In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Appeal No.758-DB of 2003 ..... Date of decision:3.11.2008 Kuldeep Singh son of Prem Singh ...Appellant v. State of Haryana ...Respondent Coram: Hon'ble Mr. Justice S.S. Saron Hon'ble Mrs. Justice Sabina Present: Mr. Sameer Sachdev, Advocate (Amicus Curiae) and Mr. Jangjit Singh Dahiya, Advocate for the appellant. Mr. H.S. Sran, Additional Advocate General, Haryana for the respondent-State. ..... S.S. Saron, J. This appeal has been filed by the appellant-Kuldeep Singh against the judgment and order dated 6.9.2003 passed by the learned Additional Sessions Judge (Ad hoc), Jhajjar whereby the appellant has been convicted for the offences under Sections 377, 302 and 201 Indian Penal Code (`IPC'- for short) and sentenced to undergo rigorous imprisonment for seven years besides to pay a fine of Rs.2,000/- for the offence under Section 377 IPC and in default of payment of fine to undergo further rigorous imprisonment for one month. He has also been sentenced to undergo imprisonment for life besides to pay a fine of Rs.5,000/- for the offence under Section 302 IPC and in default of payment of fine to undergo further rigorous imprisonment for three months. Lastly, he has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/- for the offence under Section 201 IPC and in default of payment of fine to undergo further rigorous imprisonment for one month. The substantive Cr. Appeal No.758-DB of 2003 [2] sentences of imprisonment have been ordered to run concurrently. The FIR (Ex.PG/1) has been registered on the statement of Pushpa Devi (PW-12) wife of Satbir. It is stated by her that she does household work and her husband had died 1½ years ago. She had two sons, namely, Sahil aged five years and Sagar (deceased) aged three years. Her mother-in-law Mahanta Devi lives with her while her father-in-law Ved Parkash lives separately. On the date of occurrence i.e. 21.5.2001 at about 9.00 p.m. Krishan Kumar who is the brother of her mother-in-law had come at Village Narnaud. He had brought mangoes which the children had taken. Thereafter, Sahil had gone to the house of Rameshwar in the neighbourhood for watching TV. The younger son Sagar (deceased) was put off to sleep on the roof of the house. At that time, Kuldeep (appellant) was sleeping on a cot of his roof. The complainant-Pushpa Devi (PW-12) came down and cooked meal for Krishan Kumar who had come. After Krishan Kumar finished his meal, he went to the house of Suraj Bhan son of Matu Ram to meet him. At about 10.00 p.m., Pushpa Devi brought her son Sahil from the house of Rameshwar and took him on the roof to put him off to sleep. At that time, Sagar (deceased) was not there. She asked Kuldeep (appellant) but he did not say anything. She then informed her mother-in-law about this and they started searching for Sagar at night itself in the neighbourhood but he could not be found. On 22.5.2001, the dead body of Sagar was found in the manger of the cattle shed from the `Ghair' (enclosure) of Ram Phal son of Chandgi Ram. His bush shirt drenched with stool was lying by his side. There was an injury on the head of the child. Stool had been coming out from his anus and there was injury on the anus. At the roof, where Kuldeep Cr. Appeal No.758-DB of 2003 [3] (appellant) was sleeping, there was stool of the child lying. The complainant had full belief that Kuldeep (appellant) had murdered her son after committing sodomy with him. His dead body was concealed in the `Ghair' (enclosure) of Ram Phal which was thrown there. Kuldeep (appellant) committed sodomy and had committed murder. She requested for legal action being taken. The said statement was recorded, which was signed by Pushpa Devi-complainant (PW-12). The same was attested by Bharat Singh, SI/SHO, Police Station Beri (PW-14). The Police proceedings were recorded by Bharat Singh, SI/SHO (PW-14) on 22.5.2001 to the effect that on receipt of a telephonic information, he along with Jugal Kishore, ASI and other Police officials reached the spot at the `Ghair' (enclosure) of Ram Phal son of Chandgi Ram resident of Baithan Panna Beri in a Government jeep. The dead body of Sagar aged three years was at the spot. Pushpa Devi (PW-12) got her statement recorded which was read over to her word by word. After admitting it to be correct she had signed it in Hindi which was attested by Bharat Singh, SI/SHO (PW-14). From the statement offences under Sections 302/201 IPC were found to have been committed. Accordingly, a writing was sent for registration