Criminal Appeal No.71-DB of 2000 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Naresh Kumar alias Kali Ghiri APPELLANT VERSUS State of Punjab RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE JUSTICE (MRS.) DAYA CHAUDHARY Present:- Shri B.S.Rana, Advocate for the appellant. Shri S.S.Gill, Additional A.G. Punjab. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 3.12.1999 of the learned Sessions Judge, Jalandhar whereby he convicted Naresh Kumar alias Kali Ghiri son of Phul Chand under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/-, in default, to further undergo RI for six months. The case of the prosecution is unfolded by the statement Girja Mehto Criminal Appeal No.71-DB of 2000 -2- Ex.PC, wherein he stated that he is a resident of Bihar and was working as Chowkidar for the last 26 years in Military Dairy Farm, Jalandhar. He along with his family resides in government quarter situated in Military Dairy Farm. On 9.4.1996 he and Satnam Chowkidar were on duty on Plot No.2 to 20. All these plots are on the back side of the Artillery Officers' Mess near the water tank. They were on watch duty from 2 p.m. to 10 p.m. Satnam Chowkidar had gone to Plot No.20. It was about 5 p.m. Girja Mehto was near Plot No.15 situated on the back side of the Officers Mess wherein Oat (avena sativa) crop had been sown for cattle. When he went inside the field of Oat about 30/35 feet deep, he saw the dead-body of a woman aged about 35/36 years, of dark complexion, height being about 5 feet, wearing green coloured trousers and having red, blue and yellow flowers printed on it. Her neck was tied with a Dupatta of maroon colour. It looked someone had strangulated her. Girja Mehto informed Satnam Chowkidar and thereafter gave information at his farm Manager/authorities in the military dairy farm on 10.4.1996. On the basis of this statement, F.I.R. Ex.PC/2 was recorded on 10.4.1996 at 11 a.m. and the special report reached the J.M.I.C., Jalandhar on 11.4.1996 at 2.25 p.m. The prosecution to prove its case, brought into the witness-box Dr.Gurjinder Kaur PW-1, Dr.Jatinder Sachhar PW-2, Girja Mehto PW-3, Rajesh Kumar PW-4, SI Joginder Pal PW-5, HC Kanwar Nau Nihal Singh PW-6, Constable Gurdev Singh PW-7, Romesh Lal PW-8, Dalip Singh PW-9, Sweety PW-10 and SI Mohan Singh PW-11. Learned counsel for the appellant has argued, that the only material witness of the prosecution is Sweety PW-10. Rajesh Kumar PW-4 son of the deceased who identified the body, has not suspected anyone. His testimony before the Court does not show any suspicion also, as to who committed the murder. The Criminal Appeal No.71-DB of 2000 -3- occurrence had taken place on 7.4.1996 and the statement of Sweety Ex.PE was recorded on 16.10.1996, under Section 161 Cr.P.C. i.e. after a gap of six months. No explanation is coming from the side of the Investigating Officer SI Mohan Singh PW-11, as to why the statement was recorded so late. In her testimony before the Court Sweety PW-10 has stated, that she saw the occurrence. She knew the accused for the last 4/5 years. Strangely in her statement before the Court, when she appeared as a witness, she has not named any Army personnel whom she has stated she knew for the last 4/5 years. No rape was committed. The motive for the deceased and Sweety PW-10 to go to the water tank along with the appellant was for the purpose of having sexual relations with the Army personnel. As it was a case of consent, the learned trial Court has rightly not convicted the appellant under Section 376 I.P.C. Learned counsel for the State has argued that deceased Krishna, Sweety PW-10 and appellant Naresh Kumar were partners in the commission of the offence of making money by indulging in sex trade with the Army personnel who lived in the Cantonment. There is no delay in recording of F.I.R. Ex.PC/2. It is after the F.I.R. came into existence that the investigation started and the Investigating Officer came to the conclusion, that it was appellant Naresh Kumar who had committed the murder of Krishna. Statement of Sweety PW-10 is cogent and truthful. This witness has not hidden anything from the Court. We have heard the learned counsel for the parties and perused the record with their assistance. The occurrence in this case had taken place on 7.4.1996 at 8.30 p.m. Dr.Jatinder Sachhar PW-2 who performed the post-mortem has stated, that