Crl. Appeal No. 862-DB of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 862-DB of 2006 Date of Decision : February 05, 2009 Rohtash Kumar .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. C. Sibal, Senior Advocate with Mr. Aman Chaudhary, Advocate and Mr. V. S. Rana, Advocate for the appellant. Mr. Kulvir Narwal, Addl. A. G., Haryana. * * * L. N. MITTAL, J. : By way of instant appeal, Rohtash Kumar has challenged judgment of conviction dated 09.09.2006 and order of sentence dated 12.09.2006 passed by learned Additional Sessions Judge, Faridabad, whereby the appellant stands convicted under Sections 302 and 404 of the Indian Penal Code (in short – IPC) and sentenced to undergo life imprisonment and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year under Section 302 IPC and also sentenced to undergo rigorous imprisonment for two years Crl. Appeal No. 862-DB of 2006 2 and to pay fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for three months under Section 404 IPC. However, both the substantive sentences have been ordered to run concurrently. Prosecution case in brief is as under :- Marriage of Sonia (since deceased), Jat by caste, was solemnized with appellant Rohtash Kumar, Bania by caste, in February 2003. However, they started quarrelling with each other after 2-3 months of the marriage. The appellant started beating Sonia. Consequently, in March 2004, joint petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, was filed by the appellant and the deceased at Rohtak. The said petition was fixed for 03.09.2004 for second motion. Sonia aged about 30 years, Master in Pharmacy, was serving as Lecturer in B.S.A. Pharmacy College, Faridabad and was residing as Hostel Warden in the College Hostel located in Kothi No.783, Sector 21-A, Faridabad, along with hostel girls. On 02.09.2004, at about 06:00 A.M., Sonia telephonically told her mother Dhanpati (at Rohtak) that the appellant had visited her the previous evening at about 08:00 P.M. and told her that he would come to the Court on 03.09.2004 to make statement for divorce. On 02.09.2004, at about 05:00 P.M., complainant Sube Singh, resident of Rohtak (father of the deceased), along with his nephew Wazir Singh, went to see his daughter. On inquiry, Ghanshyam – Security Guard, Arjun – Cook, and Bimla – Caretaker of the hostel told the complainant on the gate that on the same day, at about 01:00 P.M., Rohtash visited Sonia. They talked with each other for some time in verandah. After taking tea etc., Rohtash went away alone. After quite some time, they i.e. Ghanshyam etc. saw that Sonia was lying dead in the gallery near the trees. She had been murdered by throttling. The complainant found that there were marks of nail injuries and scratches on her neck and breasts. Police party headed by Crl. Appeal No. 862-DB of 2006 3 SI Vinod Kumar, Incharge Police Post Sector 21-A, Faridabad, on receiving telephonic information regarding murder of Sonia, also reached the spot. Sube Singh made statement Ex.P-1 to SI Vinod Kumar adding that the appellant had murdered Sonia after taking her in confidence, on account of divorce petition. Vinod Kumar made endorsement Ex.P-51 on the statement and sent it to Police Station, where on its basis, FIR Ex.P-12 was registered. The spot was got photographed. SI Vinod Kumar prepared inquest report Ex.P-53 and sent the dead body for autopsy. He also prepared rough site plan Ex.P-52. Locks of hair, a pair of ladies chappals, handkerchief, an ear tops, blood stained earth, a rope and a chunni (stole) of the deceased were lifted from the spot vide memo Ex.P-2. Statements of Ghanshyam, Bimla etc. were also recorded. Meanwhile, intimation was received from Taneja Guest House, Faridabad that a person staying under the name of Amit, attempted to commit suicide and had fled away. SI Vinod Kumar went there. A wrist watch, a diary (Ex.P-54) and a letter (Ex.P-55) placed in the diary, left by the said guest (which were of the appellant) were seized vide memo Ex.P-5. It was discovered that the appellant had stayed there under pseudo name Amit. Dr. Virender Yadav, Dr. Beena Sharma and Dr. Manocha conducted post-mortem examination on 03.09.2004 on the dead body of Sonia. There was bleeding with clotted blood from both nostrils and right side of mouth. There were multiple abrasions on front of neck with large reddish contusions on both shoulders. There were also four abrasions each on the right and left side below and above clavical respectively. In addition , it was also observed as under :- “Upper part on the chest is depressed with abrasions, and contusions. On dissection muscle of the neck contused with haemorrahage with fracture of Crl. Appeal No. 862-DB of 2006 4 thyroid cartilage and fracture of tracheal rings with blood clots in trachea. Adjoining