Criminal Appeal No. 420-DB of 1999 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 420-DB of 1999 Date of decision : 23.5.2008 Gurdev .....Appellant Versus State of Haryana ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. Raman B. Garg, Advocate as Amicus Curiae Mrs. Naveen Malik, Addl. Advocate General, Haryana. S. D. ANAND, J. The appellant is in appeal against the conviction by the learned Trial Judge for the offences under Section 302 and 376 IPC. The prosecution allegation, upheld at the trial, is that he had raped the prosecutrix and, then, murdered here. The prosecution plea is based upon circumstantial evidence. PW-5 Parma and PW-6 Sumer Chand constitute the last- seen evidence segment and their testimony on oath is buttressed by the fact that appellant Gurdev, in pursuance of a disclosure statement, got the recovery of Dari Ex. PE/1 and Salwar Ex. PE/2 (belonging to the prosecutrix) effect. PW-1 Constable Ramesh Chander and PW-3HC Chandi Criminal Appeal No. 420-DB of 1999 -2- **** Ram tendered their affidavits Ex. PA and Ex. PC respectively. Those affidavits represent testimony of formal character. PW-2 Constable Rishi Pal, holder of a diploma in Draftsmanship obtained in the year 1993 from the ITI, Kaithal and posted in S.P. office, Kaithal, had prepared scaled site plan Ex. PB on the pointing of Dasahria. PW-4 ASI Mohinder Singh, then posted at Police Station, Kalayat had recorded formal FIR Ex. D/2 on receipt of statement (Ex.PD) of Dasahria which had been forwarded to the Police with endorsement Ex. PD/1. PW-5 Parma and PW-6 Sumer Chand are witnesses of last-seen evidence. PW-7 Dasahria is father of the prosecutrix and the first informant. PW-8 HC Sugan Chand had attested the disclosure statement made by the appellant on 25.11.1997 and also the recovery memo vide which the articles recovered in pursuance of the disclosure statement were taken into possession by PW-12 SI Satbir Singh who is Investigating Officer. PW-11 Mange Ram, a private photographer, had photographed the spot on 24.11.1997. He proved photographs Ex. P1 to Ex. P5 and Ex. P12 and also their negatives Ex. P13 to Ex. P18. Appellant pleaded innocence. He did not adduce any evidence in defence. Learned Amicus Curiae, appearing on behalf of the appellant, argues in favour of invalidation of the impugned finding of conviction on the plea that Ram Phal who had spotted the dead body of the prosecutrix and had given intimation of that fact to Dasahria had not been examined at the trial. Yet another criticism directed at Criminal Appeal No. 420-DB of 1999 -3- **** the prosecution presentation is that recovery of Dari Ex. PE/1 and Salwar Ex. PE/2 are averred to have been effected at the instance of the appellant from the places which cannot be said to be in exclusive possession of the appellant. Concededly, the investigating agency had not been able to obtain any direct evidence to nail the appellant. At the same time, we find that last-seen evidence, appreciated in the light of the recovery got effected by the appellant in pursuance of a disclosure statement, is clinching to hold the appellant legally accountable on a charge of having raped and murdered the prosecutrix. PW-5 Parma is a witness to the distribution of sweets by the appellant on the pretext of installation of hand pump. This witness was around at the house of his son to cull out the milk of buffaloes belonging to the latter ( i.e. son of PW-5 Parma). It is in his testimony (not challenged on that point) that only one house intervenes the house of his son Shiv Kumar and the appellant. As evident from the testimony of PW-5 Parma, the house of Gurdev and Dasahria are located opposite each other and only a street intervenes the same. Besides a number of small children including the prosecutrix, this witness was also the recipient of Parshad (sweets). It is in the categorical testimony of this witness that, thereafter, the appellant took the prosecutrix in his arms and proceeded towards his house. He also indicated date of incident as 23.11.1997 and further gave the timing as about 5.00/6.00 P.M. He proceeded to testify that the fact that the prosecutrix had been found Criminal Appeal No. 420-DB of 1999 -4- **** missing came to the notice of the entire village at about 7.00 P.M. on that very evening. The fact that he brought the above incident (of the appellant having distributed the sweets and his having picked up the prosecutrix thereafter and taken her towards his house) to the notice of the father of the prosecutrix was owned by Dasahria-PW7. He owned up that statement in the course of his supplementary statement which he otherwise made on the very day his main statement had been recorded by the police. The fact that he disclosed those facts to the police in the course of the supplementary statement cannot be