rigor mortis was present on the dead-body of Krishna, but only on the legs and arms. Criminal Appeal No.71-DB of 2000 -4- This showed that the rigor mortis was leaving the body. The occurrence must have taken place at about 7.4.1996. Though the police had come into action after F.I.R. Ex.PC/2 was recorded, but the only evidence they could collect was the statement of Sweety PW-10 which, instead of helping the prosecution, demolished the case of the prosecution. Sweety PW-10 has stated that she knew Krishna deceased. On the day of occurrence, she went to the house of appellant Naresh Kumar along with Krishna who met them near the Church at Jalandhar Cantt. Time was about 8.30 p.m. Thereafter appellant took her and Krishna to the water tank near fish pond in the army area at Jalandhar Cantt. Four army personnel were present there. A cot was lying there. Appellant and two other army personnel first committed rape on Sweety PW-10, while two military personnel took Krishna inside the room near the water tank. Appellant Naresh Kumar and two military personnel who had committed rape on her (Sweety PW-10), also went inside the room. All the five after consuming liquor, committed rape on her (Sweety) PW-10. Thereafter they went towards Krishna. After some time she heard shrieks and saw Krishna in a naked position, while one army personnel was committing rape with her. Krishna slapped that army personnel. Thereafter two army personnel caught hold of her legs (Krishna) and the other committed rape on her. A Chunni was then put around the neck of Krishna and she was strangulated. Sweety PW-10 has further stated that she ran away. She has further stated that she knew the appellant for the last 4/5 years prior to the incident. Her statement under Section 161 Cr.P.C. Ex.PE was given on 16.10.1996, while the occurrence had taken place on 9.4.1996. No explanation is coming forward as to why the statement of this eye-witness was recorded after a gap of six months of the occurrence under Section 161 Cr.P.C. In her cross-examination Sweety PW-10 Criminal Appeal No.71-DB of 2000 -5- has admitted that she had been going to the military personnel for sexual intercourse as she was being handsomely paid. She along with Krishna used to go to the military personnel as they were safe from the general public. The money they collected used to be divided equally between Krishna deceased, Sweety PW- 10 and appellant Naresh Kumar. Sweety PW-10 has categorically stated that she saw army personnel consuming liquor with the appellant and thereafter murdering Krishna. The learned trial Court has rightly not convicted the appellant under Section 376 I.P.C. as it is clear from the statement of Sweety PW-10 that she was indulging in sex trade along with Krishna deceased, the middle man being appellant Naresh Kumar. The version put forward by Sweety PW-10 is not believeable qua the murder of Krishna. The Investigating Officer SI Mohan Singh PW-11, it seems, could not identify the army personnel who had committed the murder of Krishna, so the best course open for the Investigating Officer was to falsely implicate the appellant. Appellant Naresh Kumar seems to be a party to the illegal activities of Sweety PW-10 and Krishna deceased. He was also getting money and there was no motive for him to commit the murder of Krishna, for the reasons that it was a source of income for him also. Rajesh Kumar PW-4 son of the deceased has stated in his testimony before the Court that Krishna was his mother. All he has stated, is that he identified the body of his mother in Civil Hospital, Jalandhar. He has not pointed any finger towards anyone, nor has he stated that he even suspected the appellant for committing the murder of his mother. There is no cross-examination done of this witness, nor did the Public Prosecutor declare him hostile. With the above discussion and observations, we are of the considered Criminal Appeal No.71-DB of 2000 -6- opinion that appellant Naresh Kumar has not committed the murder of Krishna. He has been falsely implicated and he deserves the benefit of doubt. Appeal is allowed and appellant Naresh Kumar son of Phul Chand is acquitted of the charge framed against him. He be set free forthwith, if not wanted in any other case. ( MEHTAB S.GILL ) JUDGE ( DAYA CHAUDHARY ) March 25, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO