Criminal Appeal No.61-DB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.61-DB of 1998 Date of decision: March 05 ,2008 1. Vipan Kumar son of Ram 2. Ram Lal son of Roshan Lal, residents of Kesar Ganj Road,Ludhiana. 3. Amarjit Singh son of Didar Singh, resident of 151, Salem Tabri,Ludhiana ...................................appellants. Versus State of Punjab ................................respondent. CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE SHAM SUNDER Present: Mr.Vinod Ghai and Mr. S.S.Rana,Advocates for the appellants. Mr. V.K.Jindal,Addl. Advocate General, Punjab for the respondent. Sham Sunder,J. This appeal is directed against the judgment of conviction and the order of sentence dated 9.1.1998, rendered by the Court of Sessions, Ludhiana, vide which it convicted accused, Ram Lal, for the offence, punishable under Section 120-B of the Indian Penal Code, and sentenced him to undergo imprisonment for life and to pay fine of Rs.500/-. In default of payment of fine, to undergo further rigorous imprisonment for three months; whereas it convicted accused Amarjit Singh and Vipan Kumar for the offence punishable under Section 302 read with Section 120-B I.P.C. and sentenced them to undergo imprisonment for life each, and to pay fine Criminal Appeal No.61-DB of 1998 2 of Rs.1000/- each. In default of payment of fine, to undergo further R.I. for six months each. 2. The law was, set in motion, by Amar Singh (PW2) on 27.7.1995, while making his statement Ex.PB, to the effect, that on that day at about 9.30 a.m., when he and Malkiat Singh were going towards the fields in the area of Laton Joga and reached near the 'Bajra' field of Malkiat Singh, they found the dead-body of a female, aged about 40 years, lying with injuries, on the same. After informing the Sarpanch, Amar Singh proceeded to the Police Station and when he reached Bhaini Sahib Chowk, S.I. Kuldip Singh (PW10) met him, before whom, he made the aforesaid statement. The statement was sent to the Police Station Sahnewal, on the basis whereof, FIR Ex.PB/2 was recorded. 3. Thereafter S.I. Kuldip Singh (PW10) went to the place, where the dead body was lying. Inquest report, Ex.PE, of the dead-body was prepared. Visual site plan, Ex.PG, of the place where the dead-body was lying, was also prepared. Photographs of the dead body were got taken. The dead-body was sent for post mortem examination, through Constable Manjit Singh. Thereafter, the investigation of this case, was taken over by S.I. Balbir Singh (PW13). Post mortem examination on the dead-body was performed by a board of doctors, consisting of Dr. U.S. Sooch (PW3), Dr.P.S.Sidhu and Dr. Mrs. Jagdish Sidhu. 4. During the course of investigation, the facts which emerged, were that Vipan Kumar and Ram Lal, accused, who are father and son, were running a factory, under the name and style of “ Khanna Metal Works”. Reeta (deceased) had been employed with the accused for the last 1-1/2 years, prior to her death. Some times, she used to be late, in coming back to her house, from her duty. In that situation, Vipan Kumar, accused, used to drop her, at her house, in the car. She attended her duty on 24.7.1995. On the next day, that is, 25.7.1995, she left the house for Criminal Appeal No.61-DB of 1998 3 going to the factory, as usual. It further came to light during investigation that Reeta had conceived, as a result of illicit relations, with Vipan Kumar, accused. At about 9/10 a.m., on 25.7.1995, all the accused and Reeta, were present, at the milk bar, near Clock Tower Chowk, Ludhiana. Ram Lal,accused, reprimanded his son Vipan Kumar, accused, that due to his illicit relations, with Reeta, she had conceived. He complained that the conduct of Vipan Kumar had brought disgrace to the family. He told Vipan Kumar, accused, that he should take Reeta for abortion.Vipan Kumar, accused, also asked Reeta to accompany him, to a doctor, for getting the pregnancy aborted, but she was not ready to do so. Ram Lal, accused, asked his son to get the matter finished, on that very day, and keep contact with him. Their conversation was over-heard by Ashok Kumar (PW9) and Vinod Kumar (PW12). Reeta was taken forcibly by Vipan Kumar and Amarjit Singh, accused, in Maruti Car No.PB-10L-4200, which was registered in the name of M/s.J.K. Investment Company, and actually belonged to Ram Lal and Vipan Kumar, accused. Since Reeta was taken forcibly, in the said car, and without her consent, by Vipan Kumar and Amarjit Singh, accused, she continued raising shrieks. At about 2 p.m., the car, aforesaid, reached Katani Tower on Ludhiana-Chndigarh Road, where a police party headed by ASI Jaswinder Singh (PW8) had held ambush. ASI Jaswinder Singh