IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-D 511—DB of 1999 Date of decision: 20.09.2011 Suresh Kumar …..Appellant versus State of Haryana ……Respondent CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mrs.Justice Sabina Present: Mr.D.S.Brar, Advocate for the appellant Mr.S.S.Randhawa, Addl.A.G. Punjab Jasbir Singh, J. Appellant-Suresh Kumar and his co-accused, namely, Baljinder Singh @ Bhola were convicvted for commission of offences under Sections 302, 364, 201/34 IPC, on 15.10.1998. Vide order of the even date, they were sentenced to undergo life imprisonment for committing an offence under Section 302/34 IPC and ten years RI for an offence under Section 364 IPC were also imposed a fine of Rs.10,000/- with a default clause and seven years sentence for commission of an offence under Section 201 read with section 34 IPC were also ordered to pay a fine of Rs.10,000/- with a default clause. The appellant has impugned the above judgment and order. It was accusation against him and his co-accused that they had committed murder of two children, namely, Baljinder Singh @ Rinku aged 11 years and Pardeep Kumar @ Bittu aged 9 years on 6.10.1997. FIR bearing No.338 (Ex.PD) was recorded against the appellant and his co-accused on 9.10.1997 on a statement made by Malkiat CRA-D 511—DB of 1999 Singh-PW5 (father of Baljinder Singh @ Rinku). Case of the prosecution, is disclosed in paragraph Nos.2 and 3 of the judgment under challenge, which reads thus:- “2. The facts and circumstances which led to tragedy of murder of two boys are very short and simple and are not uncommon. Baljinder deceased was son of Malkiat Singh (PW5). The boy lived in village Kot Kachwa Kalan, with his parents and was a student of class 5th. Pardeep was daughter’s son of Siri Chand. He was a student in the same village also of class 4th. Both the boys i.e. Baljinder and Pardeep were good friends. They used to go to a temple known as ‘Devi Ka Mandir’ to perform prayer (Arti) in the evening. As usual, they had gone in the evening on 6.10.1997 and were also seen near a culvert by one Ram Lubhaya but they did not return home. There was a search for these boys but it did not yield any result except that on 9.10.1997 the witnesses namely Malkiat Singh (PW5) and Amar Singh (PW6) came across Shri Darshan Pal Singh, Sub Inspector Police (PW9) when he was present near bus stand. Shahpur Malkiat Singh (PW5) made statement before the SHO/Sub Inspector Darshan Pal Singh (PW-9) Ex.PE and he reported the matter as such and when they proceeded towards villager Kot Kacwa, they stopped the vehicle near ‘Guga Mari’ a place on the way of Kot Kachwa and these two witnesses pointed out towards the two accused one of them is also known as Baljinder Singh alias Babla aged 18 years and Suresh Kumar aged 25 years who were going on the road side. As they were suspected to 2 CRA-D 511—DB of 1999 have committed the offence both of them were taken into custody by the police. 3. Both these persons were interrogated while in custody and Baljinder Singh alias Babla accused made disclosure statement Ex.PF and he claimed that the dead bodies of both the boys Baljinder and Pardeep were lying in a well in the area of village Dhaneora nearby which he could get recovered. Similarly, a statement was made by Suresh Kumar other accused which is Ex.PG and he too confirmed that the dead bodies of the said two boys were lying in the well. As a consequence thereof naturally the police party was led to village Dhaneora. Mam Chand PW-7 in the presence of Malkiat Singh (PW-5), Gajjan Singh, Naib Singh, Dharamvir and others took out the dead bodies from the well with the help of a wooden ladder which was adjusted into the said well with the help of a rope. Both the dead bodies were taken into possession vide memo Ex.PH. The dead bodies were identified by Malkiat Singh (PW-5) father of Baljinder deceased and Mam Chand (PW7) real maternal uncle of Pardeep deceased. A large number of persons from the village had been attracted to the scene when the dead bodies were taken out of the well.” Initially, an FIR (Ex.PD) was recorded for commission of an offence under Section 364/34 IPC, however, on recovery of the dead bodies, offence under Section 302/201 IPC was also added in the FIR. After recovery of the dead bodies, investigating officer Darshan Singh, SI (PW9) prepared inquest report and got the post-mortem conducted, which was done by Dr.R.C.Jindal (PW1) on 10.10.1997. It was opined that the death has 3 CRA-D 511—DB of 1999 occurred due to asphyxia resulting from smothering which was stated to be sufficient to cause death in an ordinary course of nature. Fracture of septum and nasal bone with haemotoma was found on the person of Baljinder alias Rinku. There was bluish congestion on the face of