Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision: March 11 ,2011 1. Murder reference No.2 of 2010 1. Gurdev Singh son of Rattan Singh resident of village Jakhauli, Police Station Sadar Kaithal,District kaithal. 2. Suresh Kumar son of Sajjan Kumar, resident of village Karora,Police Station Rajond,District Kaithal. 3. Rajinder Singh son of Nathu Ram,resident of village Karora,Police Station Rajond,District Katihal. 4. Satish Kumar, son of Sube Singh resident of village Jakhauli,Police Station Sadar Kaithal,District Kaithal. 5. Baru Ram son of Musadi Ram,resident of vilage Jakhauli,Police Sadar Kaithal,District Kaithal. V. State of Haryana 2. Criminal Appeal No.479 -DB of 2010 1. Mandeep son of Dhoop Singh, residen tof village Bhambhora,Polcie Staton Barwala,DistrictHissar,Haryana. 2. Gurdev Singh son of Rattan Singh resident of village Jakhauli, Police Station Sadar Kaithal,District kaithal. 3. Suresh Kumar son of Sajjan Kumar, resident of village Karora,Police Station Rajond,District Kaithal. 4. Rajinder Singh son of Nathu Ram,resident of village Karora,Police Station Rajond,District Katihal. 5. Satish Kumar, son of Sube Singh resident of village Jakhauli,Police Station Sadar Kaithal,District Kaithal. 6. Baru Ram son of Musadi Ram,resident of vilage Jakhauli,Police Sadar Kaithal,District Kaithal. 7. Ganga Raj son of Tara Chand, resident of village Karora,Police Station Rajond,District Kaithal,Haryana Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 2 V. State of Haryana 3. Criminal Revision No.2173 of 2010C Chanderpati widow of late Shri Satbir Singh,resident of \ village and Post Office Karora,District Karnal. V. 1. State of Haryana,through Advocate General. 2. Mandeep son of Dhoop Singh, residen tof village Bhambhora,Polcie Staton Barwala,DistrictHissar,Haryana. 3. Gurdev Singh son of Rattan Singh resident of village Jakhauli, Police Station Sadar Kaithal,District kaithal. 4. Suresh Kumar son of Sajjan Kumar, resident of village Karora,Police Station Rajond,District Kaithal. 5. Rajinder Singh son of Nathu Ram,resident of village Karora,Police Station Rajond,District Katihal. 6. Satish Kumar, son of Sube Singh resident of village Jakhauli,Police Station Sadar Kaithal,District Kaithal. 7. Baru Ram son of Musadi Ram,resident of vilage Jakhauli,Police Sadar Kaithal,District Kaithal. 8. Ganga Raj son of Tara Chand, resident of village Karora,Police Station Rajond,District Kaithal,Haryana CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr.S.S.Randhawa,Additional Advocate General,Haryana. Mr.R.S.Cheema,Senior Advocate with Ms.Tarannum Cheema,Advocate, for respondents No.1 to 3 in Murder ref. No.2 of 2010 for appellants No.1 to 4 and 7 in Crl. A. No.479-DB of 2010 and for respondents No.2 to 5 and 8 in Cl.Revn. No. 2173 of 2010. Mr.Vinod Ghai,Advocate for respondents No.4,5 in Murder Ref. No.2 of 2010, for appellant No.5 and 6 in Crl.A. Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 3 No.479-DB of 20101 and for rspondens No.6 and 7 in Crl.Revn. No.2173 of 2010. Mr.R.S.Bains,Advocate for petitioner in Criminal Revision No.2173 of 2010 and the complainant in Criminal Appeal No.479-DB of 2010. M.Jeyapaul,J. This order shall dispose of Murder reference No.2 of 2010, Criminal Appeal No.479-DB of 2010 and Criminal Revision No.2173 of 2010 as the facts and law involved in the aforesaid cases are similar and they also arise from the one and same occurrence. 2. The first accused Mandeep in Sessions case No.29/09 on the file of Additional Sessions Judge,Karnal was convicted for the offence under Section 364 of the Indian Penal Code and was sentenced to undergo seven years rigorous imprisonment and also to pay a fine of Rs.5000/-; in default to undergo a further period of one year rigorous imprisonment. He was also convicted for the offence under Section 120-B of the Indian Penal Code and was sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1000/-; in default to undergo a further period of six months rigorous imprisonment. Second accused Gurdev Singh, third accused Suresh Kumar and fourth accused Rajinder Singh, fifth accused Satish Kumar and sixth accused Baru Ram in the same Sessions case were convicted under Section 302 of the Indian Penal Code and were awarded death sentence each. They were also convicted for the offence under Section 364 IPC and were sentenced to undergo seven years rigorous imprisonment each and to pay a fine Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 4 of Rs.5000/- each and in default to undergo a further period of one year rigorous imprisonment