signalled the car to stop, but the car did not stop and went ahead towards Ludhiana side. ASI Jaswinder Singh noted the registration number of the Car, as PB-10L-4200, and flashed a wireless message to Police Post Katani, Police Station, Sahnewal, and Police Post Ramgarh. However, it was reported that the said car had not gone to any of those sides. ASI Jaswinder Singh learnt that the car had gone towards village Laton Joga, the place where the dead-body was found by Amar Singh on 27.7.1995. Village Laton Joga, is in between villages Katani and Kohara. Criminal Appeal No.61-DB of 1998 4 5. After taking over the investigation, S.I. Balbir Singh took into possession a watch Ex.P1, shirt Ex.P2, salwar Ex.P3 and Chunni (Dupatta) Ex.P4, which were produced before him, by Constable Manjit Singh, after post mortem of the dead-body,referred to above. These articles belonged to the deceased, and were retained for identification, at the appropriate stage. Constable Manjit Singh also produced before S.I. Balbir Singh, ten vials sealed with the seals, bearing impression 'USS', which were handed over to him, by the doctor. The photographs were also taken into possession. 6. Since Reeta did not return home on 25.7.1995, her brother Rakesh Kumar (PW5), along with his mother, went to the factory of Vipan Kumar and Ram Lal,accused. The factory was closed. They went to the house of the accused. The accused told them that Reeta had not come to their factory on that day. Enquiries about her whereabouts from other sources, did not yield any result. On 28.7.1995, Rakesh Kumar lodged a missing report,Ex,PF, of Reeta, at Police Station Kotwali, Ludhiana, vide DDR No.14 dated 28.7.1995. On 2.8.1995, Ashok Kumar (PW9), while, on his way to Kesar Ganj,Ludhiana found a gathering, at that place. The police had displayed a photograph of a lady and was asking for its identification. Ashok Kumar identified the photograph as that of Reeta. On 3.8.1995, Rakesh Kumar (PW5),learnt that an unidentified dead-body was recovered, by the Police of Police Station Sahnewal. Accompanied by Rakesh Sood and Mohan Lal Chadda, he went to Police Station Sahnewal and identified from the photographs and the belongings of the deceased, i.e., watch Ex.P1, and the clothes Ex.P2 to Ex.P4, that the dead-body was of his sister Reeta. 7. The accused, filed an application dated 27.7.1995, for anticipatory bail. However, Vipan Kumar and Amarjit Singh surrendered in the Court on 9.8.1995. They were arrested. On 10.8.1995, Vipan Kumar accused, was Criminal Appeal No.61-DB of 1998 5 interrogated, in response to which, he made a disclosure statement that he had concealed a lady purse, a chain and a pair of chappals, in the bushes, close to a 'kacha passage' leading to Bhaini Sahib and offered to get the same recovered, by pointing out. His disclosure statement Ex.PM was recorded. He led the police party to the place of concealment, and got recovered a purse containing currency notes of Rs.40/-, a silver chain with 'Locket' and the chappals, which were taken into possession vide memo Ex.PM/1. He also got recovered Maruti Car No.PB-10L-4200, from the Stand, at Railway Station, Ludhiana, which was taken into possession vide memo Ex.PN. The Registration Certificate and the Insurance Policy of the car were also taken into possession. On 21.9.1995, Ram Lal accused, produced receipt Ex.P19, regarding the purchase of car aforesaid. After coming to the conclusion, that the murder of Reeta had been committed, by the accused, in pursuance of criminal conspiracy, and after the completion of investigation, the challan was presented, in the Court. 8. On their appearance, in the Court of the committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, Charge under Section 120-B IPC against all the accused and under Section 302 read with Section 120-B IPC, against Vipan Kumar and Amarjit Singh, accused, was framed. It was read over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 9. The prosecution, in support of its case examined, Sher Singh Patwari (PW1), Amar Singh (PW2), Dr. U.S.Sooch (PW3), Balbir Singh (PW4), Rakesh Kumar (PW5), Kanwal Dev Sharma (PW6), SI Gurdial Singh (PW7), ASI Jaswinder Singh (PW8), Ashok Kumar (PW9), SI Kuldip Singh (PW10), Darshan Singh, Ahlmad (PW11), Vinod Kumar (PW12), S.I. Balbir Singh (PW13) and Constable Manjit Singh (PW14), Thereafter, the prosecution closed its evidence. Criminal Appeal No.61-DB of 1998 6 10. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances appearing against them in the prosecution evidence. They pleaded false implication. They stated that they were involved in the instant case on misguided suspicion. The accused,however, did not lead any evidence in defence. 11. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused,as stated hereinbefore. 12. Feeling aggrieved, the instant appeal, was filed by the appellants/accused. 13. We have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 14. The Counsel for the appellants, at the very out-set, submitted that the case of the prosecution, being based on circumstantial evidence, it was required to prove the same, beyond a reasonable doubt, so as to link the accused with the instant case. They further contended that the prosecution failed to, prove its case, by leading cogent and convincing circumstantial evidence. It was further contended that Reeta was not having any illicit relations with Vipan Kumar nor was she last seen with him and his co-accused Ram Lal and Amarjit at Clock Tower Chowk,Ludhiana. They further contended that the circumstance of “last seen” was fabricated by the prosecution, so as to connect the accused with the present case. It was further contended that the evidence of Ashok Kumar (PW9) of last seen was most improbable, and unnatural. It was further contended that Ashok Kumar, being related to the deceased, was also interested. He further contended that even in Ex.PF, the report lodged by Rakesh Kumar, brother of the deceased, he did not raise a finger of suspicion, against the accused but on the other hand, stated that he did Criminal Appeal No.61-DB of 1998 7 not suspect anybody. It was further contended that no reliable evidence of conspiracy, was produced, by the prosecution. It was also contended that the evidence of ASI Jaswinder Singh was most improbable, as he did not chase the car, in which, he saw a lady crying when the same passed by the site of ambush held by him. It was also contended that the car, in question, did not belong to Vipan Kumar, accused but to “J.K. Investment Company”. It was also contended that the Insurance Policy, which was allegedly, in the name of “Vipan Kumar”, was not proved. It was also contended that even the recoveries were planted, against the accused, as there was no mark of identification, on the said articles. It was also contended that Vinod Kumar, an independent witness of last seen,however, did not support the case of the prosecution. It was also contended that the trial Court recorded conviction and awarded sentence merely on conjectures and surmises. 15. On the contrary, the Counsel for the respondent, contended that the prosecution, led cogent and convincing circumstantial evidence, to prove that all the accused conspired together to commit the murder of Reeta, deceased, who was working in the factory of Vipan Kumar, and Ram Lal, accused, and with whom, he ( Vipan Kumar ) was having illicit relations, because of which she was carrying advanced pregnancy. He further contended that there was a strong motive, with the accused, to commit the murder of the deceased, as they wanted to get rid of her, as it was not possible to abort the foetus, at an advanced stage, being carried by her, in her womb, as a result of the illicit relations, with Vipan Kumar. He also contended that Ashok Kumar(PW9) is not related to the deceased, and the evidence of the Investigation Officer, in that regard, was not based on any material. He further contended that the evidence of ASI Jaswinder Singh, and other witnesses, was most probable and natural. He further contended that the trial Court was right in recording conviction and Criminal Appeal No.61-DB of 1998 8 awarding sentence to the accused. 16. .The case of the prosecution, is based on circumstantial evidence. When a case is based, on circumstantial evidence, the Court is bound to be extra cautious, because the circumstantial evidence, has its own limitations. Before acting, on that evidence, the Court must first see, whether the circumstances, put forward, are satisfactorily proved, and whether the proved circumstances, are sufficient to bring home satisfactorily, the guilt to the accused. The established circumstances, must not only be consistent with the guilt of the accused, but, at the same time, they must be inconsistent with his innocence. While appreciating the circumstantial evidence, the Court should not view, in isolation, the various circumstances. On the other hand, it is necessary to take an overall view of the matter, but without substituting conjectures for legal inferences. Incompatibility with innocence, besides compatibility with guilt, is called for, in such cases, because incriminating circumstances, can also be introduced, during the investigation, and it is a matter of common knowledge, that at times, they are falsely introduced, by way of padding, by the investigating Agency. The acid tests, laid down, by the Hon'ble Apex Court in Gambir V. State of Maharashtra, AIR 1982 (Supreme Court) 1157, Tarsem Kumar V. Delhi Administration, 1994(3) Recent Criminal Reports 587 (Supreme Court) and Sharad Birdhichand Sarda V. State of Maharashtra, 1984 CAR 263 (Supreme Court), for basing conviction, on the strength of circumstantial evidence alone, are enumerated as under : 1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established: 2. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; Criminal Appeal No.61-DB of 1998 9 3. The circumstances, taken cumulatively should from a chain, so complete, that there is no escape, from the conclusion, that within all human probabilities, the crime was committed by the accused and none else; and 4. The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis, than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.” 17. The motive plays a very vital role, in a case, which is solely based, on circumstantial evidence. In the instant case, the motive for the commission of the murder of Reeta, now deceased, was proved beyond a reasonable doubt,by the prosecution, as would be discussed hereinafter. From the evidence of Rakesh Kumar (PW5), real brother of Reeta,deceased, it was proved that the deceased, his unmarried younger sister had been employed with Vipan Kumar and Ram Lal,accused, in their factory known as “Khanna Metal Works” for the last 1-1/2 years before 28.7.1995. From the medical evidence provided by Dr.U.S.Sooch (PW3), a member of the Board of Doctors, which conducted post mortem examination, on the dead-body of Reeta, which was originally unidentified, but later on identified, described the condition thereof as under : “ The length of the body was 5'-3” and there was ligature mark half inch in width, encircling around the neck, except in its posterior part of the neck, 1” in length. The ligature mark was placed horizontly, just above the thyroid cartilage. On dissection of the neck, there was dark colour echhymosis in the sub-cutaneous tissue and the muscles. The under-neath thyroid bone was fractured Criminal Appeal No.61-DB of 1998 10 and the under-neath tracheal rings were also ruptured. The dead body was putrified, swollen, wearing kamij, bra, salwar, Chunni and Allvan make wrist-watch. The hair roots of scalp, were stained with hinna. The face was congested. The nails of hands and feet,were long, partially polished and were cyanosed. There was greenished discolouration of skin of the abdomen and the chest, with blister formation. The post-mortem staining was still partially present on the anterior surface both lower legs. The eyes and tongue were protuding out.On opening the salwar, the uterus was found collapsed and ruptured. A dead male baby along with cord and partial placenta was also found. There were marks of insect bites on the body. The skin of the finger tips of all the fingers and toes were taken and sealed in ten vials, each bearing one seal with impression 'USS'. The maggots were also present on the dead-body, which was also foul smelling. The heart contained blood and the stomach was early putrefied and contained 100 cc of fluids. The uterus was prolapsed and post-mortem rupture of the uterus with full term dead male baby, with cord at partial placenta were lying outside the uterus and the baby was also partially putrefied. The length of the baby was 18” and the head circumference was 11”. The other viscera showed early putrification.” According to the doctor, the cause of death, in this case was asphyxia, due to strangulation, which was sufficient to cause death, in the ordinary course of nature. The injuries were ante mortem, in nature. From the evidence of the doctor, it was proved, that the uterus was prolapsed, and Criminal Appeal No.61-DB of 1998 11 the post-mortem rupture of the uterus with full term dead male baby, with cord and partial placonta were lying outside the uterus and the baby was also partially putrefied. The length of the baby was 18”. A question then arises, as whose male baby Reeta deceased, was carrying in her womb. The evidence of Ashok Kumar (PW9), in this regard, is very material. From his evidence, it was proved that on 25.7.1995, at about 9-10 am, when he was present near Clock Tower Chowk, Ludhiana, he saw accused, Amarjit Singh,standing with Vipan Kumar Khanna, Ram Lal,accused and Reeta, deceased. According to him, they were already known to him. Ram Lal was quarrelling with his son,Vipan Kumar, accused, on account of the reason, that he was having illicit relations, with deceased,Reeta. He was telling him that as a result of illicit relations, she had conceived. He was aksing him, to take her for abortion. He was