Criminal Appeal No. 380-DB of 2006 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Appeal No. 380-DB of 2006 Date of Decision: 18.11.2011 Satbir Singh alias Nanha ... Appellant Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. S. S. Sandhu, Amicus Curiae for the appellant. Mr. Sandeep Vermani, Additional Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. Sunny, aged about 4 years, son of the complainant Prem Singh, PW.1, had gone to attend his school situated at village Garhi Chhaju along with other children on 9.11.2004 at about 9.00 A.M., but he did not return home. By the evening, a search was made for him. A proclamation was also made by beat of drum (munadi) in the village and also in the neighbouring villages. The next morning i.e. 10.11.2004, dead body of Sunny was found in the gallery of the School, having injuries on his neck and waist. This led his father-Prem Singh, PW.1, to Criminal Appeal No. 380-DB of 2006 2 approach the police and make a report Ex.PA, containing above stated facts. In his report Ex.PA, the complainant specifically stated that since he was not having any enmity with anyone, therefore, he is not doubting involvement of anybody in the crime. The statement Ex.PA was recorded by PW.7 Jai Singh, Assistant Sub Inspector, Police Station Samalkha, on 10.11.2004 at about 10.30 A.M. at the turning of village Garhi Chhaju on the basis whereof formal FIR Ex.PN was registered. During investigation, various incriminating circumstances surfaced against appellant-Satbir Singh alias Nanha which led the Investigating Agency to submit a final report under Section 173 Cr.P.C. After commitment of the case, the appellant was tried by the Court of Additional Sessions Judge, Panipat and was found guilty vide its impugned judgment dated 27.2.2006, for offence under Sections 377 read with Section 511, 302 and 201 IPC. Vide a separate order dated 1.3.2006, the appellant was sentenced as under:- Sr. No. Sentence Under Section Sentence Awarded 1. 302 IPC To undergo imprisonment for life and to pay a fine of Rs.1,000, in default thereof to further undergo rigorous imprisonment for a period of one year. 2. 377 read with Section 511 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000, in default thereof to further undergo rigorous imprisonment for a period of one year. 3. 201 IPC To undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500, in default thereof to further undergo rigorous imprisonment for a period of six months. All the sentences were ordered to run concurrently. Criminal Appeal No. 380-DB of 2006 3 The present appeal assails the impugned judgment of conviction and order of sentence. The prosecution, after framing of charge, rested its case on the following circumstances to bring home guilt of the appellant:- i) Deceased Sunny was lastly seen with the accused/appellant. This fact is brought on record in the testimony of PW.2 Tara Singh. ii) The appellant, on 9.11.2004 at about 7.30 P.M. was seen near the school i.e. the place where the dead body of Sunny, deceased, was found. This is the time when the dead body was allegedly kept at the School. This fact surfaced in the deposition of PW.3 Mahabir Singh duly corroborated by PW.1 Prem Singh. iii) In pursuance of the disclosure statement Ex.PC made by the appellant on 13.11.2004, he led the police party for demarcation and identification of the spot, vide memo Ex.PD. The disclosure statement Ex.PC and the memo of demarcation Ex.PD are witnessed by PW.5 Kanwar Bhan, PW.7 Jai Singh, Assistant Sub Inspector, PW.6 Ram Kumar and PW.14 Rattan Singh, Investigating Officer. iv) The appellant made extra judicial confession to PW.5 Kanwar Bhan. Whether the prosecution has been successful to prove the Criminal Appeal No. 380-DB of 2006 4 above said circumstances and whether all the circumstances, so proved, are sufficient to hold that nobody else except the appellant had committed the offence, are the issues which we have called upon to address in the present appeal. Before we do so, it will be necessary for us to have a brief glimpse of the prosecution evidence. The medical evidence, in the present case, consists of testimony of PW.10 Dr. Vijay Pal Khanagwal, who stated that on 11.11.2004 at about 10.30/10.45 A.M., he had conducted autopsy on the dead body of Sunny, a child aged about 4 years and deposition of PW.12 Dr. Pawan Kumar, Medical Officer, Community Health Center, Samalkha, discloses that he, on 13.11.2004, had medicolegally examined the appellant-Satbir Singh, aged about 17 years. He stated that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. This Court need not to divulge medical evidence, in detail, as neither the same has been made bone of contention nor any