Criminal Appeal No.D-950–DB of 2007 & -1- Criminal Appeal No.D-921-DB of 2007 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.D-950–DB of 2007 Date of Decision:December 18, 2009 Balbir Kaur @ Beero W/o Kashmir Singh............. Appellant Versus State of Punjab............................................... Respondent Criminal Appeal No.D-921-DB of 2007 Jagdish S/o Biptti............................................ Appellant Versus State of Punjab............................................... Respondent CORAM:- HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE JITENDRA CHAUHAN. Present:- Mr. Raj Kumar Gupta, Advocate for the Appellants Mrs. Manjari Nehru Kaur, Addl. A.G., Punjab. ASHUTOSH MOHUNTA, J. This judgment shall dispose of Criminal Appeal No.D- 950 DB of 2007 and Criminal Appeal No.D-921-DB of 2007, as both these appeals have arisen out of one and the same judgement and order. Present appeals filed by the appellants are directed against the judgment and order dated 1-10-2007 passed by learned Additional Sessions Judge, Ludhiana vide which both the appellants herein have been convicted and sentenced to undergo Criminal Appeal No.D-950–DB of 2007 & -2- Criminal Appeal No.D-921-DB of 2007 rigorous imprisonment for life for the offence punishable under section 302 IPC and also to pay a fine of Rs.5,000/- and in default of payment of fine, they would further undergo rigorous imprisonment for three months. Both the appellants have also been convicted and sentenced to undergo rigorous imprisonment for three years for the offence punishable Under Section 201 IPC and pay a fine of Rs.1,000/- and in default of payment of fine they would further undergo rigorous imprisonment for one month. The brief facts of the prosecution are that in the Year 1994, Harnek Singh, resident of Village Dhanola District Barnala kidnapped Balbir Kaur, (appellant) alongwith her two minor daughters from a nearby village and thereafter there whereabouts were not known for many years. One day the family of Harnek Singh came to know that he alongwith Balbir Kaur and her two minor daughters was living in Karamsar colony, Ludhiana and is working there as a mason. He had also purchased a plot and had constructed there a house and was living in the same. One Jagdish Kumar (appellant) who was also working as a Mason was living with Harnek Singh and lateron one Ram Bhawan also started living with Harnek Singh. Somewhere in July 2002, Rajender Singh son-in-law of Harnek Singh visited the house of his father-in-law in Karamsar Colony, Ludhiana and came to know that he alongwith Balbir Kaur, Jagdish Kumar and two daughters had left the said house and were residing at some Criminal Appeal No.D-950–DB of 2007 & -3- Criminal Appeal No.D-921-DB of 2007 unknown place. On 7-9-2002, a report with regard to missing of Harnek Singh was lodged with the police by Rajender Singh. On 1-10-2002, Rajender Singh came to know that Balbir kaur alongwith her two daughters and Jagdish Kumar were living in a room at Guru Angad Nagar Ludhiana. On further inquiry from the neighbourers, Rajender Singh came to know that now they were living at New Shakti Nagar Jalandhar and that they used to shift their place of residence after short spans of time which strengthened his suspicion that his father-in-law (Harnek Singh) might have been killed by them and that is why they were concealing their presence. On the said information gathered, the matter was reported to the police, upon which statement of Rajender Singh was recorded, which is Exhibit PA by Sub Inspector Waryam Singh and in pursuance thereof FIR No.434 dated 1-10-2002 Under Sections 302, 364, 201/34 IPC, Police Station Basti Jodhewala, Ludhiana (Exhibit PW-20/B) was registered against the appellants, resulting into criminal machinery being set in motion. During the course of investigation, disclosure statements of the appellants were recorded and recovery of iron rod was effected. Statements of the witnesses with regard to last seen and extra judicial confesion were also recorded. Charge-sheet for the offence punishable Under Section 364/302 read with Section 34 IPC and Section 201 IPC was framed vide order dated 24-2-2003. Criminal Appeal No.D-950–DB of 2007 & -4- Criminal Appeal No.D-921-DB of 2007 During the course of trial, prosecution examined 22 witnesses while no defence witness was examined by the appellants-accused herein. On appraisal of the evidence, both medical as well as oral, the learned Trial Court came to a definite conclusion that both the accused namely Balbir Kaur and Jagdish Kumar had killed Harnek Singh as he was a hurdle in their illicit relations between them and threw his dead body in a septic tank to destroy the evidence and hence convicted and sentenced both the appellants for the offence punishable under Sections 302/201 IPC. By way of the present appeal, the aforesaid judgment passed by the learned Trial court dated 1-10-2007 has been impugned by the appellants before us. Learned counsel for the appellants has argued that there is no direct evidence available on record to prove the charge against the accused except extra judicial confession made by Balbir Kaur to PW-2 Jagjit Singh which under the facts and circumstances of the present case is a very weak type of evidence and no evidence at all especially in the absence of any corroborative evidence to that effect and the fact that the