Pardeep. There was collection of blood in soft tissues of lips and cheeks. Both the dead bodies were found to be smeared with mud. The dead bodies were recovered from a well. On completion of investigation, final report was put in Court. Appellant and his co-accused were charge sheeted to which they pleaded not guilty and claimed trial. Prosecution produced as many as nine witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the appellant and his co-accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, they denied it, claimed false implication. However, they led no evidence in defence. The trial Court after appreciating evidence on record, convicted and sentenced them as mentioned in earlier part of this order. It is an admitted fact that co-accused, namely, Baljinder @ Bhola filed Crl.Appeal No.773-DB of 2002, which came up for consideration before a Division bench of this Court and was dismissed on 5.10.2005. Relevant part of the judgment reads thus:- “It has come in evidence that the well from where the bodies were found, had no water. Deceased, on falling in well, which is only 15 feet deep, could not have died. Dr.R.C.Jindal (PW1) has categorically stated in his opinion that the death was due to asphyxia resulting from smothering, which was sufficient to cause death in the ordinary course of nature. This smothering was due to some cloth or hand being put on mouth and nose of both the deceased. They were children of tender 4 CRA-D 511—DB of 1999 age, while the appellant Baljinder Singh @ Babla and his co- accused Suresh Kumar, being 18 and 25 years respectively, were fully grown up boys. Deceased did not have any chance of freeing themselves from the clutches of appellant and his co- accused Suresh Kumar.” Counsel for the appellant Mr.D.S.Brar has vehemently contended that the chain of the circumstances is loose and is not so connected, which may indicate towards guilt of the appellant-accused. He further contended that the medical evidence does not corroborate the ocular version given by the prosecution witnesses and an attempt has been made to say that death of the children had occurred on account of an accidental fall in the well. He prayed that appeal be allowed and appellant be acquitted of the charges framed against him. Counsel for the State Mr.S.S.Randhawa, Addl.A.G. Haryana, by making reference to the evidence on record, especially, statement made by the independent witnesses, argued that the guilt of the appellant-accused is proved on record. He further submitted that on the same set evidence, Baljinder Singh @ Bhola a co-accused was convicted and sentenced vide judgment under challenge and the judgment was upheld by a Division Bench of this Court on 5.10.2005. As per facts on record cause of occurrence is stated to be that Baljinder accused has joined as seeri with Malkiat Singh (PW5). He was engaged for a period of 11 months, whereas he worked only for a month. On account of that he was to return an amount of Rs.4000/- to said Malkiat Singh. When that amount was demanded, offence in question was committed. In this case, Malkiat Singh (PW5) has fully supported version of the prosecution. He has specifically stated that when both the children did not return on 6.10.1997, he tried to search them and when failed, he 5 CRA-D 511—DB of 1999 reported the incident to the police on 9.10.1997. Both the accused were arrested at the instance of Malkiat Singh (PW5). On interrogation, they made disclosure statements (Ex.PF and Ex.PG), which led to the recovery of the dead bodies from a well. The manner, in which, dead bodies were recovered has vividly been described by Malkiat Singh (PW5). Case of the prosecution has also been corroborated by Amar Singh (PW6), who is a Lambardar of the village. He has narrated as to how appellant and his co- accused were arrested and factum of disclosure statement made by them, which led to recovery of dead bodies. PW7 Mam Chand, who had identified dead bodies of both the children, has specifically stated that dead bodies were recovered at the instance of the appellant and his co-accused. Lengthy cross-examination of the above witnesses has failed to extract anything beneficial to the appellant and his co-accused. Appellant has failed to show any enmity with Malkiat Singh (PW5) or anybody else, which may be the reason to implicate him falsely in this case. Despite opportunity given, no evidence was led in defence. Furthermore, on the same set of evidence, conviction and sentence awarded to the co-accused, namely, Baljinder @ Bhola has become final. There is sufficient evidence on record to connect the appellant- accused with the commission of murder. In view of facts mentioned above, no case is made out for interference. Dismissed. (Jasbir Singh) Judge 20.09.2011 (Sabina) gk Judge 6