each. They were also convicted for the offence under Section 120-B of the Indian Penal Code and were sentenced to undergo three years rigorous imprisonment each and to pay a fine of Rs.5000/- each and in default to undergo a further period of six months rigorous imprisonment each. Accused Ganga Raj in Sessions Case No.27 of 2009 originated from the very same FIR but based on the supplementary charge sheet filed in that case was convicted for the offence under Section 302 IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default to undergo a further period of two years rigorous imprisonment. He was also directed to compensate mother of the deceased Manoj by name Chanderpati to the tune of Rs.1,00,000/- under Section 357 of the Code of Criminal Procedure. He was convicted for the offence under Section 364 of the Indian Penal Code and was sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo one year rigorous imprisonment. He was also convicted for the offence under Section 120-B of the Indian Penal Code and was sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo six months rigorous imprisonment. 3. Having imposed death sentence on the accused 2 to 6 in Sessions Case No.26 of 2009, the Additional Sessions Judge, Karnal has referred the matter for confirmation. The accused 1 to 6 in Sessions Case No.26 of 2009 and the accused Ganga Raj in Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 5 Sessions Case No.27 of 2009 jointly filed Criminal Appeal No.479 of 2010 challenging the aforesaid order of conviction and sentence recorded. 4. The revision has been preferred by the witness Chanderpati, the complainant in the case praying for enhancement of the life imprisonment imposed on the 7th accused Ganga Raj to death sentence for the offence under Section 302 IPC. She has also prayed for enhancement of compensation of Rs. One lac directed to be paid by him to a reasonably higher amount. A prayer for compensation also has been made against respondents No.2 to 7. Prosecution version 5. (a) PW25 Chander Pati was the mother. PW26 Seema was the sister and PW2 Narender Singh was the cousin brother of the deceased Manoj. Manoj and Babli left the village on 6.4.2007 and got married on 7.4.2007. Om Pati the mother of Babli enraged by the act of Manoj lodged a complaint against him and his family members with Rajound Police Station. PW 24 SI Jagbir Singh on the basis of the complaint lodged by Om Pati registered FIR No.24 on 26.4.2007 as against Manoj and his family members. (b) On 12.6.2007 Manoj filed application for anticipatory bail under Section 438 Cr.P.C. in the Court of Sessions. The Sessions Court directed Babli and Manoj to join in the process of investigation on or before 16.6.2007. On 15.6.2007 Babli and Manoj were produced by their Counsel Mr. Bhardwaj before the Investigating Officer. Babli's statement was recorded under Section 161 Cr.P.C. Manoj also joined in the process of investigation. Babli Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 6 was produced before the Court of the Addl.Chief Judicial Magistrate and her statement under Section 164 Cr.P.C. was recorded by PW37 Mr. V.P.Sirohi, Addl.Chief Judicial Magistrate. ( c ) In the said statement recorded under Section 164 Cr.P.C. Babli has stated that she having married Manoj started living with him at Chandigarh on her own volition. No body had exerted pressure on her. The family members of Manoj were not involved in her affairs. After the statement of Babli was recorded, PW24 SI Jagbir Singh was directed to set them at liberty. Babli and Manoj escorted by HC Dharampal and Constable Satbir boarded in a Haryana Roadway Bus bound for Chandigarh. As some foul play was suspected by PW24 SI Jagbir, he gave a message to HC Dharampal to get down from the bus at some place. PW24 followed them in a zipsy vehicle. The police party along with Babli and Manoj met him at village Malikpur. As per the wish of the couple PW24 SI Jagbir Singh dropped them at Pipli Bus Stand after obtaining their written consent statements Ex.P49 and P50 wherein they expressed their desire to go all alone without any escort facility. (d) PW25 Chander Pati received a telephonic message from Manoj at about 4 pm on 15.6.2007 that he and his wife had reached Pipli but the relatives and family members of Babli namely her maternal uncle, her maternal uncle's sons, her father's sister's husband and her father's sister's sons were chasing from Kaithal and had reached Pipli. Manoj also informed PW25 Chander Pati that Babli's maternal uncle's sons and her father's sister's