Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision: February ,2011 1. Murder Reference No.4 of 2010 State of Punjab V. 1. Anita alias Arti wife of Rakesh Kumar, resident of Nanak Nagri, Moga. 2. Ravinder Singh alias Kaku son of Nirjit Singh resident of Mohalla Sodhian Wala, Purana Moga. 3. Ranjit Kumar Gupta, son of Vijay Kumar resident of Gali No.7, Beant Nagar, Moga 2. Criminal Appeal No.625-DB of 2010 Ranjit Kumar Gupta son of Vijay Kumar, resident of Gali No.7, Beant Nagar, Moga. V. State of Punjab 3. Criminal Appeal No.665-DB of 2010 Anita alias Arti wife of Rakesh Kumar, resident of Nanak Nagri Moga,District Moga. V. State of Punjab 4. Criminal Appeal No.861-DB of 2010 Ravinder Singh alias Kaku son of Nirjit Singh, resident of Mohalla Sodhian Wala, Purana District Moga. V. State of Punjab CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 2 Present: Mr.D.S.Pheruman, Advocate for the appellant in Criminal Appeal No.625-DB of 2010. Mr. Sanjeev Sharma,Advocate for the appellants in Criminal Appeal No.665-DB of 2010. Mr. Akshay Kumar Goyal, Advocate, Amicus curiae, in Criminal Appeal No.861-DB of 2010. Mr. K.D.S.Sidhu, Deputy Advocate General, Punjab for the respondent. Mr. N.S.Dandiwal,Advocate for the complainant. M.Jeyapaul,J. Three accused faced the trial for the offences of kidnaping, murder and criminal conspiracy. All the three accused were sentenced to death for the offences under Sections 120-B and 302 of the Indian Penal Code and rigorous imprisonment for 10 years and fine of Rs.5,000/- with usual default sentence for the offence under Section 364 of the Indian Penal Code. The trial Court has made murder reference for confirmation. Individual accused has filed separate criminal appeal. A-1 Anita alias Arti has preferred Criminal Appeal No.665-DB of 2010; A-2 Ravinder Singh alias Kaku has filed Criminal Appeal No.861-DB of 2010 and A-3 Ranjit Kumar Gupta has preferred Criminal Appeal No.625-DB of 2010. Prosecution version: 2. (a) PW5 Rakesh Kumar is the husband of A-1 Anita alias Arti. PW3 Rajesh Kumar is the brother of PW5 Rakesh Kumar. PW5 Rakesh Kumar is working in Nestle Factory at Moga. PW5 was blessed with two children, namely, Aman Kumar aged 11 years and Om aged 6 years through A-1 Anita. (b) Both the children used to go for tuition to the house of Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 3 PW2Veerpal Kaur which is located near the house of PW5. The tuition time was between 5.00 pm and 6.00 pm. ( c ) On 24.9.2009 at about 5.00 pm both Aman Kumar and Om reached the house of PW2 Veerrpal Kaur for tuition. At about 6.20 pm PW2 Veerpal Kaur left both Aman and Om near the house of PW5. At about 7.00 pm A-1 Anita informed PW5 over phone that the children did not return home after tuition. A-1 Anita also proceeded to the house of PW2 Veerpal Kaur at 7.55 pm to know the whereabout of her children. PW2 informed A-1 Anita that she had left her children near her house after the tuition was over. In the meantime PW5 reached home. PW5 and his wife the first accused, accompanied by the Municipal Councillor, Moga started searching for their children. Till about 9 pm on 24.9.2009, they could not get any information about the children. (d ) About three days prior to the occurrence there was a petty quarrel in which Ranjit Kumar Gupta A-3 and his wife wielded threat to the life of the children of PW5. Recalling the said incident in his mind, PW5 went along with A-1 Anita and the Municipal Councillor and lodged a complaint as to the missing of his both children. (e) A-2 Ravinder Singh alias Kaku had a mobile bearing sim card No.9781956918. Though A-2 was using that mobile, the sim card of the mobile was registered in the name of Satish Kumar. A-1 was using the mobile bearing sim card No. 9592851851 which was registered in the name of A-2. A-1 also used Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 4 another mobile bearing sim card No.9914505216, registered in the name of A-2 furnishing a different village address. PW16 Surjit Singh, is the Assistant Manager of Idea Cellular Limited Mohali. He having produced the call details of subscribers Ex.P41 to P44 has spoken about the above facts. (f) On the day of occurrence A-1 and A-2 had talked hours together right from 8.00 am to 7.30 pm. A-1 had exclusively used her mobile bearing sim card No.9914505216 given to her by A- 2, for the purpose of clandestinely contacting him. (g) PW6 Amarjit Singh was the farm servant of PW7 Gurnaib Singh. For