said to have any adverse significance towards the prosecution presentation. Dasahria was a distraught father who must have been shaken by the fact that his female child was missing. It could not be expected that a father, completely shaken by above facts, would be able to tell the police each and every detail with exactitude. PW-6 Sumer Chand owns the shop from where the appellant made the purchase of “Petha sweet and Rewari Mithai, known as Kheel”. He also clarified that “on an enquiry, he told me that he was installing a water tap (hand pump) in his house and was purchasing the sweet for celebrating the occasion.” It is further in his testimony that he distributed sweets among children which included the prosecutrix aged 4/5 years whom he lifted “in his lap and took her away towards her house. Again said he had taken her away towards his own house.” The fact that this witness brought the fact afore-mentioned to the notice of Dasahria is owned by the latter (“I Criminal Appeal No. 420-DB of 1999 -5- **** had told the police that Sumer who runs a shop in the Mohalla, had told me that he had spotted the accused, namely Gurdev Singh of our village, while taking away my daughter on the pretext of giving sweets to her. He had also told me that on 23.11.1997, in the evening, at about 6. 00 P.M., accused Gurdev Singh had purchased the said sweets from his shop, by stating that he was getting installed an hand pump at his house/Ghair and was to distribute the sweets amongst the children on that occasion. He had also told me that he had distributed the sweets to one Parma as well as the children, including my daughter Pinki and had picked up my daughter in his lap and had taken her away towards his house. I had told all these facts to the police, in my supplementary statement made over in the village”). It needs no reiteration that people living in the particular locality would show love and affection for the children belonging to other families. In this case, there is clinching evidence to the effect that the appellant was living in a house in the immediate vicinity of Dasahria. People belonging to that strata of society, to which appellant and Dasahria belong, would be expected to even celebrate the installation of a hand pump. There would be nothing unusual if people from that segment of society would celebrate even an occasion of a much lesser significance. In the present case, the appellant is proved to have distributed the sweets amongst children. He is also proved to have picked up the prosecutrix in his lap and having taken her along towards his house. The time intervening that Criminal Appeal No. 420-DB of 1999 -6- **** incident and the finding of dead body of the prosecutrix after having been ravished does not admit of any inference other than that it was the appellant who committed the despicable and dastardly act of first deflowering a minor female child and, then, murdering her. That part of the evidence is buttressed by the fact that appellant got recovery of Dari Ex. PE/1 and salwar Ex. PE/2 effected. The latter clothing belonged to the prosecutrix. Coming to the criticism directed at the impugned finding, we may point out that non examination of Ram Phal ( who was given up as unnecessary) is not sufficient to out weigh the other evidence available on the file which we find to be adequate to nail the appellant. The other criticism, in the context of recoveries having been effected from an open place, is also without any merit. Insofar as the Salwar Ex. PE/1 is concerned, it was got recovered from under the bricks on the south of the pond. Dari Ex. PE/2 containing blood stains had been got recovered from under the paddy bags which were lying in the West of a room in residential house of the appellant. The latter place cannot be said accessible to all and sundry because it was a part of his residential dwelling. Even the other place of recovery cannot be said to be suffering from any taint because Salwar got recovered was lying concealed under the bricks. Obviously none other than the appellant could be cognizant of the place of concealment aforementioned. We find, on a perusal of the record, that the learned Trial Judge recorded detailed and valid reasoning to uphold the Criminal Appeal No. 420-DB of 1999 -7- **** prosecution presentation and decline the appellant’s plea of innocence. That finding deserves to be affirmed, particularly when it is also in evidence that the appellant was found missing from his house immediately after the prosecutrix had been found missing. The testimony of Dasahria is categorical to the effect that he found the appellant missing from his house. In the light of the foregoing discussion, we find the appeal to be devoid of merit. The same shall stand dismissed. ( S. D. ANAND ) JUDGE May 23, 2008 (ADARSH KUMAR GOEL) Pka JUDGE