IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 419-DB of 2001 DATE OF DECISION : 19.01.2010 Ajay Kumar alias Happy .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Varinder Pal Singh, Advocate, for the appellant. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Accused Ajay Kumar alias Happy, who is in custody for the last more than 13 ½ years, has filed this appeal against the judgment and order dated 12.1.2001, passed by Sessions Judge, Patiala, in Sessions Case No. 30 of 25.7.1996, arising out of FIR No. 93 dated 3.4.1996 under Sections 302/201/377/364 IPC, Police Station Kotwali Patiala, whereby he has been convicted under Sections 364/377/302/201 IPC for the offence of kidnapping, for committing un-natural sexual inter course with the minor child and for committing his murder, and then trying to conceal the evidence by throwing the dead body of the deceased child in the bhakra canal. The accused was sentenced to undergo imprisonment for life and to Crl. A. No. 419-DB of 2001 -2- pay a fine of Rs. 5,000/-, in default to undergo further rigorous imprisonment for a period of 3 months under Section 302 IPC, to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 1,000/-, in default to undergo further rigorous imprisonment for a period of 1 month under Section 364 IPC, to undergo rigorous imprisonment for a period of 6 years and to pay a fine of Rs. 1,000/-, in default to undergo further rigorous imprisonment for a period of 1 month under Section 377 IPC and to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/-, in default to undergo further rigorous imprisonment for a period of 1 month under Section 201 IPC. All the substantive sentences were ordered to run concurrently. 2. In brief, it is the case of prosecution that deceased Sahil Hasija, aged about 8 years, went missing after 8.30 p.m. on 30.3.1996 from the front street of his house. At about 8.30 p.m. he was seen by his father Om Parkash (PW.2) playing in the street along with other children of his age. On 31.3.1996, Sham Lal (PW.6), uncle of the deceased, got recorded a DDR (Ex.PJ/1) with the police at 1 PM, to the effect that on 30.3.1996 at 8.30 p.m., Sahil Hasija, while playing in front of the house, had suddenly gone some where. He was searched by the family members in the relations also, but could not be traced till that time. He was wearing black colour pant, printed T shirt and chappals in the feet. Sham Lal stated that they have no doubt on any body. Thereafter, on 3.4.1996, Om Parkash (PW.2), the father of the child, made statement (Ex.PE) to the police, in which he had stated Crl. A. No. 419-DB of 2001 -3- that on 30.3.1996 at about 8.30 p.m., his son was playing in the street in front of the house. After about half an hour, he asked his wife to bring the child inside the house. When his wife went outside to bring the child, she did not find the child, Sahil Hasija. Thereafter, the child was searched, but no clue of his whereabouts was found. The matter with regard to the missing of his son was reported to the police on 31.3.1996 by his brother Sham Lal, but the child could not be traced. It was stated that he had definite suspicion that some unknown person has abducted his son with a view to murder him. On the basis of the said statement (Ex.PE), FIR (Ex.PE/1) was registered under Section 364 IPC. 3. On 5.4.1996, dead body of the child was seen by Sham Lal (PW.6) and Satish Kumar in the canal within the area of Mandouli. In his statement, PW.6 Sham Lal stated that on 5.4.1996, he and Satish Kumar were going from Patiala to Rajpura in connection with search of Sahil, and when they were proceeding from Ganda Kheri to Ganaur along the canal bank, they enquired from some children, who were fishing near the canal. Those children informed that they had seen the body of a child floating in the canal within the area of Mandouli. Thereupon, they proceeded to Mandouli (which was 4 Kms. away from that place) and found that the dead body of Sahil was floating in the canal. On information, the police came on the spot, the dead body was pulled out from the canal. The inquest report (Ex.PB) was prepared. The dead body was further got identified by Sham Lal (PW.6) and thereafter, the same was sent to Rajindra Hospital, Patiala Crl. A. No. 419-DB of 2001 -4- for post mortem examination. 