a quite long time PW6 Amarjit Singh had been looking after the field of PW7. On 24.9.2009 at about 8.00 pm he having ploughed the field of PW7 proceeded to his house near the railway crossing in the field of PW9 Bhagwan Singh. He found A-2 Ravinder Singh and A-3 Ranjit Kumar Gupta along with two kids over there. Thereafter he proceeded to his house. (h) PW9 Bhagwan Singh went to the field at about 6.30 am on 25.9.2009. He found to his surprise dead bodies of two children in his field. He reported the matter to the police. (i) PW5 Rakesh Kumar having received the message that his two kids were lying dead near the railway crossing, proceeded along with his wife and others to the said place. PW5 could not withstand the agony of seeing his children lying dead and,therefore, he was brought back home. A formal first information report was registered on 25.9.2009 at 7.30 am. PW12 SI Subhash Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 5 Chander proceeded to the scene of occurrence and got the dead bodies identified by PW3 Rajesh Kumar. PW12 conducted inquest on the dead bodies of Aman Kumar and Om and recorded the statements under Section 175 Cr.P.C. One school bag of Aman Kumar containing books and geometry box was lifted from the spot. Two pairs of chappals also were recovered vide memo Ex.P5. The dead bodies of Aman and Om were sent to the Civil Hospital, Moga for post mortem examination. (k) PW4 Dr. Sanjiv Kumar Jain, Medical Officer attached to the Civil Hospital,Moga conducted the post mortem examination on the dead body of Om at 2.00 pm on 25.9.2009. He found the following injuries on the dead body of Om: 1. A groove round the neck at the level of thyroid cartilage was present with width of 2.5 cm on front and 3.5 cm on side prominent on front but absent on back of neck. Multiple abraded contusions were present at margin of groove. On dissection: Subcutaneous ecchymosis were present larynk and trachea contained blood groove was reddish brown. 2. Abraded contusions present on inner aspect of upper and lower lips on left side. Clotted blood was present. 3. Multiple abraded contusions present on left side of face and left mandible region. Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 6 (l) Thereafter he conducted post mortem examination on the dead body of Aman Kumar. He found the following injuries on his dead body: 1. A reddish brown groove round the neck at the level of thyroid cartilage was present with width of 3 cm Mark was absent on back. Multiple abraded contusions were present at margin of groove. On dissection: Subcutaneous ecchymosis were present beneath and margin of groove. Left thyroid cartilage as injured. Larynx and tracha contained blood. Lymph nodes above groove congested. 2. Lacerated wound 1.2 cm x 1 cm at level of hyoid bone in midline. Hyoid bone was normal. Clotted blood was present. 3. Multiple abraded contusions 6 in number present on right side of neck and face starting from angle of right mandible and going to right cheek. 4. Multiple abraded contusions present on inner aspect of both lips. Clotted blood was present. It is his opinion that Aman Kumar and Om had died due to asphyxia as a result of strangulation which was ante mortem and the same was sufficient to cause death in the ordinary course of nature. He has also opined that the death would have occasioned within 6 to 18 hours prior to post mortem examination. (m) PW13 Goverdhan Lal is the husband of Saroj Rani Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 7 who was the Municipal Commissioner, Moga. When he was present in his house on 26.9.2009 at about 8.30 pm, A-2 and A-3 came to his house and informed him that both of them had committed murder of the children of PW5 and A-1. They in fact requested him to produce them before the Police but PW13 advised both the accused to come on the next day but they had not returned. (n) On 27.9.2009 PW12 SI Subhash Chander raided the house of A-3 Ranjit Kumar Gupta and arrested him. On personal search he seized nokia mobile bearing sim card No.9779577457and another mobile bearing sim card No.9872537270 vide memo Ex.P26. Thereafter he proceeded to the house of A-2 Ravinder Singh and arrested him. On personal search he recovered Nokia mobile bearing sim card No.9781956918 vide memo Ex.P29 Thereafter he reached the house of A-1 Anita and arrested her. On personal search made by lady constable Sukhwinder Kaur, nokia mobile bearing sim cardNo.95921-85151 was recovered. (o) On 