muscles and upper chest muscles were contused extensively with blood clots with bilateral fracture of clavical and upper second and third ribs. Both the lungs were congested. Right chamber of heart was full of blood whereas the left was empty. Stomach contained semi digested food. Liver, spleen and kidneys were congested. No external marks of injuries were present on genitailae. Uterous was non-gravit, two swabs per vagina were taken.” Cause of death was opined to be asphyxia as a result of smothering and throttling, which was ante-mortem and sufficient to cause death in natural course. Probable duration between injuries and death could be two minutes. Parcels of clothes of deceased, her vaginal swabs and nails, along with envelope given by doctors, were seized vide memo Ex.P-17. Dhanpati, mother of the deceased, stated during investigation that on 02.09.2004, at about 04:15 P.M., she telephoned her daughter Sonia on her mobile telephone to inquire whether her father had reached her, but the call was received by the appellant, who disclosed that he had murdered Sonia in her hostel by strangulating her on account of impending divorce and he had fled away and would commit suicide. He also sent letter Ex.P-6 at the residential address of the complainant. The letter was handed over to the police. Jagatpal of Taneja Guest House stated before the police that a person had stayed in the Guest House under the name of Amit on 01.09.2004 and again on 02.09.2004, on which date at about 06:30 P.M., the said guest attempted to commit suicide. Mahender-attendant came Crl. Appeal No. 862-DB of 2006 5 crying and thereupon, the said guest, who turned out to be appellant, had fled away leaving behind a wrist watch, a letter and a diary, which were handed over to the police. Narender Singh, who is husband of younger sister of the deceased, also stated before the police during investigation that on 02.09.2004, at about 05:35 P.M., he received telephonic call from the mobile telephone of Sonia, but it was the appellant who was making the call. He told that he had killed Sonia. He also told that he had illicit relations with the wife of Narender Singh and that he i.e. the appellant, intended to commit suicide. One Virender Singh also stated during investigation that on 02.09.2004 at 05:08 P.M., he received telephonic call from mobile telephone of Sonia, but the appellant was making the call and told that he had murdered Sonia and he might commit suicide. On 09.09.2004, the appellant surrendered and was joined in investigation. After making disclosure statement Ex.P-18, the appellant got recovered mobile telephone of Sonia from one Sonu at Itarsi on 10.09.2004. The appellant declined to join test identification parade. The appellant also refused to give his specimen handwriting and signatures. Samples of his hair and blood were taken by Dr. O. P. Sethi. Scaled site plan of the place of occurrence was also got prepared. According to report of Forensic Science Laboratory Ex.P-8, blood was detected on blood stained earth and chunni seized from the spot, but blood could not be detected on hair, handkerchief and rope lifted from the spot and also on the nail clippings of the deceased. Blood was detected on clothes of the deceased, but no semen was detected thereon. Blood or semen also could not be detected on vaginal swabs. Hair recovered from the spot and sample hair of the appellant were found to be of human origin and were similar in most of their morphological and microscopical characteristics. Crl. Appeal No. 862-DB of 2006 6 On completion of investigation, appellant Rohtash Kumar was sent for trial. Charge under Sections 302 and 404 IPC was framed against the appellant. He pleaded not guilty and claimed trial. In support of its case, the prosecution examined 21 witnesses namely Sube Singh-complainant (PW-1), Jagatpal-attendant in Taneja Guest House (PW-2), Dhanpati-mother of the deceased (PW-3), Bimla (PW-8), who was working as Caretaker in the hostel, HC Raj Kumar (PW-11), Narender Singh-husband of younger sister of the deceased (PW-12) and Virender Singh-Agriculturist and a resident of Rohtak (PW-19) broadly stated according to the prosecution version narrated herein above. Dr. Virender Yadav (PW-4) stated about the post-mortem examination conducted by him on the body of the deceased. HC Suraj Bhan (PW-5) and Constable Rajbir (PW-7) being formal witnesses, tendered their affidavits in evidence. HC Basti Ram (PW-6) stated that on 02.09.2004, he delivered copies of special reports to the Area Magistrate and higher police officers. Mukesh Chand-Record Keeper from Sessions Court, Rohtak (PW-9) produced the record of divorce petition bearing HMA No.17 of 02.03.2004. Sharwan Kumar-Draftsman (PW-10) stated that he prepared scaled site plan of the place