Crl. Appeal No. 39-DB of 2001. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 39-DB of 2001. Date of Decision : 18.09.2009. Manoj (1) ...... Appellant Versus State of Haryana ......Respondent Crl. Appeal No. 62-DB of 2001. Date of Decision : 18.09.2009. Dinesh Kumar ...... Appellant (2) Versus State of Haryana ......Respondent Crl. Appeal No. 395-DB of 2001. Date of Decision : 18.09.2009. Mukesh Kumar ...... Appellant (3) Versus State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. B.S. Saroha, Advocate, Mrs. Anju Arora, Advocate, for the appellants. Ms. Navin Malik, Addl. AG Haryana for the respondent-State. NAWAB SINGH J. This judgment would dispose of Crl. Appeal No. 39- DB of 2001, Crl. Appeal No. 62-DB of 2001 and Crl. Appeal No. 395-DB of 2001 as they have been filed against a common judgment of conviction Crl. Appeal No. 39-DB of 2001. 2 dated September 15th, 2000 and order of sentence dated September 18th, 2000 passed by Additional Sessions Judge, Sonepat whereby above named accused-appellants were convicted and sentenced as under:- Offence Sentence Fine In default u/S 302 IPC Life imprisonment Rs. 10000/- RI for 3 years u/S 392 IPC Seven years Rs.5000/- RI for 2 years The sentences were ordered to run concurrently. 2. Hari Om (deceased) was a driver on car No. DHE-3836 owned by Partap Singh (PW-18). He used to ply it as a taxi from Taxi stand, Bhiwani. On August 10th, 1998, Hari Om along with his brother Sumer Singh (PW-13) came to Taxi Stand Bhiwani. At about 9 AM, Manoj, Dinesh Kumar and Mukesh Kumar accused-appellants came to Taxi Stand and hired the car of Hari Om to go to Sonepat. The accused were known to Sumer Singh. Hari Om did not return. Sumer Singh kept on waiting for him upto August 12th, 1998. A search was made but no clue was found about his whereabouts. On August 13, 1998 Sumer Singh went to Partap Singh and asked about the whereabouts of Hari Om. Partap Singh informed him that since Hari Om did not return, he was also worried. On the same day, Sumer Singh went to the village Thana Kalan to which all the accused belonged to inquire about Hari Om but he was informed that all of them were absent from village for 3-4 days. 3. On August 13th, 1998 Sibban resident of village Jaunpur and Rakesh Sarpanch of Gram Panchayat Jaunpur informed Daya Chand, Assistant Sub-Inspector (PW-5) Police Station Rai, District Sonepat that a dead body of a male was lying in sugarcane field near Yamuna Bandh in the Crl. Appeal No. 39-DB of 2001. 3 revenue estate of village Jaunpur. On the basis of the said information, Daily Diary Report (Exhibit PG/2) was recorded. 4. Daya Chand (PW-5) reached the spot. Inquest (Exhibit PK) was held. The dead body was brought to PGIMS, Rohtak for Post- Mortem examination. Spot was got photographed. 5. On August 14th, 1998, Sumer Singh learnt that a dead body was recovered from the fields situated in revenue estate of village Jaunpur, District Sonepat and the dead body was brought to PGIMS, Rohtak from village Jaunpur. To inquire, he came to PGIMS, Rohtak and identified the dead body to be of his brother from the clothes worn by him because the dead body was mutilated. Sumer Singh made his statement (Exhibit PK) to Ram Avtar, Assistant Sub-Inspector (PW-6). He made his endorsement (Exhibit PK/1). On the basis of which, First Information Report (Exhibit PK/2) was recorded. In his statement, Sumer Singh suspected that his brother was killed by above named accused and the dead body thrown in the fields in the area of village Jaunpur and the accused had taken the car. 6. On August 15th, 1998 Police of Police Station Bhutana, District Karnal received a secret information that the accused were present at Tarawari and trying to dispose of the car No. DHE-3836. The Police intercepted and arrested all the accused along with the car. Personal search of Mukesh-accused was conducted and he was found having a country- made pistol. The Car Registration Certificate, Insurance Policy were taken into possession vide recovery memorandum (Exhibit PA). Case bearing First Information Report No.445 was registered against all the accused in Police Station Bhutana. Crl. Appeal No. 39-DB of 2001. 