HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 299 of 2004 With Cr.A. No.: 322 of 2004 Cr.A. No.: 323 of 2004 Cr.A. No.: 477 of 2004 Reserved on: 8.5.2009 Decided on: 3.8.2009 Cr.A. No.299 of 2004 State of H.P. ……… Appellant. Versus Balwinder Singh @ Punjabi and another ………Respondents. Cr.A. No.322 of 2004 Ravinder Singh ……… Appellant. Versus State of H.P. ………Respondent. Cr.A. No.323 of 2004 Balwinder Singh ……… Appellant. Versus State of H.P. ………Respondent. Cr.A. No.477 of 2004 State of H.P. ……… Appellant. Versus Naresh Kumar Kaushal ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. In Cr.A. Nos.299 & 477 of 2004: For the Appellants: Mr.R.M. Bisht, Deputy Advocate General. For the respondents: Mr.Anup Chitkara & Mr.Rakesh Chandel, Advocates. In Cr.A. Nos.322 & 323 of 2004 For the Appellants: Mr. Anup Chitkara, Advocate. For the respondents: Mr. R.M.Bisht, Deputy Advocate General. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - Per V.K. Ahuja, J.: This judgment shall dispose of four appeals arising out of the judgment passed by the learned Additional Sessions Judge (Fast Track Court), Una, dated 19.2.2004. Cr.Appeal No.299 of 2004 has been filed by the State under Section 377 of the Code of Criminal Procedure for enhancement of sentence awarded to accused Ravinder Singh and Balwinder Singh by the learned trial Court. Cr.A.No.477 of 2004 has been filed by the State under Section 378 of the Code Criminal Procedure against the acquittal of accused/respondent Naresh Kumar Kaushal of the offence punishable under Section 212 of the IPC. Cr.Appeals No.322 of 2004 and 323 of 2004 have been preferred by the appellants Ravinder Singh and Balwinder Singh, respectively, under Section 374(2) of the Code of Criminal Procedure against the judgment of the learned trial Court, vide which both of them were convicted and sentenced as under: Under Section 366 read with Rigorous imprisonment for 10 Section 34 of the IPC: years and to pay a fine of Rs.20,000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for two years. Under Section 376(2)(g) read with Rigorous imprisonment for Section 34 of the IPC: life and to pay a fine of Rs.25,000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for two years. Under Section 302 read with Rigorous imprisonment for life Section 34 of the IPC: and to pay a fine of Rs.25,000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for three years. - 3 - Under Section 392 read with Rigorous imprisonment for 14 Section 34 of the IPC: years and to pay a fine of Rs.25,000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for two years. Under Section 201 read with Rigorous imprisonment for 7 Section 34 of the IPC: years and to pay a fine of Rs.10,000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for one year. However, all the sentences were to run concurrently. Briefly stated the facts of the case are that on 11.1.2002, at about 2.25 a.m., a report was lodged with the police by one Sanjeev Kumar that Smt.Suresh Devi, aged about 43 years, was his real sister. She was married 20 years ago with one Ashok Jaswal. Her husband was serving in ITBP and was presently posted at Uttarkashi. His sister was living for the last 5-6 months with her husband at Uttarkashi. Yesterday, on 10.1.2002, at about 4.00 p.m., the complainant was informed by his younger brother Sanjay Kumar that a telephonic message was received by their uncle Harvinder Singh from Ashok Jaswal from Uttarkashi that on 9.1.2002, he had sent his wife Suresh Devi in the night bus alongwith the 2-3 colleagues of his Unit and their families, who were the residents of Baijnath. His brother further told him to verify from Bhadsali as to whether Smt.Suresh Devi had reached her house or not. He verified from Bhadsali and then from Una Bus Stand and learnt from one Laddi that on 9.1.2002 in between 12.30/1.00 a.m. one lady aged about 40-45 years had gone in a Maruti Van bearing No.DDA 5884 alongwith Jasbir Singh @ Punjabi, who was also known as Balwinder Singh and Surjit Singh, and the Van had gone towards Bhadsali in which one Ravinder Kumar was also sitting. He - 4 - searched for those two boys on 10.1.2002 and in the evening at about 7.00 p.m., he learnt from taxi drivers named Surender Sharma and Rajinder Kumar that Ravinder Kumar had met them in Village Saloh, who, on enquiry, told that a woman named Suresh Devi had gone with them on 9.1.2002 