4. On 6.4.1996 at 9.30 AM, Dr. S.S. Oberoi (PW.1) conducted post mortem examination on the dead body of Sahil Hasija. He found the following injury on the body of the deceased : Multiple small abrasions and bruises bluish in colour and oval shaped mingled with one another at places were present around the nose, ala of nose, and around the mouth. On dissection, the sub-cutaneous tissues under the bruised marks was showing haemorrhagic spots. The inner aspect of lips was showing laceration and bruises corresponding to the teeth at places. The gums were also showing bruises at places. The pleaury and both the lungs were congested. All the abdomeninal organs were congested. Anus was dilated, petulous and a tear 2 x 0.5 cm in size and going into the annel canal was present at 5' O clock position. The anus swab on mycroscopic examination showed a few known motile sperms. In the opinion of Dr. S.S. Oberoi (PW.1), the cause of death was asphyxia due to smothering, suffocation, which was ante-mortem and sufficient to cause death in the ordinary course of nature. He has proved the post mortem report (Ex.PA). Vide his opinion (Ex.PD/1), he opined that the time between death and post mortem was five to six days. In the cross- examination, he had stated that the water entered into stomach and small intestines. He denied the suggestion that there was no tear on the anus and the tear of anus was due to some disease. 5. During investigation, on 5.4.1996, the police recorded the statement of Smt. Sudarshana Rani (PW.3) wife of Sham Lal. In her Crl. A. No. 419-DB of 2001 -5- statement, she had stated that on 30.3.1996 at about 8.25 PM, she saw accused Ajay Kumar along with deceased Sahil near the turning of the bazar. When she asked him where they were going, then he told that he was going to purchase some articles for the boy. While appearing in the court as PW.3, she stated that her statement was recorded by the police on 5.4.1996. 6. During the investigation, on 8.4.1996, the police had also recorded the statement (Ex.DA) of Jatinder Kumar (PW.4) son of Sital Dass, who stated that on 30.3.1996, when he was going for a walk after 8 PM towards Sirhindi Gate Rajpura Road, Patiala, at about 8.45 PM, he saw a car bearing registration No. PBP 3303 being driven by accused Ajay Kumar. At that time, deceased Sahil was also travelling in that car. He asked accused Ajay Kumar as to where he was going, to which he replied that they were going to the house of some relative. 7. On 8.4.1996, the police had also recorded the statement of one Narinder Kumar (PW.7), who had stated that on 30.3.1996 at about 10 PM, when he was returning from Patiala to Rajpura, he had seen that a white Fiat car bearing registration No. PBP 3303 was returning from the side of village Mandouli, which was being driven at a very fast speed, and when it took a sharp turn, he avoided collision with the said car. Thereafter, the Fiat car stopped, as its engine stopped. Then he saw that it was being driven by accused Ajay Kumar, who is also known as Happy. He stated that he knew Ajay Kumar as he has some relative in Rajpura. He asked him as to why he was driving the car so rashly, to which he replied that he had to reach home Crl. A. No. 419-DB of 2001 -6- quickly on account of some domestic problem. He further stated that on 7.4.1996, he was informed by Jatinder Verma that on 30.3.1996 at 8.45 PM, he had seen Sahil Hasija in the company of accused Ajay Kumar in a car. 8. As per the prosecution version, on 16.4.1996, accused Ajay Kumar made extra judicial confession before Sham Lal (PW.6) to the effect that on 30.3.1996 at about 8.15/8.30 PM, Sahil Hasija was playing in the street outside his house. He invited him for a Kulfi and for a ride in the car, which belonged to the father-in-law of his brother Vijay Kumar. He was driving the said car towards Rajpura Patiala road via the cremation ground. He parked the car near a pipe factory, situated about 50 yards short of the GT road, and took Sahil towards nearby bushes and committed un-natural inter course with him. Thereafter, Sahil started crying and when he could not pacify him, he became apprehensive that he would be disgraced, if Sahil informs his family members about the un-natural act. Thereupon, he covered Sahil's nose and mouth with his hands, and did not remove his hands until Sahil had died. Thereafter, he put the dead body of Sahil in the car and threw it in the bhakhra canal about half Km. beyond Ganda Kheri. Sham Lal (PW.6) produced the accused before the police on 16.4.1996 and made statement to this effect to the police. Since then, the accused is in custody. 