of occurrence. Inspector Prem Singh (PW-13) stated that he prepared report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) after completion of investigation. R. K. Singh, Nodal Officer of Bharti Televinchal (PW-14) proved the document Ex.P-21 regarding call details of mobile telephone of Sonia deceased. Raju Bhatia-Photographer (PW-15) proved the photographs Ex.P-22 to P-32 taken by him. Sanjeev (PW-16) stated about purchase of mobile phone by the deceased and proved cash memo Ex.P-44. Ms. Anita Dahiya, the then Chief Judicial Magistrate, Faridabad (PW-17) proved the documents Ex.P- 45 to Ex.P-50. ASI Kirori Mal (PW-18) stated that he had recorded formal Crl. Appeal No. 862-DB of 2006 7 FIR Ex.P-12. SI Vinod Kumar (PW-20) stated about the investigation of the case conducted by him. Dr. O. P. Sethi (PW-21) stated that samples of hair and blood of the appellant were taken by him. The accused in his examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that Sonia had performed love marriage with him against the wishes and consent of her parents, who were, therefore, extremely unhappy with the accused. Because of temperamental differences between the couple, they instituted mutual divorce petition under Section 13-B of the Hindu Marriage Act in Rohtak, which was fixed for second motion for 03.09.2004. The accused denied that he went to Faridabad to meet the deceased on 01.09.2004 or 02.09.2004. He did not know who strangulated Sonia. She was a free type of girl having connection with several persons and for this reason, somebody might have killed her and the appellant was falsely implicated by her parents. He denied having made telephonic calls to any relative of the deceased nor sent them any letter. He also stated that he never stayed in Taneja Guest House. The evidence was fabricated after detaining him illegally in the Police Station. Recovery of mobile telephone was also planted. No evidence was led by the appellant in his evidence. Learned Additional Sessions Judge, Faridabad vide impugned judgment dated 09.09.2006 and impugned order dated 12.09.2006 convicted and sentenced the appellant as already noticed herein above. Feeling aggrieved, the convict has preferred this appeal. We have heard learned counsel for the parties and carefully examined the case file with their assistance. Prosecution has led evidence of impeccable character to bring home the charge against the appellant beyond reasonable doubt. Although there is no eye-witness of the murder and the case is therefore based on Crl. Appeal No. 862-DB of 2006 8 circumstantial evidence, yet statement of Bimla (PW-8) is just like an eye- witness and very significant. She has categorically stated that the appellant had come to the hostel and met the deceased on 01.09.2004 and again on 02.09.2004, when the two remained together for quite some time. She even served tea to them. Thereafter, she went to bathroom and came after 20-25 minutes and in the meantime, the appellant had gone away and dead body of the deceased was discovered. She is thus a witness of having last seen the appellant with the deceased immediately before her death. The time gap was so small that the only inference that can be drawn is that it was the appellant and none else, who had murdered the deceased. Bimla (PW-8) is not only an independent witness, but also a natural witness. She was working as Caretaker in the hostel, where the murder was committed. She had no reason to depose falsely against the appellant or in favour of the prosecution. Veracity of her testimony could not be impeached in any manner in her lengthy cross-examination. She has fully withstood the test on the touchstone of cross-examination. There is also evidence of Jagatpal (PW-2), who is also an independent witness. He has stated that the appellant had stayed in the Guest House, where the witness was working as attendant, on 01.09.2004 and again on 02.09.2004, under the false name of Amit. However, the diary left behind by the appellant while fleeing away on 02.09.2004 after attempting to commit suicide after the occurrence, contained his real name Rohtash. Jagatpal identified the appellant in the dock during trial being the same person who had stayed in the Guest House. The statement of Jagatpal also, therefore, provides a very vital and important link in the chain of evidence. His statement was recorded by the police on 02.09.2004 itself. He is also an independent witness having no bias or prejudice either in favour of the prosecution or against the appellant. His testimony also could not be shaken in his lengthy cross-examination. Crl. Appeal No. 862-DB of 2006 9 Here, it would be significant to notice that both Jagatpal (PW-2) and Bimla (PW-8) identified the appellant in the Court. Their statements regarding identification