also asking him, to get the matter finished on that very day, and keep contact with him. When Vipan Kumar asked her ( Reeta deceased) to accompany him to a doctor, for getting the pregnancy aborted, she was not agreeable. Ashok Kumar,PW9, had no ill- will, grudge, or enmity against the accused. He, clearly heard, as to what talks were exchanged between Vipan Kumar and his father. From his evidence, it was ,therefore, proved that Reeta conceived, as a result of her illicit relations, with Vipan Kumar, accused. Since from the medical evidence, it was proved that Reeta, was carrying a full term dead male baby,on account of such conception, the abortion could not take place, at that advanced stage. On account of this reason, Ram Lal,father of Vipan Kumar,was asking him, to finish the matter, on that very day, and keep contact with him. Since there were illicit relations between Vipan Kumar accused and Reeta, deceased, and she was having a full term dead 'male' baby, in her womb on account of such illicit relations, there was a strong motive with all the accused, to put an end to her life, so as to save Vipan Kumar of legal consequences, which may have followed, after the delivery Criminal Appeal No.61-DB of 1998 12 of child as he could certainly lay a claim to his property. Not only this, since there was a wide difference of status, between the two families, Vipan Kumar, would have never agreed to perform marriage with Reeta, and in that event, delivery of his child by Reeta, would have brought a lot of disgrace to his family, as such a child is known as 'bastard' in our society. The motive was, thus, duly proved through cogent and convincing evidence, by the prosecution, for the commission of offence. 18. No doubt, Rakesh Kumar, PW5, brother of the deceased, when he lodged the report Ex.PF on 28.7.1995, did not state, that his sister Reeta, who was unmarried, was having illicit relations with Vipan Kumar, or was carrying advanced pregnancy. He, no doubt, stated, in the said report regarding the disappearance of the deceased. It appears that Rakesh Kumar, brother of the deceased, did not want to bring disgrace to their family, by narrating such facts, in the report Ex.PF, though he must be aware that she was in advanced stage of pregnancy, on account of her illicit relations, with Vipan Kumar, accused. Even by that time, the things had not become clear, as to whether the accused had taken her away, and had committed her murder or had concealed her somewhere.. Since the honour of the family, was dear to Rakesh Kumar, he did not make the things public in report Ex.PF. It was, under these circumstances, that he withheld this very sensitive information in the report Ex.PF. Under these circumstances, the mere fact that Rakesh Kumar,PW5, did not state in Ex.PF, report lodged by him, regarding the disappearance of his sister, Reeta, that she was having illicit relations with Vipan Kumar, and was in advanced stage of pregnancy, on account of that reason, did not make his evidence, in any way, unbelievable. In this view of the matter, the submission of the Counsel for the appellants, that Vipan Kumar, was not having illicit relations with Reeta nor she was carrying his pregnancy, being without merit, must fail, and the same stands rejected. Criminal Appeal No.61-DB of 1998 13 19. The evidence of Ashok Kumar(PW9), who over-heard, the accused at Clock Tower Chowk, Ludhiana,while exchanging talks, as mentioned hereinbefore, was also criticised by the Counsel for the appellants, on the ground that it was all a staged managed affair. No doubt, Ashok Kumar,PW9,after overhearing the talks, aforesaid, between the accused, on 25.7.1995 at about 9/10 am at Clock Tower Chowk,Ludhiana, did not report the matter to the police or the relation of Reeta, deceased immediately. He, ultimately, reported the matter to the police, with regard to the same on 2.8.1995. He had,however, an explanation to offer, in that regard. According to him, he had gone to Jalandhar and returned therefrom on 31.7.1995. Thereafter, he got recorded his statement dated 2.8.1995 narrating therein, as to how he saw the accused exchanging talks between them, that on account of illicit relations, between Vipan Kumar, accused and Reeta deceased, she had conceived and the pregnancy be got aborted, and that Ram Lal , father of Vipan Kumar was also saying him that the matter be finished on that day itself and he should keep contact with him. Since, the talk was with regard to abortion, Ashok Kumar (PW9) did not take the same seriously, but, on the other hand treated it lightly. It was, under these circumstances, that he did not think it necessary to report the matter to the Police and