4 7. All the accused were interrogated. Manoj Kumar, Dinesh Kumar and Mukesh Kumar made disclosure statements (Exhibit PC, PD and PE respectively). The gist of the disclosure statement was that on August 10th, 1998 all of them hired the car of Hari Om to go to Sonepat. On the way, Dinesh Kumar and Mukesh Kumar put a 'Parna' (a piece of cloth) around his neck and Manoj gave a danda blow on the head of Hari Om and murdered him. The dead body was thrown in the sugarcane field in the area of village Jaunpur. Mukesh took away Rs.700/- and driving licence of Hari Om from his pocket. It was also disclosed by them that the danda which was allegedly used in the commission of the crime, a tiffin box and the driving licence of Hari Om was concealed by them in the sugarcane field near the dead body and they could get these items recovered. 8. On August 16th, 1998 the accused were arrested by Sube Singh, Inspector (PW-15) in this case. On August 18th, 1998 all the accused led the Police party headed by Abhey Singh Deputy Superintendent of Police, Sonepat to the spot. Manoj Kumar accused got recovered the danda which was taken into possession vide recovery memorandum (Exhibit PC/1). The tiffin on which name of Sumer Singh (PW-13) brother of Hari Om was engraved and the driving licence of Hari Om were got recovered by Dinesh Kumar and Mukesh Kumar accused from the sugarcane field. Both the articles were taken into possession vide recovery memorandum (Exhibit PD/1). 9. Post-Mortem Examination on the dead body of Hari Om was conducted by Dr. P.K. Paliwal (PW-9). The Medical Officer opined that the body was emitting foul smell. Maggots were crawling all over the body. Crl. Appeal No. 39-DB of 2001. 5 Epidermis had peeled off. There was de-gloving of right foot, phalanx were exposed and eaten away by maggots. Skull was devoid of scalp. Facial bones were exposed. Mandible was devoid of skin. Face was disfigured. Neck, strictures were missing. Left lower leg was missing. No bony injury was found. The Medical Officer could not clearly make out the time elapsed between the death and the post-mortem examination because in his examination-in-chief, he firstly, opined that the time elapsed between death and the post-mortem examination was between 1-2 weeks but when he clarified it, he stated that it could be less than 1 week but not more than two weeks and in cross-examination, he deposed that death could have occurred five days prior to the post-mortem examination. 10. On completion of the investigation and other formalities, the accused was sent up for trial. 11. The accused-appellants were charged under Sections 302 and 392 read with Section 34 IPC. They pleaded not guilty and claimed trial. 12. In support of its case, prosecution examined nineteen witnesses in all viz Rajbir (PW-1), Tilak Raj (PW-2), Jai Parkash, Head Constable (PW-3), Yashpal (PW-4), Daya Chand, Assistant Sub-Inspector (PW-5), Ram Avtar, Assistant Sub-Inspector (PW-6), Hawa Singh (PW-7), Satya Parkash, Head Constable 9PW-8), Dr. P.K. Paliwal (PW-9), Abhey Singh (PW-10), Balwan Singh, Constable (PW-11), Hawa Singh Constable (PW-12), Sumer Singh (PW-13), Ajit Singh MHC (PW-14), Sube Singh, Inspector (PW-15), Rakesh Tyagi (PW-16), Jai Parkash, Sub-Inspector (PW-17), Partap (PW-18) and Baljit Singh (PW-19). Crl. Appeal No. 39-DB of 2001. 6 13. In their examination recorded under Section 313 of the Code of Criminal Procedure, the accused denied their complicity and pleaded innocence. 14. The evidence on record, material circumstances of the case and the arguments addressed by learned counsel for the appellant and learned counsel for the State have been appraised. 