evidence brought on the record. The star witnesses of the prosecution are PW17 Kailasho Devi, PW22 Boonda, PW23 Bala, PW28 Dilbagh Singh @ Bagga, PW29 Dalbir and PW31 Ranbir. It is a fact that all of them are closely related to each other. However, that by itself is no ground to reject their testimonies. Their testimonies can be relied upon if they are found to be inspiring confidence. Criminal Revision No. 2030 of 2002 -5- The trial Court while analyzing the testimonies of PW21 Kamla and PW22 Boonda held that there were inherent contradictions on material aspects and also not inspiring confidence for the following reasons :- “Their deposition in addition to being inherently contradictory on material aspects is also non- confidence inspiring for the following reasons:- 1. In the given circumstances of close relationship of Smt. Poonam, these ladies were expected to rush towards the accused and his associates for taking the bull from the horns. They were also having sickles in their hands as they were cutting grass. Deposition of Smt. Kamla that she out of fear did not proceed to that side and statement of Smt. Bunda PW that she did go but was chased back and she continued walking on normal speed, is unacceptable. 2. It is admitted by these witnesses that for going to their village fields of Satyawan would come on the way. Dilbagh husband of the deceased was working on the crusher there; why these ladies did not approach him and rushed to the village is intriguing. 3. Ranbir (PW31) is husband of Smt. Kamla PW. While making his statement in the court that she went on searching Smt. Poonam but no trace was found, he does not say that his Criminal Revision No. 2030 of 2002 -6- wife Smt.Kamla had already told him about the accused having grappled with Smt. Poonam. 4. Ranbir (PW31) admittedly had made representation to the National Human Rights Commission about this matter. In his pointed cross examination as PW31, he admitted that he had not mentioned the name of any person as the culprit. Had he been informed about the participation of the accused by his wife, Smt. Kamla as has been stated by her as PW21 now in the court, there was no chance of such omission from him in said representation. 5. Statements of Smt. Kamla and Smt.Bunda PWs under Section 161 Cr.P.C. were recorded on 10.4.1999 and under Section 164 Cr.P.C. were recorded on 11.10.1999. The occurrence is of 21.2.1995. Their statements thus for the first time came after more than five years. Their explanation that they were not listened and were rather maltreated by the police refusing to record their statements, is not convincing. It would rather be seen that had these witnesses actually watched the accused grappling with Poonam, they were to disclose this aspect at the first available opportunity. The following points would reveal that at crucial points as below, they did not come out with their Criminal Revision No. 2030 of 2002 -7- version making them uncredit-worthy of their statements made in the court. After their silent “pushing in the investigations” arena by the investigating officer on 10.4.1999. (i) Complaint Ex.PA by Dilbagh gives the first available version. He does not make the mention of accused at all. Explanation of Dilbagh PW that he had gone to the Police Station straight from the fields without visiting the village where Smt. Kamla and Bunda were admittedly residing residing is totally contrary to his own stand in Ex.PA where he categorically states that he had gone to the village before coming to the Police Station. He rather has elaborated that hundred's of persons had accompanied him for searching Smt. Poonam; (ii) The police was present in the village w.e.f. 22.2.1995 and had been frequenting the village quite often. No statement was made. Version of Smt.Kamla and Smt. Bunda that they were rather rebuked by the SHO Ajit Singh is not tenable as in that eventuality they through their men folk could have approached the higher police or executive authorities such as SSP, D.C. etc., but it did not happen. Criminal Revision No. 2030 of 2002 -8- (iii) Even when the dead body of Smt.Poonam was recovered on 23.3.1995 and the police was present, no whisper was made by either of them about alleged grappling of the accused with Smt.Poonam. (iv) Smt. Bala (PW23) a member of the family had been arrested by the police on 27.3.1995. She remained in custody till 22.7.195. Neither of these witnesses had raised any accusing finger at the accused in a bid to establish innocence of Smt. Bala. In said crises that a member of the family was in jail, silence on the part of these witnesses is unexplained ;and (v) The C.B.I. had taken over the investigations on 5.6.1998. They had even issued a pamphlet mark DX on December 1998 announcing reward of Rs.50,000/- for the informant who could give some clue but neither of these ladies or even their men-folk to whom they had allegedly disclosed every thing, came forward to furnish their details. 6. Neither of these witnesses nor men folk in the village viz. Ranbir (PW31) Dilbagh (PW29) came forward to make any criminal complaint in the Court of law against the Criminal Revision No. 2030 of 2002 -9- accused for his prosecution for molestation and murder of Smt. Poonam. 