aforesaid Jagjit Singh has turned hostile and is thus of no help to the prosecution so as to warrant conviction of the appellant in the present case. He further argued that the entire case is based on circumstantial evidence which without corroboration and evidence cannot be used against the appellants so as to convict them in Criminal Appeal No.D-950–DB of 2007 & -5- Criminal Appeal No.D-921-DB of 2007 the present case. It was further the case of the learned Counsel for the appellants that evidence of last seen by PW-5 Gurdial Singh cannot be relied upon as it has many cracks which also fails to connect the accused with the present crime. He has further vehementally argued that no D.N.A test was got conducted of the dead body of Harnek Singh so as to ascertain that it was the same body which was recovered from the septic tank and further that all the witnesses produced by the prosecution in the present case are interested witnesses being closely related to the deceased, Harnek Singh. In view of the said submissions, the learned counsel for the appellants has prayed for acceptance of the present appeal. On the other hand it has been argued by the learned State Counsel that there is cogent and convincing evidence available on record which has correctly been appreciated by the learned Trial Court while convicting the appellants in the present case. The extra judicial confession made by the appellants before PW-2 Jagjit Singh to the effect that since Harnek Singh had come to know about the relationship of Balbir Kaur with Jagdish Kumar and that he having asked her to put an end to the said relationship, so Harnek Singh being a hurdle in their relationship has been killed by both the accused. It has been further argued by the learned State counsel that the said extra judicial confession has been duly corroborated by the disclosure statement by the accused Exhibit PB & PC vide which they had Criminal Appeal No.D-950–DB of 2007 & -6- Criminal Appeal No.D-921-DB of 2007 been led to the recovery of dead body put in a plastic bag from a septic tank of the house of the deceased situated in Karamsar Colony, Ludhiana and that of a iron rod concealed behind the iron drum of wheat lying in the bed room of the house of Harnek Singh. It has been further argued that PW-1 Rajender Singh son- in-law of Harnek Singh, deceased, has identified the photograph, purse and a pair of rubber chappal of the deceased having been recovered from the plastic bag in which the deceased was put and thrown in a septic tank coupled with the fact that Harnek Singh was last seen by PW-5 Gurdial Singh leaves no manner of doubt that Harnek Singh was killed by the appellants as he had come to know about their illicit relations with each other and that after the said occurrence in order to conceal their presence, Balbir Kaur alongwith her two minor daughters and Jagdish Kumar left her own house and started living in rented accommodations for short spans of time so that no one could identify or mustered the knowledge of the aforesaid murder of Harnek Singh. It has been further argued by the learned State Counsel that even the conduct of Balbir Kaur under the facts and circumstances of the present case is highly unnatural to say that despite the missing of Harnek Singh, who used to live with her and her two minor daughters, she never reported or lodged any report whatsoever with the police in regard thereof which thus points the needle of suspicion on her and infact changes the very complexion of the present case based on circumstantial evidence Criminal Appeal No.D-950–DB of 2007 & -7- Criminal Appeal No.D-921-DB of 2007 to that of a case of based on direct evidence coupled with other evidences available on record. We have heard the learned counsel for the parties and have perused the case file with the assistance and are of the view that the present appeal of sans merit and deserves to be dismissed for the reasons stated herein after. It is apparent from the facts of the present case that Harnek Singh being a mason used to live with Balbir kaur (appellant) alongwith her two daughters and Jagdish Kumar (appellant) in his house situated in Karansar Colony, Ludhiana and was missing from his house since September 2002 but surprisingly no report of his missing was ever lodged by his wife Balbir Kaur or by Jagdish Kumar who was working with him as a mason, with the police, which thus is highly unnatural and unperceivable conduct under the facts and circumstances of the present case. Further as per the statement of PW-2 Jagjit Singh, it has come in evidence that he knew Harnek Singh as he had constructed his (Jagjit Singh’s) house. Thereafter Jagjit Singh went to the house of Harnek Singh on one or two occasions but he was not found there and was told by Balbir Kaur that he had gone somewhere. Even in 2002, Harnek Singh was not found in his house. Thereafter, in September 2002 while the said witness was on morning walk with his son, Balbir Kaur alongwith another person met him and told that now she is living in a rented house Criminal Appeal No.D-950–DB of 2007 & -8- Criminal Appeal No.D-921-DB of 2007 in Angad colony and on asking as to why she had shifted her house, when she had her own house, she replied that she would come to his house and narrate the story. On the same day, she came to his house and told him that Harnek Singh was old and that she is having relations