29.9.2009 A-3 Ranjit Kumar Gupta and A-2 Ravinder Singh suffered disclosure statements separately. Based on their disclosure statements a school bag and a rope concealed by them in the paddy field were recovered. Thereafter a mobile phone bearing sim card No.9914505216 was recovered from the house of A-1 Anita vide recovery memo Ex.P40. Constable Bahal Singh produced the call details of the above mobiles. Calls details of mobile phone recovered from A-2 was marked as MO26. The call details of mobile phone recovered from A-1 Anita was marked as MO27 and Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 8 the call details of mobile phone recovered from Ranjit Kumar Gupta was marked as MO28. Another call details of mobile phone recovered from A-1 Anita was marked as MO29. (p) After completing the investigation final report was laid as against all the accused. Defence set up through statement under Section 313 Cr.P.C. statements: A-1 Anita (q) She having found that her children had not come back home, she alerted her husband and enquired from PW2 Veerpal Kaur also. Based on the suspicion she and her husband had as against Sanju wife of A-3 Ranjit Kumar Gupta due to the quarrel about two days earlier to the occurrence, a complaint was given suspecting their role. For extraneous consideration and without any justification whatsoever, she was falsely and dishonestly framed as one of the accused. Nothing could be more cruel than the accusation that a mother killed her sons. She was ruined and rendered friendless and penniless. She was penalized without any culpabale conduct on her part. A-2 Ravinder Singh (r) He was not involved in the alleged offence. On 25.9.2009 he was very much present in his house. Later on he having been accompanied by Jagjit Singh, Deepak Kumar, Vinay Kumar etc. went to the Police Station City Moga. The Police took him into custody. The prosecution has come out with a totally Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 9 false story. He was involved based on misguided suspicion. Nothing was recovered from him. A-3 Ranjit Kumar Gupta: (s) A-1 Anita quarrelled with him and his wife Sanju over a domestic matter. On 24.9.2009 he had been to Karanpur Mandi to join the celebration of birth day of the child of his brother-in-law Surinder Kumar. On 26.9.2009 at about 1 a.m. the police party of Moga headed by Gurbhej Singh SI of CIA Staff, Moga visited the house of his brother-in-law Surjinder Kumar at Karanpur Mandi. The Police party took him into custody. They also took Nirmala Devi, Sanju and Monika Goyal and brought all of them to Karanpur Police Station. In the morning at about 9.20 am on 26.9.2009, the police party informed him that he was wanted in a case at City Moga Police Station. He was taken to CIA staff, Moga. The relevant entries relating to the arrival and departure of the police party from Police Station City Moga were recorded in the Daily Diary report maintained at Police Station, Karanpur. He was tortured and as a result of which he sustained fracture of his hip disk and neck of femur bone. On the basis of request made by him he was admitted to civil hospital Moga as per the direction of the Court. The extra judicial confession was fabricated. The mobile phone alleged to have been recovered does not belong to him. The disclosure statements also were fabricated by the police officials. The police had acted with extreme partiality and unfairness to tighten the knots around his neck. Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 10 Defence version: (t) DW1 Jagjit Singh would depose that A-2 Ravinder Singh was produced by him before the police as per the request made by him. DW2 HC Ram Singh attached to Karanpur Police Station having referred to the Daily Diary Report of Karanpur Police Station dated 26.9.2009 marked as Ex.D1 and Ex.D2 spoke to the factum of arrival of the police party from Moga along with A-3 Ranjit Kumar Gupta, Nirmal and Monka Goyal to Karanpur Police Station. DW3 Jugal Kishore belonging to Bhartiya Janta Party has deposed that on 26.9.2009 at about 1.30 am Surinder Goyal, Advocate came and informed him that his son Monik Goyal, his brother-in-law Ranjit Kumar and mother-in-law Nirmala Devi were taken by the Punjab Police forcibly. He proceeded to the Police Station along with him and found them present in the Police Station. The Police party of Moga was also present over there. It was informed that A-3 Ranjit Singh Gupta was required by City Moga Police