for Bhadsali on payment of charges. It was further learnt that they had taken the woman in the Van and on way, his Taya (uncle) Jasbir Singh alias Punjabi alias Balwinder Singh committed rape with her forcibly and thereafter, they threw her in Nangal river. Thereafter, the present report was lodged by the brother of the deceased on which a case was registered. The investigation was conducted by the police and the dead body of the deceased Suresh Devi was recovered from Nangal Canal on 10.1.2002. The husband of the deceased PW-3 Ashok Kumar came to Bhadsali and identified the dead body of his wife at Una. The recovery of some gold ornaments including a silver Pajeb was made at the instance of the disclosure statement made by the accused persons, which were identified by PW-3 Ashok Kumar and the recovery of some cash was also made from the Van as well as that of some other articles. On completion of the investigation, the challan was filed in the Court of the learned Chief Judicial Magistrate, Una, who committed the case to the court of the learned Sessions Judge, Una and thereafter, the case was assigned to the learned trial Court, who tried the accused persons leading to the conviction of two of them, as detailed above, and the third accused was acquitted of the charge framed against him. We have heard the learned counsel for the accused as well as the learned Deputy Advocate General for the State and have gone through the record of the case. It is clear from a perusal of the evidence led by the prosecution that there is no direct evidence as against both the appellants (accused) and respondent (accused) and the evidence led by the prosecution is circumstantial and various circumstances were proved by the prosecution and it - 5 - was submitted that the chain of circumstances is complete, which points out only to the guilt of the accused and as such the submissions made by the learned Deputy Advocate General were that both the accused persons were rightly convicted, though the third accused was wrongly acquitted by the learned trial Court. During the course of arguments, we have been taken through the various circumstances proved by the prosecution and the learned counsel for the accused had pointed out to various contradictions or infirmities in the said circumstances proved by the prosecution to which reference shall be made below in detail, while referring to these various circumstances proved on record. Before referring to the various circumstances proved on record, we may point out that the learned trial Court has not dealt with each of the circumstances relied upon by the prosecution in detail, to come to the conclusion as to which circumstances stand so proved and which have infirmities or contradictions therein. It has only reproduced the prosecution story and had given its findings and for that reason, we have to make a detailed examination of the various circumstances proved in evidence and the infirmities therein. It was expected of the learned trial Court to have discussed each circumstance separately and given its findings referring to the contradictions or infirmities, if any, in their evidence and then conclusion should have been drawn as to why the prosecution evidence is being relied upon. We will refer to each circumstance proved by the prosecution and then we will conclude if the circumstances proved are sufficient or not to prove the case of the prosecution beyond any reasonable doubt against both the appellants, who were convicted and sentenced by the learned trial Court and the third accused, who was acquitted by the learned trial Court. The first circumstance relied on by the prosecution was that the deceased had reached Bus Stand, Una, boarded the taxi being driven by the appellants and as to whether she was taken by them in the taxi which was to go - 6 - to Bhadsali, the in-laws village of the deceased. The first witness to prove this fact can be said to be PW-3 Ashok Kumar, the husband of the deceased, who had sent his wife from Uttrakashi in the bus bound for Haridwar from where the deceased was to change the bus and take another bus for Una. PW-3 Ashok Kumar has stated that his wife used to limp while walking. On 9.1.2002, he had sent her in Uttarkashi bus hound for Haridwar from where she had to pick another bus for Una at about 6.30 a.m. He further stated that after boarding her in the bus, he gave