with another person of which Harnek Singh had come to know about it. Since, she continued her relationship with another person, so Harnek Singh being a hurdle in the same, has been killed by them by giving sleeping pills after mixing them in milk to Harnek Singh and after giving three iron rod blows to him by Jagdish Kumar, was put in a plastic blow and thrown in a pit under the courtyard. The credibility and trustworthiness of PW-2 being an independent witness cannot be doubted under the facts and circumstances of the present case as he is neither an interested witness nor a relative of the deceased or Balbir Kaur before whom the aforesaid extra judicial confession was made by Balbir Kaur with regard to murder of Harnek Singh. That the involvement of the appellants in the murder of Harnek Singh is further fortified from the fact that Balbir Kaur pursuant to her disclosure statement (Exhibit-PB) got recovered the dead body of Harnek Singh from a septic tank constructed in her house of which only she had the knowledge. Jagdish Kumar in pursuant to her disclosure statement Exhibit-PC got recovered an iron rod by which blows were inflicted on the person of Harnek Singh, from behind the iron drum of wheat lying in the bed room Criminal Appeal No.D-950–DB of 2007 & -9- Criminal Appeal No.D-921-DB of 2007 of the house of Harnek Singh. The recovery of the dead body from a septic tank contained in a plastic bag from the house of Harnek Singh is a material piece of evidence sufficient to uphold the conviction of the appellants in the present case as but for the said disclosure vis-à-vis the same by Balbir Kaur, the dead body of Harnek Singh which was reduced to a mere Skelton with the passage of time and process of decomposition, could never ever have been recovered or identified. Another vital piece of evidence against the appellants is the identification of photograph, purse, a pair of chapel recovered from the plastic bag belonging to Harnek Singh by PW-1 Rajender Singh and Harpreet Singh son of Harnek Singh (Exhibit-PE). The extra-judicial confession made by Balbir Kaur leading to recovery of the dead body of Harnek Singh and iron rod pursuant to their disclosure coupled with the identification of photograph, purse and a pair of chapel recovered from the plastic bag in which the dead body of Harnek Singh was decomposed by the appellants by putting the same in a septic tank, by PW-1 Rajender Singh and Harpreet Singh son of Harnek Singh (Exhibit- PE) completes the chain of events with regard to murder of Harnek Singh by the appellants. Still further the testimony of Pw-5 Gurdial Singh that he had last seen Hardial Singh in September 2002 is another piece of evidence, sufficient to up-hold the conviction of the appellants in the present case in as much as from the aforesaid discussion, it is Criminal Appeal No.D-950–DB of 2007 & -10- Criminal Appeal No.D-921-DB of 2007 apparent that Harnek Singh was missing but despite that no effort was made by Balbir Kaur (appellant) to either report or lodge a DDR/FIR with regard to the missing of her husband Harnek Singh with the police which thus indeed leads to an inevitable conclusion that Harnek Singh was killed by the appellants for having mustered the knowledge of illicit relations which Balbir Kaur was having with Jagdish Kumar and that in order to remove this hurdle, he was killed. In-fact the appellants themselves have dug a ditch for themselves in as much as after committing the murder of Harnek Singh, they left their own house and started living in rented accommodations as stated by PW-8 Prem Lata, PW-9 Harvinder Kumar @ Kala and PW-19 Ram lal, that too for short spans just to conceal their presence so as to avoid their identification and thus in this way they themselves have given the present case a colour of definite and direct evidence against themselves which at the inception however, was mere a case based on circumstantial evidence. Fom the above discussion, the motive behind commission of the murder of Harnek Singh by the appellants in view of the confessional statement made Balbir Kaur is well established and their disclosure statements leading to recovery of the dead body contained in a plastic bag from a septic tank and iron rod situated within the house of Harnek Singh coupled with the identification Criminal Appeal No.D-950–DB of 2007 & -11- Criminal Appeal No.D-921-DB of 2007 of photograph, purse and pair of chapel recovered from the plastic bag by PW-1 Rajender Singh and Harpreet Singh son of Harnek Singh are vital piece of evidence sufficient to connect the dead body recovered with that of Harnek Singh, having been murdered by the appellants. In view of the aforesaid discussions and thorough appraisal of the case file. The findings recorded by the learned trial Court required no inference and therefore, the same are affirmed. Therefore, we uphold the judgment of conviction and order of sentence passed against the appellants by the learned Additional Sessions Judge, Ludhiana dated 1-10-2007. Consequently, both the appeals filed by the appellants, being devoid of any merit are dismissed. The appellants, if on bail, are directed to be taken into custody forthwith so as to serve the remaining part of their sentence under the intimation to this Court and their surety bonds and bail bonds be forfeited. (ASHUTOSH MOHUNTA) JUDGE 18.12.2009 (JITENDRA CHAUHAN) Rupi/Gulati JUDGE