15. The disclosures made by accused, in so far as they are confessional in nature are to be kept out of consideration. However, the part of disclosures which led to the recovery of tiffin box, driving licence and danda shall be admissible piece of evidence under Section 27 of the Evidence Act. 16. There being no eye witness of the crime, the prosecution case is based on circumstantial evidence. The recovery of articles belonging to the deceased were at the instance of accused. Name of the brother of the deceased “Sumer Singh” was engraved on the tiffin box. The driving licence of the deceased excludes the possibility of any doubt regarding the identity of the articles. The presumption is that a person acts honestly unless the contrary is established and that presumption would embrace squarely the acts done by the Police officers in discharge of their public duties. The investigation was done sincerely by an officer of the rank of Inspector who could have no possible motive for having a bias against the accused. Simultaneously, the statements of the witnesses of disclosures (Exhibits PC, PD and PE), namely, Jai Parkash, Head-Constable and Dharampal, Head Constable and the recoveries, namely, tiffin box, driving licence made by the accused are thoroughly consistent. No such material Crl. Appeal No. 39-DB of 2001. 7 discrepancy could creep in as could shake their credence. So, the first circumstance of recovery of articles of the deceased from the accused stands established. Then there is the recovery of the danda used as weapon of offence. 17. Above all, there is evidence of impeccable nature about the recovery of the car. The car belonged to the deceased and was being plied as a taxi from Taxi Stand, Bhiwani. There is definite evidence that all the accused hired the car as taxi. Here the evidence coming forth from Sumer Singh (PW-13) assumes great importance because the accused were known to him and there was no scope for mistaken identities. Again, Sumer Singh (PW-13) could have no motive to falsely implicate the accused. There was no enmity between the deceased or his family on the one hand and the accused on the other hand. Sumer Singh lost his brother Hari Om when he was in his prime. He would be the last person to let the real culprit scot-free and implicate the accused falsely. Statement of Sumer Singh makes a convincing reading and is more than sufficient to establish all the important circumstance of “last seen” for, deceased was never seen alive after that by anyone. His dead body was detected in the sugarcane field on August 13th, 1998. The time of death synchronized with the date and time of hiring of the car by the accused. 18. The chain of circumstances does not end here. Accused were apprehended on August 15th, 1998 with the car in question in the area of Tarawari, Police Station Bhutana, District Karnal. The scenario which thus emerges is that the car was hired by the accused on Augsut 10th, 1998 from Taxi Stand, Bhiwani. Deceased was the driver and his dead body was Crl. Appeal No. 39-DB of 2001. 8 found on August 13th, 1998 in the area of village Jaunpur in sugarcane field. During this period of three days, accused were roaming about and were trying to sell the car. The accused has no answer for the pertinent question how the car came to be possessed by them. After the deceased was last seen in the company of the accused, it was for them to explain what happened subsequently. Instead of furnishing a probable explanation, accused even harped on the plea that they have been implicated falsely. 19. There is thus, a complete and unimpeachable chain of circumstances against the accused which unerringly points towards their guilt and cannot be in consonance of any other hypothesis. 20. The evidence and circumstances were correctly marshaled by learned trial Judge in arriving at the finding of guilt against the accused-appellants. 21. For the reasons recorded supra, this Court does not find any infirmity in the impugned judgment. Thus, the appeals are dismissed. 22. Appellants were released on bail by this Court during the pendency of the appeal. Their bail/surety bonds are cancelled. They be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith under intimation to this Court. (NAWAB SINGH) (K.S. GAREWAL) JUDGE JUDGE 18.09.2009. SN Crl. Appeal No. 39-DB of 2001. 9