Station Punjab in connection with FIR No.165 dated 25.9.2009. Ranjit Kumar Gupta along with two other persons were taken away by Moga Police. DW4 HC Kulwant Singh is working in CIA Staff Moga. He brought the DDR dated 25/26.9.2009 of CIA staff Moga. He has referred to the DDR details found in Ex.D3 and D4. Verdict of the trial Court: 3. The trial Court having relied upon the motive part of the case, the last scene theory, the extra judicial confession, the arrest of the accused and the recovery of material objects in the back ground Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 11 of the medical evidence rendered a verdict of conviction. Considering the fact that the very mother of the innocent children had been a part of the conspiracy along with A-2 and A-3 to murder the children, classified the case as rarest of rare cases and chose to give capital punishment of death to A-1 to A-3. Arguments on the side of appellants: 4. (a) The learned Counsel appearing for Anita alias Arti the first accused-appellant would submit that the material witnesses PW10 Krishan Lal who alleged to have seen A-1 handing over her two children to A-2, Ravinder Singh and A-3 Ranjit Kumar Gupta had turned hostile. Except the telephonic conversation alleged to have taken place between A-1 Anita and A-2 Ravinder Singh, there was no other material to establish that A-1 had any role in the murder of her children. Admittedly the sim card numbers of the mobile phones alleged to have been recovered from the possession of the first accused did not stand in her own name. The first accused was not named in the FIR. The fact that she was also in search of her children along with her husband would go to show that she had not participated in the occurrence. (b) The learned Counsel appearing for the second accused Ravinder Singh would submit that the motive against the second accused was not established. PW10 Krishan Lal had turned hospital. Therefore, the first limb of the last seen theory could not be established by the prosecution. PW6 Amarjit Singh was not known to A-2 and A-3. He had in fact participated during the course of Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 12 inquest conducted by PW12 SI Subhash Chander in the morning on 25.9.2009. He had allegedly reported to PW12 SI Subash Chander only by 9.00 pm on the said day about the spotting of A-2 and A-3 at the scene of occurrence. Therefore, his evidence cannot be relied upon by the Court of law. The alleged extra judicial confession given by A-2 to PW13 Goverdhan Lal appears to be very artificial. Based on such a weak piece of evidence, A-2 cannot be convicted in a case of blind murder. The fact that PW6 had seen the accused in the Police Station on 25.9.2009 itself would go to show that no extra judicial confession was given by A-2 to PW13. PW6 Amarjit Singh would state that he saw the bags at the scene of occurrence in the morning of 25.9.2009. Therefore the recovery part of the case of the prosecution does not inspire confidence. The evidence of PW16 Surjit Singh Assistant Manager, and PW17 Sunil Rana, the officials from the mobile company and the documents produced by them would not be admissible under Section 65-B of the Evidence Act. There is no material linking evidence to involve the second accused in this case. (c ) The learned Counsel appearing for the third accused would submit that A-3 has been implicated only on suspicion. The petty quarrel between third accused's wife and A-1 would not have culminated in the murder of two school going children. If the quarrel between the wife of third accused and A-1 is taken as a motive, there was no reason for A-1 to hand over the children to A-2 and A-3. A-3 has established by leading defence evidence that he was arrested Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 13 by the Police at 1.00 am on 26.9.2009 itself. Therefore, the whole case of the prosecution that he also gave extra judicial confession to PW13 Goverdhan Lal does not stand to reason. The arrest and the recovery of the material objects put forth as against the third accused cannot be accepted in the above facts and circumstances. There was no evidence to establish that the mobile phone stood in the name of third parties, was handed over to A-3 for use. Therefore, it is his submission that A-3 has been implicated falsely. Arguments on the side of the prosecution: 5. The Deputy Advocate General appearing for the State of Punjab would submit that the prosecution