sons were also in the same bus. Therefore, police officials alighted them from the Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 7 bus and left them alone at Pipli. He also conveyed that he along with his wife was proceeding to Delhi. PW25 Chander Pati conveyed this message to PW2 Narender Singh the cousin brother of Manoj. PW25 made an attempt to get in touch with Manoj thereafter but the mobile phone was found switched off. (e) On 15.6.2007 at about 5 pm PW12 HC Ramesh Chand who was on duty in Butana Police Station received a telephonic message that a girl and a boy were forcibly got down from the bus by about 16 persons and were taken in a scorpio vehicle towards Karnal. Upon recording such a message in the log book, he conveyed a VT message to the control room Karnal. The original log book maintained by PW12 was marked as Ex.P24. (f) PW 25 Chander Pati tried to contact her son Manoj on 16.6.2007 and 17.6.2007 but the mobile phone of her son was found switched off. She and her family members searched for Manoj but they could not locate him. Thereafter she proceeded to Butana Police Station and lodged a complaint Ex.P52 on 20.6.2007 alleging abduction of her son. PW31 ASI Dharam Pal registered a formal FIR Ex.P62 based on the complaint Ex.P52. (g) PW 31 ASI Dharam Pal proceeded along with HC Surinder Singh and PW15 Constable Shamsher Singh to the toll plaza Arjeri where PW1 Kuldip Singh, the contractor of the toll plaza along with five persons met him. The spot was inspected by PW31 and at the instance of PW1 Kuldip Singh rough site plan Ex.P64 was prepared. PW1 produced one pair of shoes MO1 and MO2 and the same was recovered vide memo Ex.P2. PW2 Narender Singh Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 8 produced a joint photograph of Manoj and Babli vide memo Ex.P3. (h) PW33 SI Subhash proceeded to the Toll Plaza where Dharampal along with other police team was present. He conducted raid of the house of A-3 Suresh Kumar and A-4 Rajender Singh but those accused could not be traced. A secret information was received regarding the mobile phone bearing sim card No.94660-97435 possessed by A-4 Rajinder Singh and the mobile phone bearing sim card No.94161-11565 possessed by the second accused Gurdev Singh. (i) On 21.6.2007 PW18 EHC Nahar Singh collected the call details of mobile bearing sim card No.94161-11565 and mobile phone bearing sim card No.94660-97435 from the computer incharge of S.P. Office Karnal. The call details of the mobile possessed by Rajinder Singh was marked as Ex.P66 and the call details of mobile possessed by Gurdev Singh was marked as ExP67. (j) PW13 Krishna, Chowkidar of village Chota, spotted the dead body of a male while he was going on a stroll on 23.6.2007. Hands,neck and feet of the dead body were found tied with a rope. He gave a statement Ex.P26 to PW27 HC Mahender Singh attached to Police Post Kheri Chowk, Police Station Narnaud. The dead body was found in the canal which was passing through the revenue estate of village Sotha. PW3 Karamvir, Chowkidar of village Sandlana,District Hisar spotted a mutilated dead body of a female in the minor irrigation running in the village Sandlana. Her legs were tied with a rope. He gave a statement Ex.P5 to PW28 ASI Rai Singh who recorded the same. PW28 conducted inquest under Section Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 9 174 Cr.P.C. of the dead body of the aforesaid female and prepared inquest report Ex.P34. (k) On 24.6.2007 PW16 Dr.Rajat Pankaj, Demonstrator in the department of Forensic Medicines PGI M.S.Rohtak conducted post mortem examination on the dead body of an unknown female aged 25 years. The dead body was wrapped in a white gunny nag. The body was emitting foul smell. Maggots of size 5-1” cm were found crawling all over the body. Both the legs of the body were tied by means of two ropes with a fixed knot. All the neck structure was missing. Fingers of right hand and right foot were missing. On the same day, he also conducted post mortem examination on the dead body of an unknown male person aged 26 years. The dead body was wrapped in a gunny bag. The ears, eyes and lips were deformed. Face was not identifiable. Penis and scrotum were distorted. A plastic rope was tied around the neck and the lower of which was tied around both legs and both knee joints by a fixed knot. On dissection the right crone of hyoid bone was found fractured. The doctor opined that the death would have been caused by strangulation. The time of death and post mortem examination was between one to three weeks. (l) PW29 SI Vinod Kumar based on the post mortem report given by PW16 Dr.Rajat Pankaj registered a case in crime No.1551 dated 26.6.2007 under Section 302 read with Section 201 of the Indian Penal Code (Ex.P38). (m) PW2 Narender Singh was informed of the scorpio bearing HR -05-M 4748 and the name of the driver as Mandeep (A-1) Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 10 by his friend Raja. On 26.6.2007 based on the secret information PW33 proceeded along with PW2 and arrested Mandeep Singh. (n) On 27.6.2007 Mandeep suffered a disclosure statement Ex.P69 to PW33 ASI Subhash. The toll plaza Arjeri where the abduction was committed was demarcated. The place where Babli and Manoj were dropped also was demarcated. Mandeep Singh was thereafter produced before the Additional Chief Judicial Magistrate for remand and he was taken on police custody thereafter. On the basis of his fresh disclosure statement, the scorpio MO18 was recovered vide memo Ex.P72 from its owner Rakesh. ( o ) On 1.7.2007 PW25 Chanderpal and PW26 Seema proceeded to Narnaud Police Station along with SI Jaspal and identified the articles/clothes recovered from the dead body of female member as that of Babli and dresses recovered from the male member as that of her son Manoj. PW34 Inspector Amar Dass took up the case for further investigation. He proceeded along with the accused Mandeep in a private vehicle. On his identification accused Rajinder, accused Suresh and accused Gurdev were arrested. They individually suffered disclosure statements. ( p ) The place of abduction was demarcated at their instance based on their disclosure statements. On the basis of the information furnished by the accused Gurdev Singh, accused Satish was arrested. On the basis of the disclosure statement given by the accused Satish, the place where Manoj and Babli thrown in the canal was demarcated. On the basis of the disclosure statement of accused Rajinder Singh, the place where indosulpha was Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 11 administered by Babli was demarcated. The container of Indosulpha was also recovered on the basis of the disclosure statement given by accused Suresh Kumar. On the basis of the disclosure statement given by accused Gurdev, the purse which was taken out from the pocket of Manoj was recovered. The maruti car driven by accused Baru Ram was intercepted. On the basis of the signal given by the accused Suresh, Babu Ram was arrested. He also suffered disclosure statement Ex.P79. The maruti car 800 bearing registration No.HR-09-6500 was taken into possession vide memo Ex.P80. (q) On 7.7.2007 PW34 Inspector Amar Dass with the help of vacuum clearner recovered in the presence of PW6 Gulab Singh,Sarpanch and PW38 Richpal Singh, motor mechanic, Haryana Roadways Karnal burnt pieces of photo,hairs and hairclip from the scorpio vehicle and a batton and a ghoogru made of silver was from the maruti car. Both the vehicles were mechanically examined by PW38 Richpal Singh. ( r ) PW35 Inspector Surinder Singh inspected Maruti car bearing registration No.HR-09-6500 and found that there was a blood stain on the right handle door of the rear seat. The portion of the blood stained handle was cut off and was rcovered. (s ) PW39 SI Jaspal Singh laid final report as against the accused 1 to7 in AC No.26 of 2009 on 21.9.2007. PW40 SI Jagpal Singh perused the case diary and laid final report as against the , accused Ganga Ram in Sessions case No.27 of 2009. 6. Statements under Section 313 Cr.P.C. ( a ) A-1 Mandeep Singh Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 12 He was innocent. He was falsely implicated in this case. ( b ) A-2 Gurdev Singh and A-5 Satish Kumar They were innocent. A false case was foisted on them. They had no concern with the deceased Babli and his family. A panchayat was convened in connection with the compromise of the case pertaining to FIR No.54 registered in Rajond Police Station at the behest of Om Pati, the mother of Babli. Chanderpati and his family members were accused in that case. Both of them were appointed as arbitrators on behalf of the panchayat but the matter was not compromised. Therefore, PW25 Chanderpati who was the complainant in this case had a grudge against them. In view of the above they were involved in this case. ( c )A-3 Suresh Kumar He was innocent. A false case was foisted on him. His mother Om Pati lodged the FIR No.54 in Rajond Police Station under Sections 363/364 of the Indian Penal Code against the complainant PW25 Chandepati and his family members. A-6 Baru Ram and A-7 Ganga Raj were pursuing the matter for the arrest of the accused in the said case. His sister was not married to Manoj. As a pressure tactic the present case was filed against him also. ( d ) A-4 Rajinder Singh He was innocent. A false case was foisted on him. A-6 Baru Ram, A-7 Ganga Raj and himself were pursuing the case relating to FIR 54 in Rajond Police Station. Hence he was involved in the present case by PW25 Chanderpati. Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 13 ( e ) A-6 Baru Ram He was innocent. A false case was foisted on him. Om Pati got registered FIR No.54 in Rajond Police Station under Sections 363 and 364 of the Indian Penal Code against the complainant and her family. He along with Ganga Ram A-7 was pursuing the matter for the arrest of the accused in the said case. The complainant and her family members were against him. He was the owner of the car bearing No.HR09-A-6500 and the same was used for taxi purpose by his driver. He did not know driving. He was falsely implicated in this case. ( f ) A-7 Ganga Raj He was innocent. He was involved by the complainant Chanderpati in the present case at the behest of Jasmer Singh resident of Kultara. He along with his cousin got registered a First Information Report in Sadar Police Station, Kaithal against Satbir Singh. He was witness in that case. Jasmer Singh was pursuing the said case on behalf of Satbir. Chanderpati and Jasmer have good relationship with each other. He also contested election against PW2 Narender Singh who lodged a complaint against him pertaining to the election matter. He was also pursuing the FIR No.54 of 2007 registered against PW25 Chanderpati and her family. He was not related to Suresh and Rajinder of village Karora. He was also not related to Baru Ram,Satish, Gurdev Singh etc. PW25 Chanderpati got him involved in this case because of enmity with him. Defence evidence 7. (a) DW1 Krishan Kumar,Halqa Patwari of village Karora Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 14 having brought the summoned record of village Karora, deposed that as per the record maintained by him, the lands of Suresh, Sajjan and Rajinder are not situated between Canal and Road leading from Karora to Rehra. The road leading from village Karora to Rehra was situated from North to South. As per girdawari the land was in self occupation of the owners. (b) DW2 Bharat Bhushan, Halwa Patwari of Rehra having brought the summoned record of village Raura has deposed that as per the record maintained by him, the land of Zebra was not situated on the road leading from Rehra to Karora. The road leading from village Rehra to Karora is situated from North to South. As per girdawari, the land was in the self occupation of the owners. Submission on the side of the appellants : 8. ( a ) Learned Senior Counsel Shri R.S.Cheema,appearing for the appellants 1 to 4 and 7 and learned Counsel Mr. Vinod Ghai appearing for appellants No.5 and 6 would submit that the Sessions Judge has unfortunately mis-appreciated the evidence on record and rendered conviction when there was no legal evidence available on record. There was threat for the deceased Manoj and Babli from both the families but the investigation has been misdirected towards the family members of Babli. The unnatural conduct of PW25 Chanderpati the complainant in this case would go to show that the calender for the prosecution case has been prepared virtually on 20.6.2007, retrospectively from 15.6.2007. No mother would have waited for five long days to lodge a complaint when there was serious threat for the life of Manoj and Babli. Who actually committed Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010 15 abduction and murder has not been established by the prosecution beyond reasonable doubt. (b)The trial Court was completely swayed by the vague reference to the family members and relatives made by PW25 both in her statement Ex.P52 and also in her deposition before the trial Court. Further she has come out with a self contradictory version as to the number of persons involved in the crime. Though she had implicated only three persons in the statement she chose to give evidence as against all the seven accused. The first accused Mandeep figured only during the course of investigation. The deposition of PW 25 that she was aware of the involvement of the first accused also even at the time when she gave complaint Ex.P52 does not stand to reason. STD booth is not armed with mobile connection but PW25 Chanderpati would state that her son Manoj contacted her on 15.6.2007 through