of a case (FIR) through Constable Daler Singh. Besides, the officers and Illaqa Magistrate were asked to be informed through special report. On the basis of the FIR that was registered, investigations were carried out by the Police. Bharat Singh, SI/SHO (PW-14) conducted inquest proceedings (Ex.PM) in terms of Section 174 of the Code of Criminal Procedure (`Cr.P.C.' - for short). The statement of the witnesses were recorded. The site was inspected from where blood stained earth and stool were taken from the manger and was Cr. Appeal No.758-DB of 2003 [4] sealed vide memo Ex.PD. The bush shirt of Sagar (deceased) was seen lying at the `Ghair' (enclosure) of Ram Phal. It had stains of human excreta. It was also sealed. Some human excreta was also found lying on the roof of the house of Kuldeep (appellant). It was also taken and sealed. Rough site plan (Ex.PK) of the place of occurrence with correct marginal notes was prepared. The dead body of Sagar (deceased) was sent for post-mortem examination. The post-mortem was conducted by a Board of doctors comprising of Dr. J.K. Bhalla, Medical Officer, CHC, Meham (PW-3) and Dr. Jai Kishore, MO, CHC, Jhajjar. The cause of death was opined to be due to injury to vital organs i.e. brain which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The injuries around the anus were suggestive that offence of sodomy had been committed. On 7.7.2001, Bharat Singh, SI/SHO (PW-14) received a message from Police Station Thanesar that Kuldeep (appellant) was in their custody and he has been arrested in some theft case pertaining to the said police station. Bharat Singh, SI/SHO (PW-14) went to Thanesar on the next day. The appellant was being produced before the Illaqa Duty Magistrate and an application was moved seeking permission of the Court for arresting him in the present case. With the permission granted by the Court he was arrested in the present case. The appellant was medically examined by Dr. Dinesh Kumar, Medical Officer, General Hospital, Beri (PW-2) who on his examination opined that there was no suggestive evidence which renders him (Kuldeep) incapable to perform sexual intercourse. After completion of the investigation, charge-report (challan) was filed in terms of Section 173 Cr.P.C. Cr. Appeal No.758-DB of 2003 [5] The prosecution in order to prove its case examined as many as 16 witnesses besides documents including the Forensic Science Laboratory report (Ex.PC) were tendered in evidence. After closing of the prosecution evidence the statement of Kuldeep Singh (appellant) in terms of Section 313 Cr.P.C. was recorded. The substance of the evidence appearing against him was put to him. He took the plea that it was a false case and he was innocent. Besides, he was not even present at the village on the alleged date of occurrence and he had been falsely implicated in the case. The learned trial Court after considering the evidence and material on record has convicted and sentenced the appellant for the offences under Sections 377, 302 and 201 IPC and he has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 IPC; besides other sentences of imprisonment. The sentences of imprisonment has been ordered to run concurrently. The appellant aggrieved against the said judgment and order has filed the present appeal. Shri Sameer Sachdeva, Advocate (Amicus Curiae) and Shri Jangjit Singh Dahiya, Advocate, learned counsel for the appellant have contended that the appellant has been falsely implicated and there is nothing to establish that he was involved in the present case. It is submitted that as per the prosecution case itself the appellant was arrested in another case and thereafter he has been falsely implicated in the present case so as to show that the crime had been solved and the case was complete. In fact, it is highly improbable that Pushpa Devi (PW-12) who is the mother of Sagar (deceased) and who is a minor aged about three years would leave him alone on the roof top while she would go and prepare meal for Krishan Cr. Appeal No.758-DB of 2003 [6] Kumar (PW-7). Therefore, it is submitted that the appellant is liable to be acquitted of the offences attributed to him. In response, Mr. H.S. Sran, Additional Advocate General for the respondent-State has submitted that the prosecution has proved its case in all material aspects and there is nothing to dislodge the findings recorded by the learned trial Court in convicting and sentencing the appellant. The prosecution has proved the entire sequence and chain of events which leads to the inescapable conclusion of establishing the guilt of the appellant beyond shadow of reasonable doubt. Therefore, the appeal is liable to be dismissed. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance have gone through the record of the case. Smt. Pushpa Devi (PW-12) on whose statement the FIR (Ex.PG/1) was registered has while deposing in Court reiterated the version as initially given by her on the basis of which FIR was registered. It is stated by her that on the night of 21.5.2001, Krishan Kumar (PW-7), the brother of her mother-in-law had come to their house and he had brought fruit for both the children. Sagar (deceased) was taken by her (Pushpa Devi) to the roof as he wanted to sleep and he was left on his bed on the roof. At that time Pushpa Devi (PW-12) saw Kuldeep Singh (appellant) lying on his cot on the roof of his house. She came down stairs and was busy in kitchen work. After serving meal to Krishan Kumar (PW-7) he went to the house of Suraj Bhan son of Matu Ram in the village to meet him. She then went to bring her other son Sahil who had gone in the neigbourhood to watch T.V. When she again went to the roof top, she Cr. Appeal No.758-DB of 2003 [7] did not find Sagar (deceased) on his bed. At that time Kuldeep (appellant) was lying on his cot on the roof of his house. She made a search for Sagar (deceased) and then called her mother-in-law Mahanta Devi (PW-6). She also joined in the search for Sagar. In the meantime, Krishan Kumar (PW-7) also returned and they all searched for the boy. They also made an inquiry from Kuldeep (appellant) but he did not give any satisfactory reply. They continued searching for Sagar. They continued searching for Sagar upto 12 midnight and 1.00 a.m. Next day in the morning at about 6.00 a.m., Ram Phal (PW-5) their neighbour told them that a dead body of a child was lying in the manger of the buffaloes in their house. They all went to the house of Ram Phal (PW-5) and the dead body of Sagar was lying there. It was an undressed dead body and they noticed that some sodomy had been committed with the boy. Then they went to the roof of Kuldeep (appellant) where he was lying at night on the cot. At that place one bush shirt smeared with human excreta was lying there and some excreta was also lying on the roof. There was head injury on the person of Sagar. Besides, there was an injury on his anus. There was discharge of excreta. The Police was informed which arrived there in the village and statement (Ex.PG) of Pushpa Devi was recorded which was read over to her. In cross- examination it is stated by Pushpa Devi that appellant-Kuldeep was the son of the elder brother of her husband. The appellant generally remains away from his house but on the date of this occurrence he was present in his house. They were not on good terms with the accused. The accused had remained with them upto midnight in search for the boy. The Police had arrived after about one hour of the discovery of the dead body. She was Cr. Appeal No.758-DB of 2003 [8] cross-examined at some length but nothing could be brought out from her cross-examination, which would, in any manner, help the appellant. Krishan Kumar (PW-7) has also given a version as given by Pushpa Devi (PW-12). It is stated by him that on 21.5.2001 i.e. the date of the occurrence he had come to Village Beri at the house of his sister Mahanta Devi (PW-6). He had brought mangoes with him and after eating mangoes, Sagar (deceased) went to sleep upstairs while Sahil went in the neighbourhood for watching TV. Pushpa Devi (PW-12) prepared the meal and after taking meal he went to the house of Suraj Bhan to talk with him. At about 10.30 p.m. he returned to the house of his sister from the house of Suraj Bhan and he saw Mahanta Devi (PW-6) and some neighbours searching for Sagar (deceased). Mahanta Devi (PW-6) told him that Sagar, who was sleeping on the roof, was missing. So he also started searching for him and they continued the search throughout the night. At about 7.00 a.m. the next day when he was returning from the side of temple somebody from the village informed him that a dead body was lying in the manger in the house of Roshan Lal. Then he went to the manger and saw the dead body of Sagar lying there. Many persons from the village had gathered. He was cross-examined by the defence but nothing favourable could be brought out. Mahanta Devi (PW-6) stated that her son Satbir had expired about three-four years ago and she was residing with Pushpa Devi (PW-12) widow of her son Satbir. She (Pushpa Devi) had two sons Sahil aged five years and Sagar (deceased) aged three years. She also narrated the version which has been deposed by Pushpa Devi (PW-12) and Krishan Kumar (PW- Cr. Appeal No.758-DB of 2003 [9] 7). She was cross-examined by the defence. However, nothing favourable for the appellant could be brought out. Ram Phal (PW-5) has deposed that on 22.5.2001 he had gone to the house of his brother-in-law Satbir and then he had gone to the house of Roshan Lal of Village Beri where the dead body of Sagar (deceased) was lying in the manger. He identified the dead body before the Police. In cross- examination it is stated that he had arrived at Beri at 8.30 a.m. He was called on a telephonic call. He went to the hospital at Beri and then went to the village. He was interrogated only regarding the identification of the dead body. It may be noticed that Roshan Lal is son of Ram Phal as is deposed by Rajesh (PW-13). Sewa Ram, Sub Inspector (retired) resident of Kurukshetra (PW-16) has deposed that on 6.7.2001 the appellant Kuldeep was in police custody in a theft case of Police Station, Thanesar. He had interrogated him in that case and he made a disclosure statement regarding the occurrence of the present case. The said disclosure statement was recorded by him, the photo copy of which was Ex.PH, however, the same was objected to be inadmissible in evidence. They had sent information to the Police of Police Station, Beri in that regard and the appellant was arrested by the Police of Police Station Beri with the permission of the Court. In cross-examination, it is stated that no persons from the public was called before interrogating the accused. The perusal of the disclosure statement Ex.PH shows that the appellant in the presence of Constable Sulekh Chand and Constable Krishan Kumar had disclosed that about two-three months ago in Jyotinagar, Cr. Appeal No.758-DB of 2003 [10] Kurukshetra at about 7.00/8.00 p.m. he along with Wazir alias Raju son of Balkar Singh, Caste Labana Sikh had stolen a gold set and one Videocon colour (TV) after breaking the lock of the house and opening the almirah and he could get the stolen articles recovered. Besides, about 20-25 days ago he had called the grand-son of his father’s elder brother (Tau), namely, Sagar (deceased) aged about 6-7 years son of Satbir, resident of Beri to the roof of his house while he was playing on the roof of his own house. He made him lie straight on the cot and strangulated him by pressing his neck with the left hand. He was then thrown into the enclosure (Ghair) of Roshan Lal, Jat who was his neighbour and was covered in their manger (Khor). He woke up early at about 5-6 a.m. and worked for a day in a hotel at Rewari. Thereafter, he worked under Rameshwar Pandit at Village Kisan for about 10-15 days. About this murder except him nobody else know and he could demarcate the place where he had committed the murder. After recording his statement his thumb impression was obtained. The said statement (Ex.PH) though has been recorded by Sewa Ram, Sub Inspector, Police Station Thanesar on 6.7.2001, however, its admissibility was objected to. The statement Ex.PH in fact leads to discovery of a fact, which required further probe into the matter. Sewa Ram, SI (PW-16) has deposed that the statement (Ex.PH) was recorded and information was sent to Police Station, Beri in that regard. This enabled Bharat Singh, SI/SHO, Police Station (PW-14) to arrest Kuldeep Singh (appellant) who was already a suspect as Pushpa Devi (PW-12) in her statement (Ex.PG) had stated that she had full belief that Kuldeep (appellant) had murdered her son after committing sodomy Therefore, the question whether the statement (Ex.PH) Cr. Appeal No.758-DB of 2003 [11] was admissible in evidence or not need not be gone into as the same is to be taken into consideration only for the purpose that the appellant was arrested by the Police in the present case in pursuance of his arrest by the Police of Police Station, Thanesar in another case. There is also the evidence of Rajesh (PW-13) who last saw the appellant with Sagar (deceased). Besides, Roshan Lal (PW-1) son of Ram Phal has deposed that on 21.5.2001 at about 9.30 p.m. he took an electric torch and went to the enclosure to take care of the cattle. Near the enclosure when he flashed the light of the torch on the way he found that Kuldeep (appellant) was taking the son of the complainant in his lap on the corner of the street. On inquiry, Kuldeep (appellant) told him that he was playing