9. During interrogation, on 18.4.1996, accused suffered a disclosure statement (Ex.PF) and got recovered the black coloured pant (Ex.P1), pair of Chappal (Ex.P2 and Ex.P3) and handkerchief (Ex.P4), from an open place in the bushes, near the pipe factory, which were taken into Crl. A. No. 419-DB of 2001 -7- possession vide recovery memo (Ex.PG). The handkerchief was having the name of Sahil embroidered over it. At the time of arrest, one duplicate key was also recovered from the pocket of the accused. 10. After completion of investigation, the challan was filed against the accused and charges under Sections 364, 377, 302 and 201 IPC were framed, to which the accused did not plead guilty and claimed trial. 11. In support of its case, the prosecution examined 13 witnesses. PW.1 Dr. S.S. Oberoi conducted the post mortem examination on the dead body of Sahil Hasija and proved his Post Mortem Report Ex.PA and the inquest report Ex.PB. PW.2 Om Parkash is the father of the deceased, on the basis of whose statement Ex.PE, the FIR Ex.PE/1 was registered. He further proved the disclosure statement Ex.PF and the recovery memo Ex.PG. PW.3 Sudarshana Rani is the witness to last seen. In her cross-examination, she has admitted that she had not informed the police or any relation regarding the fact that she had seen Sahil in the company of the accused on 30.3.1996 at about 8.25 PM, till the recording of her statement by the police on 5.4.1996. PW.4 Jatinder Kumar is another witness to the last seen, who had seen the accused with the deceased in the Fiat car. PW.5 Parmodh Kumar is witness to the disclosure statement (Ex.PF) made by the accused and the recovery memo (Ex.PG). PW.6 Sham Lal is the real uncle of the deceased, who first reported the matter to the police on 31.3.1996 regarding missing of the minor child. He had first of all seen the dead body of the deceased child. The extra judicial confession was also made by the accused before Crl. A. No. 419-DB of 2001 -8- him, and he produced the accused before the police on 16.4.1996. PW.7 Narinder Kumar is alleged to have seen the accused after committing the crime on 30.3.1996 at about 10 PM, when the accused was returning in the car from the side of village Mandouli. PW.8 HC Karnail Singh is a formal witness, who was posted as MHC in the police station at the relevant time. PW.9 Constable Gurpal Singh is another formal witness, who delivered special report to the concerned officers and the Ilaqa Magistrate. PW.10 Dr. Atul Gupta examined the accused on 18.4.1998. PW.11 Balkar Singh Photographer proved the negatives and the photographs taken by him. PW.12 ASI Sadhu Ram partly investigated the matter and PW.13 SI Darshan Singh is another Investigating Officer, who took investigation from ASI Sadhu Ram on 11.4.1996 and conducted the remaining investigation in the case. 12. In his statement under Section 313 Cr.P.C., the accused denied all the allegations appearing against him in the evidence led by the prosecution. He pleaded innocence and took the plea that he was taken into custody by the police on 6.4.1996 from his house in the presence of his father and brother-in-law Vijay Kumar and he has been falsely implicated in this case on account of the property dispute between his father Jodha Ram and brothers of his father, namely Om Parkash (PW.2) and Sham Lal (PW.6). In defence, the accused examined his father Jodha Ram (DW.1). 13. The trial court, while relying upon the extra judicial confession made by the accused before Sham Lal (PW.6), recovery of the black Crl. A. No. 419-DB of 2001 -9- coloured pant, pair of Chappal and handkerchief vide recovery memo Ex.PG and the last seen evidence, convicted and sentenced the accused, as indicated above. Against the said judgment, the instant appeal has been filed by the accused. 