of the appellant are reliable. They had ample time to see the appellant on 01.09.2004 and 02.09.2004. It is correct that Bimla (PW-8) did not see the appellant for sufficient time on 01.09.2004, but she saw him for sufficient time on 02.09.2004 as on that day, the appellant and the deceased remained together for quite some time and they even went outside the hostel and came back again and Bimla even served tea to them. Jagatpal saw the appellant on 01.09.2004 and 02.09.2004 for sufficiently long time and could easily identify him. Moreover, the police during investigation even wanted to conduct test identification parade of the appellant and for this purpose, on 09.09.2004, the date of surrender of the appellant, he was produced before Chief Judicial Magistrate, Faridabad along with application Ex. P-47. However, the appellant vide his statement Ex. P-45 declined to join identification parade without assigning any reason whatsoever for the same. Thereupon, Chief Judicial Magistrate passed order Ex. P-46. Ms. Anita Dahiya, the then Chief Judicial Magistrate, Faridabad has appeared in the witness-box as PW-17 and testified the aforesaid fact. Refusal of the appellant to join test identification parade gives rise to adverse inference against him. On account of appellant's refusal to join the test identification parade, prosecution was left with no option but to seek his identification by the witnesses in the Court and Jagatpal and Bimla, prosecution witnesses, identified the appellant in the Court. The appellant also left in diary in Guest House an undated letter Ex.P-55 addressed to different authorities including Hon'ble the Chief Justice of this Court expressing his grievance against family members of the deceased. There is also letter Ex.P-6 sent by the appellant to the complainant i.e. father of the deceased. Crl. Appeal No. 862-DB of 2006 10 The fact that the appellant stayed in the Guest House at Faridabad under a false name reveals his guilty intentions. Statement of Jagatpal (PW-2) also establishes the presence of the appellant in Faridabad at the relevant time. In addition to the aforesaid, the appellant after making disclosure statement got recovered the mobile telephone instrument of the deceased. Recovery of the said mobile telephone at the instance of the appellant is also a very material circumstance against the appellant. Perusal of call details of the said telephone Ex.P-21 reveals that even after the murder of Sonia, there were incoming and outgoing calls from the said telephone. This circumstance corroborates the statements of Dhanpati (PW-3), Narender Singh (PW-12) and Virender Singh (PW-19). Statements of these witnesses also prove that after committing the murder, the appellant disclosed (confessed) to these witnesses on telephone that he had murdered Sonia. It is correct that Dhanpati (PW-3) and Narender Singh (PW-12) are relatives of the deceased and Virender Singh (PW-19) is also known to the complainant. However, their statements cannot be discarded merely on account of the said relationship because their statements are corroborated by the telephone call details. Moreover, it is a case of sole accused. The relatives of the deceased would be most reluctant to allow the real culprit to go scot-free and to implicate the appellant falsely. The contention of appellant's counsel that parents of the deceased were not happy with the marriage of the deceased with the appellant being inter-caste marriage and therefore implicated the appellant falsely, cannot be accepted because the marriage was going to be dissolved on 03.09.2004 by mutual divorce as petition for the same was pending in the District Courts at Rohtak for 03.09.2004 (for the next day of the murder) for second motion. On the contrary, it is the appellant's own case that he was being pressurized to divorce the deceased and therefore, the appellant had the motive to Crl. Appeal No. 862-DB of 2006 11 eliminate her. Learned counsel for the appellant vehemently contended that it was a blind murder. The contention cannot be accepted because as noticed herein above, Bimla (PW-8) had gone away for 20-25 minutes only and in that short duration, the deceased was murdered. When Bimla went away, the appellant and the deceased only were present together and when Bimla came back, appellant had already left and dead body of the deceased was found lying. Learned counsel for the appellant argued that inmates of the hostel have not been examined as witnesses by the prosecution. However, this argument is also without substance because Bimla (PW-8) has stated in her cross-examination that none of the inmates was present in the hostel on 02.09.2004 when she had last seen the deceased with the appellant. Nobody also heard cries or shrieks of the deceased, probably because