with Sagar. Then he went to his house. He was also cross-examined, however, nothing could be brought out which could favour the appellant. It is deposed by him that on the night of 21.5.2001 he went upstairs of his house as he used to sleep in the upper storey of his house. When he came on the roof of his house he saw Sagar (deceased) son of Pushpa playing with Kuldeep (appellant) on the roof of the house of Pushpa Devi. Then he went to his room and switched off the lights which were outside the room and also the light inside the room and he went to sleep. After about one or one and half hours Pushpa Devi, her mother-in-law and some other persons came to him while searching for Sagar. He told them that he saw Sagar playing with Kuldeep (appellant) on the roof of Pushpa Devi’s house. Then he again went to bed. In the morning the dead body of Sagar was found lying in the manger of the house of Roshan Lal. Roshan Lal is the son of Ram Phal. In his cross-examination, he was confronted regarding his Cr. Appeal No.758-DB of 2003 [12] stating before the Police that he was playing with Sagar on the roof of Pushpa Devi’s house. He was confronted with his statement (Ex.DA) where it was mentioned that Kuldeep was having Sagar in his lap and was sitting on the roof of his house when he went upstairs. Therefore, Sagar (deceased) was last seen with the appellant on the roof of the house of Pushpa Devi (PW-12) and on the next morning his dead body was found. Attar Singh, photographer (PW-4) had gone to the place of occurrence on the asking of the Police. He took photographs of the dead body of the child lying at the spot which were Ex.P.1 to P.8 and negatives Ex.P.9 to P.16. In his cross- examination, he stated that he reached the spot for taking photographs at about 8.30 a.m. and remained there for about one hour. Bharat Singh, SI/SHO, Beri (PW-14) carried out the investigation in the case and he arrested the appellant. In his cross-examination it is stated that he received information regarding the recovery of dead body at about 9.00 a.m. and he reached the village at 9.15 a.m. They returned to the police station from the village at 1.45 p.m. They had issued an advertisement regarding the present case and the accused. In the facts and circumstances, the chain of circumstances are complete which point to no other conclusion except the guilt of the appellant. Besides, the motive of crime is also established, inasmuch as, the offence of sodomy was committed. The circumstances are such that Sagar (deceased) minor son of Pushpa Devi (PW-12) was put to sleep on the roof of the house by his mother who then came down to attend to Krishan Kumar (PW-7), who is the brother of her mother-in-law Mahanta Devi(PW-6). The other son of Pushpa Devi, namely, Sahil had gone to watch TV in the Cr. Appeal No.758-DB of 2003 [13] neighbourhood. Krishan Kumar (PW-7) after having his meal went to meet Suraj Bhan. When Pushpa Devi had gone to put Sagar to sleep she had seen Kuldeep (appellant) lying on a cot on the roof of his house. Rajesh (PW-13) and Roshan Lal (PW-1) had also seen the appellant with Sagar (deceased). Human excreta found on the roof of the house of Kuldeep (appellant). Kuldeep (appellant) is the son of the elder brother of the deceased husband of the complainant Pushpa Devi (PW-12). Dr. J.K. Bhalla (PW-3) conducted the post-mortem examination of Sagar. He found stool present around anus and found crack of 0.75 cm. X 0.1 cm. at 11 and 10 o'clock around the anus of about 0.5 cm. from anal verge. Dr. J.K. Bhalla (PW-3) also observed a lacerated wound 4 x 1 cm. on parietal region of scalp above 1 cm. posterior to hair line. Another 1.5 cm. x 1 cm. lacerated wound in right parietal region about 8-10 cm. posterior to first injury. There was fracture of right parietal bone corresponding to first injury and fracture of bilateral parietal bone and left temporal bone corresponding to posterior lacerated wound. It was also observed that stool was present around anus; mouth and eyes were closed. There was intra-cranial collection of blood and brain was also lacerated. Corresponding to the lacerated wounds. Cause of death in their opinion was due to injury to vital organs i.e. brain and all the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The injuries around anus, it was opined, were suggestive that sodomy offence was committed on the deceased. The FSL report (Ex.PC) was perused as human semen was detected on the anal swab, therefore, it was opined that possibility of sodomy over the victim could