14. Learned counsel for the appellant assailed the conviction of the appellant for the offences under Sections 302/201/377/364 IPC, recorded by the learned trial court, on various grounds. It was argued that in the instant case, the appellant, who is the son of real brother of the complainant - the father of the deceased, has been falsely implicated because of the strained relations between the brothers. The evidence of last seen relied upon by the prosecution and believed by the trial court is not at all reliable and trust- worthy. PW.3 Sudarshana Rani wife of Sham Lal and PW.4 Jatinder Kumar, who had last seen the deceased in the company of the appellant, are closely related to the complainant. They did not disclose the factum of last seen of the deceased in the company of the accused, to the complainant or to any other member of the family or to the police, in spite of the fact that Sham Lal and Om Parkash, father of the deceased admitted, had been searching for the deceased and had enquired from all their relatives. The statements of these witnesses with regard to the last seen were recorded for the first time by the police only after recovery of the dead body. Learned counsel further argued that another witness, namely PW.7 Naresh Kumar, who had allegedly seen the appellant at about 10 PM while driving the car in the area of village Mandouli, is also not reliable, as he was unknown to the accused. Learned counsel further submitted that the alleged extra judicial confession Crl. A. No. 419-DB of 2001 -10- made by the appellant to PW.6 Sham Lal, real uncle of the deceased, on 16.4.1996 is highly improbable and not reliable at all and the conviction of the appellant for the alleged offence on the basis of such weak type of evidence is not safe. Learned counsel also argued that recovery of pant, pair of Chappal an handkerchief, at the instance of the appellant on his disclosure statement on 18.4.1996, is also not reliable, as it has come in evidence that these articles are easily available in the market and had been recovered from the open area. Learned counsel further argued that the recovered articles were not got identified from the mother or any family member of the deceased, by mixing them with the other articles. Learned counsel also argued that in the instant case, as per the prosecution version, the appellant had taken the deceased at the place of occurrence in a car, which belongs to the father-in-law of his brother Vijay Kumar, but the prosecution has failed to bring any evidence to the effect that the said car was owned by the said person. The owner of the car was not examined and there is no evidence to show as to how the said car came in possession of the appellant. Learned counsel further argued that it has come in evidence that actually, the appellant was arrested on 6.4.1996 and thereafter, his extra judicial confession was concocted by showing his arrest on 16.4.1996. In nutshell, learned counsel for the appellant emphasized for the acquittal of the appellant, as the prosecution has failed to prove the alleged offence against the appellant on the basis of the circumstantial evidence. He submitted that the complete chain of circumstantial evidence has not been Crl. A. No. 419-DB of 2001 -11- established in the instant case, therefore, conviction of the appellant for the serious offences is not sustainable. 15. On the other hand, learned counsel for the respondent-State argued that in the instant case, the prosecution has led sufficient evidence, which clearly establishes that only the appellant was responsible for commission of the heinous crime in this case, therefore, his conviction for the aforesaid offences and the punishment awarded thereunder does not require any interference by this court. 16. The prosecution case is based upon circumstantial evidence. It is well settled that in a case based on circumstantial evidence, it is essential for the prosecution not only to fully establish all those circumstances, but also that all the circumstances so established should be a of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. It is further essential that those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused, and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It is also well settled that the court is not required to act upon mere surmises or suspicious circumstances to bring home the guilt of the accused. 17. If the evidence led by the prosecution is closely examined and analysed in light of the above principle, then we are of the opinion that in the instant case, the prosecution has failed to fully establish the guilt of the accused beyond a reasonable doubt. In the instant case, the homicidal death Crl. A. No. 419-DB of 2001 -12- of deceased and commission of un-natural sexual inter course with the minor child has been proved by the medical evidence led by the prosecution. But in order to connect the commission of the said offences with the appellant, only the circumstantial evidence has been relied upon by the prosecution. As per the prosecution version, the deceased was last seen in the company of the appellant, earlier by Smt. Sudarshana Rani (PW.3) on 30.3.1996 at about 8.25 PM and then by Jatinder Kumar (PW.4), at about 8.45 PM, on the same day. Both these witnesses are closely related to the deceased. Smt. Sudarshana Rani is the wife of PW Sham Lal, and complainant Om Parkash is Phupha of Jatinder Kumar. As per the statement of PW.2 Om Parkash, the deceased was last seen by him at 8.15 PM on 30.3.1996 in the street in front of his house, when he was playing with other children. After half an hour, he told his wife to bring the child inside the house and the child was not found there. Thereafter, he and his brother Sham Lal had got extensive search of the child every where, including the place of their relatives. The enquiries were made from every relative. According to PW.3 Sudarshana Rani wife of PW Sham Lal, the deceased was seen by her on 30.3.1996 at about 8.25 PM, when she was coming from bazar to her house. It is stated by her that she specifically asked the appellant where they were going. Then he told her that he was going to purchase some articles for the boy. In her cross-examination, this witness has admitted that her statement was recorded to the said effect only on 5.4.1996 and she did not inform about the said fact from 30.3.1996 to Crl. A. No. 419-DB of 2001 -13- 5.4.1996 to any person, including her family members and the police, in spite of the fact that she had come to know that Sahil Hasija was not traceable. This conduct of the witness is highly improbable. When her husband Sham Lal was actively searching for the missing child on 30.3.1996 and on the next day, he had lodged the DDR (Ex.PJ/1) to the police with regard to the missing of the child, it does not stand to reason as to why his wife does not disclose the factum of last seen to him. It is pertinent to mention that on 3.4.1996, for the second time, report was made to the police by the father of the deceased and on his statement (Ex.PE), the FIR (Ex.PE/1) was registered under Section 364 IPC. On that day also, it was not told to the police that Smt. Sudarshana Rani had seen the missing boy in the company of the appellant. 18. The second witness to the last seen is PW.4 Jatinder Kumar. This witness had allegedly seen the deceased at about 8.45 PM on 30.3.1996 in the Fiat car, which was being driven by the appellant. According to the statement of this witness, on 30.3.1996, he was walking as usual after 8 PM at Sirhindi Gate. At about 8.45 PM, when he reached Rajpura Road, Patiala, he saw the Fiat car bearing registration No. PBP 3303 being driven by the appellant and in the said car, the deceased was also travelling. He saw them in the street light. He asked the appellant where he was going, to which he replied that they were going to the house of some relative. The testimony of this witness to this effect is un-reliable and doubtful. Firstly, because this witness is closely related to the father of the deceased and he was also Crl. A. No. 419-DB of 2001 -14- residing in the same locality at a distance of about 500/700 Karams from the house of the deceased. PW.2 Om Parkash, father of the deceased, has categorically stated that after the disappearance of the child, they along with Sham Lal had extensively searched for the missing child, enquired about him every where. It does not stand to reason as to why PW.4 Jatinder Kumar did not inform the parents of the deceased about the factum of last seen of the deceased in the company of the appellant. Admittedly, the statement of this witness was recorded only on 8.4.1996, much after the recovery of the dead body. Further, the statement to the aforesaid effect made by this witness is also improbable. He had seen the deceased in the car, which was being driven by the appellant. If the car was running, how he had asked the appellant where he was going. It is not his statement that on seeing him, the appellant had stopped his car and talked to him. He has stated that he had seen the appellant and the deceased in the car in the street light. Therefore, the testimony of this witness is doubtful. 19. The third witness to the last seen is PW.7 Narinder Kumar, who is resident of Rajpura. He is alleged to have seen the appellant on 30.3.1996 at about 10 PM travelling in the Fiat car near the canal bridge, coming from the side of village