a telephonic call to his relative Narender at village Bhadsali to receive her at Una Bus Stand in the same night during 11.00 p.m. to 2.00 a.m. He stated that she was carrying with her one hand bag and another carry bag/air bag apart from purse. He stated that apart from the clothes, she was carrying on one bottle of Rum, two cakes of Rin soap and 4-5 cakes of bathing soap Lux. She was also having 85 notes of Rs.100/- in one bag apart from the money Rs.1100/1200 approximately she was carrying in the purse. PW-3 Ashok Kumar further stated that on the next morning at about 10/11.00 a.m., he rang up at Bhadsali and Narender told him that his wife had not reached Bus Stand, Una during the night, although Narender himself had gone to the Bus Stand to receive her. Then, he rang up his in-laws at Pandoga and had a talk with Harminder Singh and asked him to verify if his wife had reached at Pandoga. Then Harmider Singh, after verification, informed him that she had not reached at Pandoga also. Next day, he again rang up at Pandoga and his brother-in-law Sanjay informed him that his wife was raped and murdered by throwing her in a canal at Nangal. He immediately left Uttarkashi and reached Bhadsali next early morning. In cross examination, he stated that he had told Narender that wife of another Havildar of Baijnath was also accompanying his wife. However, he has stated that he had not told Narender or Ravinder that he has sent his wife with two Jawans of his Unit. - 7 - From the above statement of the husband of the deceased, it transpires that he had sent his wife alongwith another Havildar’s wife, who was going to Baijnath. The Investigating Officer Inspector Dharam Chand, as has come up in his statement as PW-27, appears to have not made sincere efforts to trace out the name of the Havildar’s wife who had also gone on the same date from Uttarkashi to Baijnath. A perusal of the cross examination of PW-27 Dharam Chand shows that he only asked the complainant about the whereabouts of the passengers who were stated to have accompanied the deceased from Uttarkashi and were bound for Palampur, but he could not locate them. It appears that he simply asked the complainant who could have given the name of the unit member’s wife after verifying it from the Unit and the said lady could have easily stated as to by which bus they started from Haridwar and at what time the deceased got down at Una Bus Stand. It appears that the Investigating Officer did not send any team to Uttarkashi alongwith the husband of the deceased to locate the said Unit member and since the husband was not able himself to give the details, the Investigating Officer did not deem it necessary to collect such evidence which could have proved the case of the prosecution to this extent as to at what time the bus reached at Una Bus Stand and as to whether it reached prior to the time the persons had reached the Bus Stand to receive the deceased, as sent by Narender to whom the telephonic information had been given by the husband of the deceased. Thus, on the basis of the statement of the husband of the deceased, we cannot conclude, in the absence of other evidence, as to at what time the deceased started from Haridwar after changing the bus or, in fact, she reached Una Bus Stand at some prior time in a bus bound for Una or in the bus going to Baijnath also. However, for this faulty investigation, we cannot hold that the prosecution case suffers from any infirmities but we have to proceed on the basis of the evidence - 8 - whatever has been led by the prosecution as to whether it is sufficient or not to prove their case. We will now refer to the statements of the witnesses produced by the prosecution, who had seen a middle aged woman coming to Bus Stand, Una, who was limping, which was one of the identification that could be used for linking the presence of the deceased at Bus Stand, Una. The first witness in this regard is PW-6 Suresh Kumar, who has stated that on the night of 9.1.2002, Narender, Yash Pal and he had come in a taxi from Village Bhadsali to Bus Stand, Una to receive Smt.Suresh Kumari, wife of Ashok Kumar, from the Haridwar bus. The driver of the taxi bearing No.2962 was Yash Pal. He further stated that at about 11.45 p.m., they parked the taxi outside the gate of the Bus Stand. He and Yash Pal went on foot inside the Bus Stand, had a round and came back to the