worthwhile argument has been addressed by both the sides on this part of evidence. Suffice it to say that it has come in evidence that there was ligature mark on the neck of the deceased and his anus contained faecal matter. The medical evidence proved on record that the cause of death of deceased Sunny was due to constriction of neck caused by means of strangulation with ligature and the same was ante mortem and was sufficient to cause death. It was further opined by the doctor that the death, in this case, was instantaneous and the probable time that elapsed between the death and autopsy was between 24 to 48 hours. The medical evidence, on record, in no way proves commission of Criminal Appeal No. 380-DB of 2006 5 offence of sodomy. PW.1 Prem Singh, complainant, filed a complaint Ex.PA, gist of which has already been noticed above. He stated that his brother PW.3 Mahabir Singh told him that on 9.11.2004 at about 8.00 P.M., he saw the present appellant Satbir Singh coming from the side of school. PW.2 Tara Singh stated that on 9.11.2004, he along with Sewa Singh had seen the accused along with Sunny (since deceased) coming from the side of school and going towards open plot having ditches. PW.3 Mahabir Singh stated that he had gone to ease himself out on 9.11.2004 at about 7/7.30 P.M. and he saw the accused coming from the side of school. He further stated that he disclosed this fact to his brother PW.1 Prem Singh. PW.5 Kanwar Bhan has deposed regarding the appellant having made extra judicial confession to him on 13.11.2004 at about 6/6.15 A.M. PW.6 Ram Kumar is the attesting witness to the demarcation/identification of the spot. The evidence of various witnesses, who had advanced the investigation can also be briefly recapitulated. PW.4 Ranbir Singh proved scaled site plan of the spot as Ex.PB. PW.8 Ram Chander, Constable, tendered into evidence his affidavit Ex.PH to prove link evidence. PW.9 Ashok Kumar and PW.13 Isham Singh, Constables, had taken the dead body of the child to the Civil Hospital, Panipat, for autopsy. PW.7 Jai Singh, Assistant Sub Inspector, had recorded the statement Ex.PA of the complainant and thereafter had sent the same to the Police Station for registration of the case. He had also conducted Criminal Appeal No. 380-DB of 2006 6 inquest proceedings and also was a witness to the arrest of the accused and to the sufferance of the disclosure statement Ex.PC by the appellant. Thus, he had partly investigated the case, whereas PW.14 Rattan Singh, Inspector, proved various facets of investigation. The prosecution examined PW.11 Kamla Devi, Incharge, Government Primary School, Jagsi, Sonepat, where the appellant was firstly admitted as a student and proved on record the certificate Ex.P1 on the basis of entry made in the school register. She also proved date of birth of the appellant as 15.3.1986. After the prosecution has closed its evidence, statement of accused, under Section 313 Cr.P.C., was recorded and all the incriminating evidence was put to him. He denied the same and pleaded innocence. However, no witness was examined by him in defence. We have heard Mr. S.S. Sandhu, Advocate, appointed as an Amicus Curiae and Mr. Sandeep Vermani, Additional Advocate General, Haryana. We are conscious that Hon’ble the Apex Court in Gopi Nath Ghosh v. State of West Bengal 1984 (Suppl.) Supreme Court Cases 228 has laid a mandate that where the age of appellant is hovering 18 years, the Court should hold an inquiry to determine the claim of juvenility of the accused. Equally this duty has been cast upon the prosecution. In the present case, the prosecution, by examining PW.11 Kamla Devi, Incharge, Government Primary School, Jagsi, Sonepat, had proved on record the certificate Ex.P1 wherein the date of birth of appellant is recorded as 15.3.1986. Furthermore, Rule 12(3) of the Criminal Appeal No. 380-DB of 2006 7 Juvenile Justice (Care and Protection of Children)Rules, 2007 (hereinafter referred to as “the Rules”) laid a procedure which is to be followed for determination of the age. This Rule specifically states that where the matriculation or equivalent certificate is not available, the date of birth from the school first attended is to be taken into consideration for determination of the age. Thus, rightly Mr. S.S. Sandhu, Amicus Curiae, being aware of the Rules and provisions of the Juvenile Justice (Care and Protection) Act, 2000 (hereinafter referred to as “the Act”), has not raised the claim of juvenility of the appellant in view of certificate Ex.P1, which contains date of birth of accused/appellant. The evidence of last seen emerged in the testimony of PW.2 Tara Singh. He stated in the Court that on 9.11.2004, he along with Sewa Singh