could establish that there was a motive for the murder. The call details produced relating to the phone used by A-1 and A-2 would go to establish that they had some intimacy which culminated in the murder. The last seen theory, the arrest of the accused, recovery of the material objects and the call details produced would go to establish that all the three accused having conspired to murder the children of PW5, kidnapped them and committed the murder. Discussion 6. Homicidal death: The dead bodies of Aman Kumar and Om were identified by PW3 Rajesh Kumar who is none other than the brother of PW5 Rakesh Kumar,complainant. P.W.4 Dr. Sanjiv Kumar Jain has conducted post mortem examination on the dead bodies of Aman Kumar and Om on 25.9.2009. Considering the nature of injuries found around the neck except the back portion Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 14 thereof, on the dead bodies of both the children, he has opined that both of them had died due to asphyxia, as a result of strangulation which was ante mortem and the same was sufficient to cause death in the ordinary course of nature. The above medical evidence would establish clinchingly that Aman Kumar and Om had died a violent homicidal death. Now we will have to analyze in depth the materials produced by the prosecution to find out the real culprits who actually caused the homicidal death of Aman Kumar and Om. Motive: 7. PW5 Rakesh Kumar the unfortunate father of the deceased children Aman Kumar and Om would depose that the third accused and his wife Sanju picked up a quarrel with his wife and they in fact warned the first accused with dire consequences qua her children. What actually was the petty quarrel between the families of the third accused and the first accused was not brought forth by the prosecution. A-3 in his statement under Section 313 Cr.P.C. would admit that there was a quarrel over some domestic problem between his family and the first accused. Therefore the fact remains that there was some quarrel two or three days prior to the occurrence between the families of the third accused and the first accused. The prosecution has come out with a case that it was the first accused who in fact had handed over her children Aman Kumar and Om to A- 2 and A-3 for the purpose of murdering them. If at all A-3 had decided to do away with the life of Aman Kumar and Om as per the alleged threat he and his wife has wielded earlier, there was no Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 15 reason for the first accused to hand over her children meekly to A-2 and A-3 to cause the death of her children. Therefore, the suspicion thatconfronted the mind of A-1 and PW5 at the time when they lodged the complaint appears to be ill-founded. Further the petty quarrel between the families of A-3 and A-1 would not have culminated in such a cruel murder of two young children. Therefore the story of the prosecution that the petty quarrel that took place between A-3 and A-1 ghastly two or three days earlier to the occurrence had culminated in such a ghostly occurrence does not stand to reason. 8. We thoroughly scanned the call details produced by PW16 Surjit Singh, Assistant Manager of the Idea Cellular Limited Mohali and PW17 Sunil Rana Nodal Officer, Byharti Airtel Limited, The prosecution could establish on the basis of recovery made from the first accused Anita and the second accused Ravinder Singh immediately after their arrest that a mobile set bearing sim card No.9914505216 obtained in the name of second accused Ravinder Singh was entrusted confidentially to A-1 Anita for exclusive interaction only with him and the mobile set bearing sim card No.9781956918 was kept by A-2 Ravinder Singh for his personal use. The call details found from serial No.259 to 284 in Ex.P44 would go to establish that except a small fraction of break A-1 Anita and A-2 Ravinder Singh had been chatting together for hours together on the fateful day i.e. on 24.9.2009. Though there is no direct evidence to establish that A-1 and A-2 had developed illicit Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 16 intimacy, the aforesaid call details of the mobile gifted exclusively by the second accused to the first accused and the mobile details of the mobile set kept for personal use by second accused would go to show that they had an abnormal close intimacy. Unless they had been in madly love with each other such a chatting for hours together i.e. almost the whole day