taxi, as by that time the bus had not reached there. After sometime, Yash Pal alias Lucky went to some boys who were warming up and he kept on sitting with Narender in the Van. After 10-15 minutes, Lucky came back to the Van and slept inside it. After sometime, Haridwar-Baijnath bus came there. He and Narender went inside the bus, but Suresh Kumari was not there. The Conductor of the said bus told them that more buses would be coming from Haridwar side, so they came back to the Van and waited till 4-5 a.m. They waited for some buses but the lady was not found and they went back to Bhadsali in the same taxi. In cross examination, he has stated that Ashok Kumar i.e. the husband of the deceased, had informed them that the bus would reach at Bus Stand, Una at about 2.00 a.m. He denied the suggestion that he alongwith Narender had consumed liquor at the Bus Stand and was confronted with portion ‘A’ to ‘A’ of his statement wherein he had stated that Yash Pal took liquor in their presence. From the above discussion of the statement of this witness, it transpires that three persons including Narender, who had received the telephonic call and was the relative of the deceased’s husband, Yash Pal alias - 9 - Lucky who was the driver of the Van and Suresh Kumar had gone to receive the deceased at Bus Stand, Una. The material witness could be said to be Narender, who had received the telephonic call and as per PW-6 Suresh Kumar, Narender had also come to Bus Stand, Una, but his non-examination by the prosecution rather suggests and leads us to an inference that probably he had not come himself, but to show to his relative i.e. the husband of the deceased, it was brought on record that he had also come to Bus Stand, Una. However, his statement was material to conclude in regard qua the telephonic message received from the husband of the deceased and the fact that at what time they reached the Bus Stand and kept waiting there for the deceased. The driver of the taxi was also a material witness, but both these persons were not examined by the prosecution for the reasons best known to them. Thus, we are left with the solitary statement of PW-6 Suresh Kumar, as discussed above, who proves that they reached the Bus Stand at 11.40 p.m. and checked the buses which came thereafter, but the deceased was not found and rather an inference can be drawn, as shall be referred below after the discussion of the other evidence, that, probably, the bus may have reached prior to 11.40 p.m. when these persons came there and the deceased agreed to take the van of her own to go to her village. The next material witness is PW-4 Hazari Lal. He has stated that he runs a Cigarette-Bidi shop inside the new Bus Stand. At about 11.30 or 12.00, during night on 9.1.2002, he and 5-6 other persons were warming up themselves by sitting around fire lit outside the shop of M/s Dayal Sweets, which was just outside the Bus Stand. He has named the persons alongwith him as Punjabi, Bablu alias Ravinder, Sehdev and one Dipu. He admitted that they were consuming liquor also. After sometime, Lucky also came and joined them and he gave him a note of Rs.100/- for fetching liquor from the nearby liquor vend. He brought the liquor and they consumed the bottle. Thereafter, Punjabi and Bablu - 10 - brought two bags and a lady from the Bus Stand. That lady was limping at the time of walking. They took her in white colour van bearing No.DDA 5884. He stated that before leaving, he asked Punjabi as to where they were going. He replied that the said lady was the relative of Lucky and, therefore, they were going to drop her at her house in Village Bhadsali. He stated that at that time, Lucky had gone after consuming liquor. After 2-3 days, 4-5 persons came to the Bus Stand and were enquiring about the lady and he told them that she had been taken in the Van by Punjabi and Bablu. He also stated that he told them that they were taking her to Bhadsali. He also identified both the accused Punjabi and Bablu. He also stated that later on, he identified the dead body of that lady in the mortuary of District Hospital, Una. In cross examination, this witness (PW-4 Hazari Lal) has stated that he was aware of the taxi in which that lady was taken. He stated that he cannot say about the other taxis or the passengers taken in those taxis. He further stated that since Lucky had already gone from that place, no