she was smothered as well as throttled. It appears that she was not allowed to cry by smothering her, although she appeared to have struggled and resisted because there were fractures of both clavicals and upper second and third ribs, in addition to fracture of thyroid cartilage and fracture of tracheal rings. Upper chest muscles and other muscles were also contused extensively. The deceased thus made struggle and put up resistance to save herself, but the appellant succeeded in killing her. In these circumstances, the contention of learned counsel for the appellant that the offence would at best fall under Section 304 IPC and not under Section 302 IPC, cannot be accepted. The contention was that the appellant had told the deceased on 01.09.2004 that he would reach the Court on 03.09.2004 to make statement for divorce and therefore, it appears that on 02.09.2004, something happened suddenly between the appellant and the deceased and on account thereof, the appellant might have killed the deceased. The contention is completely hypothetical and based on conjectures and surmises. Neither there is suggestion to this effect to any prosecution witness in cross- Crl. Appeal No. 862-DB of 2006 12 examination nor the appellant has taken any such plea in his statement under Section 313 Cr.P.C. nor there is any material on record to substantiate this contention. On the contrary, in addition to injuries resulting from smothering and throttling, there were many other fractures. It clearly demonstrates requisite knowledge and intention of the appellant to kill the deceased and the case clearly falls within the ambit of Section 302 IPC. Learned counsel for the appellant contended that the appellant had left the place after taking tea and therefore, somebody else might have killed the deceased thereafter. The argument is without substance because the time gap when the appellant left and when the dead body was discovered was so short that the conclusion is inescapable that it was the appellant and none else, who killed the deceased. Learned counsel for the appellant next contended that inspite of struggle put up by the deceased, no injury was found on the person of the appellant. The contention, although apparently attractive, is devoid of merit. The appellant surrendered and was arrested a week after the occurrence and by then, there might not have been any injury left on the person of the appellant, even if the appellant might have suffered some injury in the occurrence. Moreover, when the deceased was not even in a position to cry, she might not have been able to cause any injury to the appellant, although she tried to save herself. Learned counsel for the appellant also submitted that entire evidence has been fabricated. The submission is without any foundation or basis. As noticed herein above, Jagatpal (PW-2) and Bimla (PW-8), star witnesses of the prosecution, are both completely independent witnesses and there is not even a shred of material on record to doubt their statements in any manner. Their statements are corroborated by other evidence as discussed herein above. For the same reason, the contention that the Crl. Appeal No. 862-DB of 2006 13 appellant has been implicated on suspicion on account of his strained relations with family of the deceased due to inter-caste marriage between the two, also cannot be accepted. Learned counsel for the appellant also pointed out that the appellant had met the deceased on 01.09.2004 as well and if he intended to murder her, he could do so on 01.09.2004 also. The argument does not demolish the prosecution case in any manner. Possibly the appellant might not have got the opportunity to kill the deceased on 01.09.2004 or there might be some other reason, which could be known to the appellant only. Learned counsel for the appellant also pointed out that special report was received by the Magistrate on 07.09.2004 i.e. after delay of five days. The contention is devoid of merit. It is only a clerical error in writing the date as 07.09.2004 instead of 02.09.2004 by the Magistrate. There could not have been delay of five days in sending the report to the Magistrate. On the other hand, HC Basti Ram (PW-6) has categorically deposed that he delivered the special report to the Illaqa Magistrate on 02.09.2004 itself. The version contained in the FIR was also reiterated in the inquest report, which was with the doctor while conducting post-mortem examination on 03.09.2004. It is thus apparent that the FIR containing the version came into existence at the stated time and the special report also reached the Magistrate on 02.09.2004 at midnight. The FIR in this case was lodged promptly because the murder came to light at about 03:30 P.M. on 02.09.2004, as stated by Bimla in her cross-examination. The police as