had gone to Samalkha Mandi and at about 1.00 P.M. when they were going to the village near the school they had seen the appellant along with Sunny (since deceased) coming from the school side and going towards the circular road (phirni) where there was open plot with ditches. This witness further stated that on 10.11.2004, he came to know that the dead body of Sunny was found in the school. According to this witness, he had disclosed this fact to the villagers sitting with him on 9.11.2004 itself. His statement was recorded by the police on 12.11.2004. In cross-examination, this witness stated that on 10.11.2004, the police met him in the school and he had not disclosed this fact to the police. This admission made by the witness, in his cross- examination, is sufficient to discard his testimony. If he had seen Sunny going with the accused on 9.11.2004 at about 1.00 P.M. and in the evening had disclosed this fact to the villagers, in all probabilities that Criminal Appeal No. 380-DB of 2006 8 information ought to have been relayed to PW.1 Prem Singh, aggrieved man/complainant, but in statement Ex.PA made to the police there is no mention of this fact. Furthermore, statement Ex.PA was recorded on 10.11.2004 at about 10.30 A.M. On 10.11.2004, according to the witness, the police was in the village and he had met the police but had not disclosed this fact. Thus, it will not be safe for us to rely upon the testimony of this witness to hold that he had last seen the deceased child with the accused. His conduct, in itself is sufficient to ignore his testimony. We are not able to comprehend as to why for two days, this witness remained silent and the fact of last seen surfaced for the first time in his statement recorded by the police on 12.11.2004. We have also to examine the evidence of PW.3 Mahabir Singh, who stated that on 9.11.2004 at about 7.30 P.M. he had gone to ease himself and at that time, he had seen the accused coming from the school wherefrom in the morning of 10.11.2004, the dead body of Sunny (since deceased) was recovered. According to this witness, he had disclosed this fact to his brother on 9.11.2004. PW.1 Prem Singh, in his cross-examination, stated that “Mahabir Singh had told me about the same before we met the police party.” That being so, this fact ought to have surfaced in the statement Ex.PA made by PW.1 Prem Singh to the police. Furthermore, from the evidence of extra judicial confession, we are not aware as to at what time the dead body of Sunny was kept in the school. Delay in divulging the information to the police that the accused was seen near the school in the evening of 9.11.2004 is sufficient not to place reliance upon this part of the evidence. Criminal Appeal No. 380-DB of 2006 9 Furthermore, mere fact that the accused was loitering around the place wherefrom the dead body of Sunny was recovered is not sufficient to infer that he was the one who had committed the crime. The third incriminating circumstantial evidence against the accused relied by the prosecution that he had made a disclosure statement Ex.PC to the police and on the basis thereof, he led the police party for demarcation and identification of the spot, need not to engage our attention as the trial Court has rightly rejected this piece of evidence by giving the following well reasoned finding:- “28. However, it may be observed here that inculpatory parts of disclosure statement Ex.PC being confessional statement made to the police officer are inadmissible in evidence in view of Section 25 of the Evidence Act, 1872. Reference in this regard may be made to Pulukuri Kottaya vs. R.AIR 1947 PC 67. No recovery was made from the pits allegedly identified by the accused as the place of commission of the offences of attempt to commit sodomy and murder. The place of disposal of the dead body was admittedly already known to the police. Therefore, disclosure statement Ex.PC is not protected under Section 27 of the Indian Evidence Act, 1872 and place identification memo Ex.PD is also of no evidentiary value. Reliance in this regard may be placed on the observation in Charat Alias Sunda Vs. State of Haryana 2005 (2) RCR Criminal Appeal No. 380-DB of 2006 10 (Criminal) 8 (Punjab and Haryana High Court and Vinod Kumar Vaidh Vs. State 1992 Criminal LJ 3674 (Delhi High Court).” Having discarded three pieces of evidence i.e. (a) accused seen last with the deceased, (b) accused was last spotted at the place of occurrence and (c) demarcation and identification of the spot, by the accused in pursuance of his disclosure statement Ex.PC, we are left only with the evidence of extra judicial confession made by the appellant to PW.5 Kanwar Bhan. To examine this piece of evidence, it will be necessary for us to notice the law as it emerged in judicial pronouncements regarding appreciation of evidence of extra judicial confession. It is held by Hon’ble the Apex Court in Velayuda Pulavar v. State By Sub Inspector of Police 2009 (14) Supreme Court Cases 436 as under:- “It is well settled that conviction can be recorded solely on the basis of the extra judicial confession if it is found to be credible and worthy of acceptance.” In Chattar Singh and Another v. State of Haryana 2008(4) Recent Criminal Cases 133, it was held as under:- “18. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been Criminal Appeal No. 380-DB of 2006 11 made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.” The above said view received further amplification and elaboration in Aftab Ahmad Anasari v. State of Uttaranchal 2010 (1) Criminal Appeal No. 380-DB of 2006 12 Recent Criminal Reports 832 wherein their Lordships held as under:- “15...Though extra judicial confession is considered to be a weak piece of evidence by the courts, this Court finds that there is neither any rule of law nor of prudence that the evidence furnishing extra judicial confession cannot be relied upon unless corroborated by some other credible evidence (emphasis supplied). The evidence relating to extra judicial confession can be acted upon if the evidence about extra judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused. In State of U.P. vs. M.K. Anthony AIR 1985 SC 48, this Court, while explaining the law relating to extra judicial confession, ruled that if the word spoken by the witness are clear, unambiguous and unmistakable one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction...” Criminal Appeal No. 380-DB of 2006 13 On the yardsticks and parameters laid to appreciate the evidence of extra judicial confession we are firmly of the view that in the present case, testimony of PW.5 Kanwar Bhan to the effect that the appellant had made extra judicial confession, can be made sole basis to uphold the conviction and sentence awarded upon the appellant. To borrow the phrase from Aftab Ahmad Anasari’s case (supra), there was no earthly reason for PW.5 Kanwar Bhan to come to the Court and depose falsely about the extra judicial confession made by the appellant. Except the bald suggestion made that some payment was to be made by the appellant to the wife of the witness, nothing has been brought on the record to impeach the credibility of this witness. PW.5 Kanwar Bhan is husband of a Sarpanch of the village. That being so, he enjoys status in small village. He is an independent witness. He is one of the respectable persons of the village, who wielded influence with police. Nothing has been brought on record either to shake the credentials of this witness or to say that his antecedents were such that he should not be believed. From the re-appreciation of evidence we find that implicit reliance can be placed upon the testimony of this witness as nothing has been brought on the record that he was having inimical terms with the appellant. Being the husband of a Sarpanch of the village there was every reason for the appellant to confide in this witness. Furthermore, immediately after the extra judicial confession was made, this witness accompanied the appellant to produce him before the police. The appellant stated in his extra judicial confession that he took the child to the pits and there he made an attempt to commit sodomy and due to the shrieks raised by the child he was strangulated. This part of the Criminal Appeal No. 380-DB of 2006 14 evidence is duly corroborated by the medical evidence as, while conducting post mortem examination on the dead body of Sunny (since deceased), PW.10 Dr. Vijay Pal Khanagwal stated that the clothes and body of the deceased were smudged with sand. Furthermore, the factum of strangulation also lent due corroboration to the extra judicial confession made by the appellant. Thus, the evidence of PW.5 Kanwar Bhan suffers from no infirmity and according to us is of sterling quality to hold that the same is solely sufficient to sustain conviction and sentence awarded upon the appellant. That being so, we find no reason to cause interference in the present appeal and hence, the same is hereby dismissed. The impugned judgment of conviction and order of sentence, passed by the trial Court, are upheld. On a parting note, we commend the able assistance rendered by Mr. S.S. Sandhu, Amicus Curiae. As a young budding lawyer, he has done ample justice to the brief assigned to him and hence, we direct the Legal Services Committee of this Court to pay him the fee as per the norms. (Jasbir Singh) (Kanwaljit Singh Ahluwalia) Judge Judge November 18, 2011 “DK”