7. Smt. Bala (PW23) has admitted in his cross-examination that Smt. Kamla her sister had accompained her to the fields of Dhupa Jaat for peeling of sugarcane and that Smt. Kamla had returned at 11.00 a.m. Fields of Dhupa are quite for away from the village. Without any conveyance specially deposed by Smt. Bala PW, it is taken that she had gone on foot. She could have been back home in the village after traversing distance of about 5 km. only around 1.00 p.m. Her going back to the fields alongwith Smt. Bunda to cut grass from the fields of Bheera is highly doubtful. Statement of Smt. Kamla that she waited for her husband to arrive to narrate her the incident is unbelievable as if the version of Smt. Kamla and Smt. Bunda PWs is true, Smt. Poonam was in need of immediate help. They could have told this occurrence to others so that said help to rescue her could be available and; 8. Had these witnesses, i.e. Smt. Kamla and Smt. Bunda being truthful, when the men- folk had gone in search of Smt. Poonam (when she had not arrived even till sunset), they were to accompany them so that they could show the place where they had allegedly seen the accused grappling with Criminal Revision No. 2030 of 2002 -10- Smt. Poonam, but they were sitting relaxed at home and rendered no help to the men-folk and other villagers who had gone to the fields and in surrounding areas in search of Poonam.” This Court, on going through the aforementioned reasons of the trial Court in holding that the testimonies of PW21 Kamla and PW22 Boonda did not inspire confidence, is of the view that no fault can be found with the said reasons as they are brought out on careful examination of the statements of the said witnesses and appreciated by the trial Court in its proper perspective. Accordingly, it has rightly been held that Kamla and Boonda had not seen the occurrence on 21.2.1995 and, therefore, their testimonies were not worthy of credence. PW23 Bala had testified that she came to know from Meena, younger sister of Poonam that Poonam had gone to the fields with Jagwanti @ Guddi, wife of Satyawan. When she went to enquire about the whereabouts of Poonam, she learnt that Jagwanti @ Guddi had returned back home but she found three persons, including the accused standing near Poonam. She thought that they might be helping her to lift the grass. She further testified that Jagwanti @ Guddi had seen accused Bani Singh having a torch in his hand, Om Parkash Bairagi with a Kassi and can of oil. Apparently, the deposition of PW23 Bala was not based upon her personal knowledge rather it was based upon the information allegedly received from Jagwanti @ Guddi. Despite the same, neither Bala nor Jagwanti @ Guddi came out with such information before the police nor they moved any higher authorities against the police for not taking Criminal Revision No. 2030 of 2002 -11- action against the accused. PW23 Bala was initially suspected to be involved in the crime and, therefore, remained in custody for about four months. At the time of her remand, she could have informed the Court about the involvement of accused Bani Singh and Om Parkash Bairagi in the crime but did not do so. She admitted during her cross-examination that she did not make any statement before any authority in respect of the version given by her in the Court as PW23 before making statement to the C.B.I. on 26.6.1998 i.e. after about 3½years of the occurrence. PW10 Dharamvir had testified that after unloading the logs of wood at Gohana on 21.2.1995 at about 3.00 p.m., he stopped for cutting grass from the side of well. After collecting the grass, he started back for his village. Accused Bani Singh and Om Parkash Bairagi also sat on his cart for the village. At that time accused Bani Singh was having a Kassi. The clothes worn by them were stained with mud. They got down from the cart near the house of accused Om Parkash Bairagi. Throughout the journey, he did not have any talk with them and they also did not interact with each other. Fact remains that he made the statement for the first time after about three years of the occurrence. His explanation that he had gone out is not worthy of credence. PW14 Tara Chand and PW28 Dilbagh Singh only identified the dead body which was found in the fields of Azad Singh. Azad Singh also appeared in support of the prosecution as PW11. Satyawan, from whose fields Poonam was found missing and with whom PW28 Dilbagh and his deceased wife used to work was associated with the investigation but he was Criminal Revision No. 2030 of 2002 -12- not examined by the prosecution at the trial of the case. PW28 Dilbagh Singh PW29 Dalbir and PW31 Ranbir did not utter even a single word against accused Bani Singh. The testimony of PW30 Mohinder of having noticed a vehicle going towards the fields of Satyawan, Azad Singh and Bani Singh is of no significance as it did not incriminate accused Bani Singh. Coming to the testimony of PW17 Kailasho Devi, sister-in-law of PW28 Dilbag that about nine years ago, accused Bani Singh had expressed desire to have sex with the deceased and paying money to her is of no significance. Fact remains that she remained silent for nine long years to divulge the aforementioned fact. Coming to the medical evidence it may be noticed that PW13 Doctor Vijay Khanagwal, who had conducted autopsy on the dead body of Poonam, testified that there was ligature mark on the neck of the deceased. The dead body was in an advanced stage of decomposition. The cause of death could not be ascertained at the time of the autopsy. However, before the trial Court he opined that the cause of death was strangulation. Fact remains that he did not mention about asphyxia and, thus, merely because the Chunni was found around the neck and the same was having a fixed knot in the back would not be sufficient to hold that it was a case of strangulation. Further, even the commission of offences of rape and outraging the modesty are not made out by considering the condition of the body at the time of post mortem. PW 32 S.K. Chaudhary, who had subjected accused Bani Singh to lie detector test testified that the report of such a test which was conducted twice, one at Sonipat and the other at Delhi was negative. Criminal Revision No. 2030 of 2002 -13- Taking into consideration the aforementioned circumstances, this Court is of the considered view that no case is made out for interfering in the impugned judgment of acquittal passed by the trial Court. The revision is without any merit and, therefore, dismissed. ( T.P.S. MANN ) September 23, 2010 JUDGE satish Satish Kumar 2014.05.19 12:42 I attest to the accuracy and integrity of this document Chandigarh