suspicion was raised in his mind about the taking of that lady by the accused persons. However, the vehicle of Lucky was parked there at that time. In cross examination, he clarified that Lucky left that place at about 11.45 p.m. The accused persons left that place at about 12.00 or 12.15 a.m. He stated that he did not know the names of the persons to whom he had told that the lady was taken by the accused persons 2-3 days ago, but those persons were from Bhadsali. In cross examination he came up with the plea that he could not identify the dead body because he had not seen the lady closely during the night. The next witness in this sequence is PW-5 Harmesh Kumar, who has stated that he runs an STD Booth at Bus Stand, Una. On the night intervening 9/10.1.2002, two boys named Punjabi and Bablu had come to his STD Booth. He was sleeping in the Booth. Punjabi and Bablu woke him up for - 11 - giving a telephonic call. They tried but the call did not mature. Meanwhile, a lady came there and gave him a slip on which telephone number of Uttarkashi was written and requested him to connect the same. He tried but the phone call did not mature. In his presence, accused Punjabi had enquired from her as to where she had to go. The said lady told accused Punjabi that she was to go to Village Bhadsali. He further stated that both the aforesaid accused and that lady left his Booth together. He gave time of their coming as 11.30 to 12.00 at night. Later, the police had shown him the dead body which he could not identify and he was declared as hostile for not partly supporting the prosecution story. He denied that he had given the features of the lady and, thus, he was confronted with his police statement where these were mentioned. He was also confronted with his police statement wherein he has stated that he had identified the dead body. The next relevant witness is PW-7 Sehdev Singh, who has stated that he is owner-cum-driver of a Van which is being run as a taxi. He stated that he used to park his car at the Taxi Stand at Una. On 9.1.2002, at about 11 or 12 in the night, he alongwith others was sitting outside Dayal Sweets, near Bus Stand, Una. Some other persons were also present with him, namely, Laddi, Punjabi, Bablu and Lucky alias Yash Pal. He stated that Laddi was sent by Punjabi to bring liquor and Laddi brought the same, which was consumed by both the accused as well as by Laddi and Yash Pal. Thereafter, Yash Pal alias Lucky went toward entry gate of the Bus Stand and Punjabi and Bublu went inside the Bus Stand. They had parked their Taxi bearing No.DDA 5884 in front of the Dayal Sweet Shop adjoining to pedestrian gate leading to the Bus Stand. On seeing the entry of a bus inside the Bus Stand, Punjabi followed that bus and after sometime, he came with two bags and a lady who was limping. The said lady, Bablu and Punjabi went to Bhadsali. In his presence, Laddi had asked Punjabi as to where he was taking his taxi, to which - 12 - Punjabi replied that the lady was the relative of Lucky alias Yash Pal and as such he was going to drop her there. In this sequence, the next material witness is PW-12 Ravinder Kumar. He has stated that he used to drive Utility Van at Una. On the night of 9.1.2002, he had parked his Jeep at the Taxi Sand at Una. At about 11.00 or 11.30 p.m., he was warming up alongwith others around a fire. Besides him, Laddi, Monti, Punjabi and Bablu were also there. After sometime, Lucky also came there. Lucky, Punjabi and Laddi took liquor. Lucky told them that he had come to pick up a lady passenger to be taken to Bhadsali and went towards his vehicle, which was parked near the Petrol Pump. Thereafter, Punjabi and his Massi’s son (accused present in the Court) went towards the Bus Stand and brought one lady. She was limping while walking. Then they took the said lady in their Van bearing registration No.5884 alongwith bag. He had identified that lady and stated that she was, perhaps, Suresh Kumari living in village Bhadsali, whom he had seen earlier also in the Village. It may be pointed that he had given his address as resident of Bhadsali to which village the lady belonged to, since she was married in that village. He has also stated in cross examination that liquor was purchased by Punjabi through Laddi, though he has stated that Lucky did not give Rs.100/- for the liquor to Laddi. From the above discussion of the evidence,