Crl. Appeal No. 226-DB of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 226-DB of 2007 Date of Decision : February 06, 2009 Karan Singh .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Vinod Ghai, Advocate for the appellant. Mr. Kulvir Narwal, Addl. A. G., Haryana. * * * L. N. MITTAL, J. : This is appeal by convict Karan Singh impugning judgment and order dated 08.02.2007 passed by learned Additional Sessions Judge, Bhiwani thereby convicting the appellant under Section 302 of the Indian Penal Code ( in short – IPC) and sentencing him to undergo life imprisonment and to pay fine of Rs.25,000/- and in default, to undergo further rigorous imprisonment for three years. It was also ordered that out of the fine amount, 90% amount shall be payable to legal heirs of deceased Smt. Raj in equal shares as compensation under Section 357 (4) of the Code of Criminal Procedure (in short – Cr.P.C.). Crl. Appeal No. 226-DB of 2007 2 Prosecution case is as under :- On the night between 06/07.01.2005, Kalia co-accused of the appellant (since declared Proclaimed Offender) caught Smt. Raj in his grip and the appellant Karan Singh put a rope around her neck and dragged her. Raj being divorcee was residing in her parental Village Samaspur in the fields separately from her mother Maya Devi. Noise of Raj attracted her mother Maya Devi and sister Birma Devi, who had gone to irrigate the field. They tried to save her, but Kalia pushed Maya Devi. They raised alarm, but no body was attracted. Raj was killed at the spot. Being scared, Maya Devi and Birma Devi kept hiding in the bushes and in the morning, Maya Devi reported the matter to the police by making statement Ex.P-1 to SI Rajesh Kumar, Station House Officer of Police Station Dadri. However, in the said statement, Maya Devi and Birma Devi were not mentioned as eye- witnesses. It was rather mentioned that on coming to know that dead body of Raj was lying in the field, Maya Devi along with her son Hari Om went there and saw the dead body. There were marks of dragging in the wheat field. Contusion mark on the neck was also visible. Raj had been killed by throttling. Maya Devi firmly suspected that Kalia and Karan Singh had killed Raj. Motive for the same was that 3-4 days earlier, both the accused had a quarrel with the deceased and had then threatened to kill her. SI Rajesh Kumar made endorsement on the statement and sent it to the Police Station, where on its basis, FIR Ex.P-2 was registered. The spot was got photographed. A pair of chappals found at the spot was seized vide memo Ex.P-22. Rough site plan Ex.P-25 was prepared. Inquest Report Ex.P-21 was prepared. The dead body was sent for autopsy along with request Ex.P-20. Dr. U. S. Dasodia conducted post-mortem examination on the dead body on 07.01.2005 itself. Ligature mark was present around the neck except left occipital region. Echymosis was seen on dissection. Stool and Crl. Appeal No. 226-DB of 2007 3 urine had been passed. Many organs were found congested. Cause of death was opined to be asphyxia caused by strangulation and sufficient to cause death in ordinary course of nature. Ligature mark and injuries were ante- mortem within few minutes before death. On 18.02.2005, statements of Maya Devi and Birma Devi were recorded as eye-witnesses. On the same day, statement of one Omkar Singh was recorded to the effect that on 04.01.2005, the appellant was addressing the deceased as prostitute and proclaiming that he would kill her within 2-3 days. The appellant was having illicit relations with the deceased. Scaled site plan was got prepared. Appellant was arrested on 24.06.2005 by ASI Raghbir Singh. However, appellant's co-accused Kalia could not be arrested and was declared as Proclaimed Offender. On completion of investigation, the appellant was sent for trial. Charge under Section 302/34 IPC was framed against the appellant. He pleaded not guilty and claimed trial. In support of its case, the prosecution examined nine witnesses. HC Bansi Dhar (PW-1) stated that he recorded formal FIR Ex.P-2 and sent special report. Inderjit Singh (PW-2) stated that he had photographed the place of occurrence including the dead body. Maya Devi (PW-3) and Birma Devi (PW-4) have broadly stated according to the prosecution version that they had seen the appellant and Kalia killing the deceased by strangulation with rope. They also stated about motive. Laxman Dass Patwari (PW-5) stated that he prepared scaled site plan Ex.P-18. ASI Raghbir Singh (PW-6) stated that he arrested the appellant on 24.06.2005. The appellant made disclosure statement about concealment of the rope used in the crime, but no recovery was effected in pursuance thereof as the appellant kept on changing his statement. Dr. U. S. Dasodia (PW-7) stated about post-mortem examination conducted by him on the dead body of the deceased. Omkar Singh (PW-8) stated about threat being extended by the appellant on Crl. Appeal No. 226-DB of 2007 4 04.01.2005 to kill the deceased within 2-3 days. SI Rajesh Kumar (PW-9) stated about investigation of the case conducted by him. The appellant in his examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged false implication due to political rivalry and party-faction in the village. Some documents were tendered by the appellant in his defence. Learned Additional Sessions Judge, Bhiwani, vide his impugned judgment and order dated 08.02.2007, convicted and sentenced the appellant as already noticed herein above. Feeling aggrieved, the convict Karan Singh has preferred this appeal. We have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant vehemently contended that eye-version account of Maya Devi and Birma Devi came for the first time on 18.02.2005 i.e. six weeks after the occurrence and has, therefore, also been disbelieved by the trial court. It was also pointed out in this context that these two witnesses claimed to have gone to the field for irrigating the same, but Maya Devi stated in cross-examination that they got their land cultivated on batai and their neighbour Khazan cultivated it. It was also argued that if these two witnesses, who are mother and sister respectively of the deceased, had seen the occurrence, their post-occurrence conduct is very unnatural because the occurrence had taken place during night and they reported the matter to the police next day at 01:00 P.M. It was also submitted that there is abadi at some distance from the place of occurrence and it is improbable that nobody was attracted when the two witnesses raised alarm at the time of occurrence. Birma Devi also did not accompany Maya Devi to lodge FIR. It was also submitted that mere motive is not sufficient to convict the appellant and only suspicion against the appellant Crl. Appeal No. 226-DB of 2007 5 and Kalia was expressed in the FIR. Learned counsel for the appellant also contended that Maya Devi has admitted that the deceased was of loose character and even Omkar Singh (PW-8) has stated that the appellant was having illicit relations with the deceased. It was argued that the appellant has been implicated on account of the same and in fact, there is no evidence to prove his guilt. Learned State counsel, on the other hand, emphatically contended that the appellant as well as his co-accused Kalia were named in the FIR itself. Some delay in lodging the FIR was because both the witnesses being females were scared during the night when within their sight, the appellant and his co-accused Kalia murdered Raj. It was also argued that eye-version account given by Maya Devi and Birma Devi is reliable. Delay in stating the said account during investigation was because they came to know of the distorted version mentioned in the FIR when they received copy of FIR on 26.01.2005, as stated by Birma Devi (PW-4), and thereafter, they approached Superintendent of Police (SP), who also initially did not take any action because the appellant, along with Member Legislative Assembly, had met the SP. Thereafter, with change of SP, the complainant party again approached him and thereafter, on 18.02.2005, correct statements of these witnesses were recorded by the police. It was submitted that the main Investigating Officer – SI Rajesh Kumar did not conduct fair investigation and was inclined favourably towards the appellant. To buttress this submission, it was pointed out that although the appellant had been named in the FIR on 07.01.2005 itself, still SI Rajesh Kumar did not even join him in investigation nor interrogated him, much less arrested him. As another limb of the same argument, it was submitted that even after eye-version account was stated by Maya Devi and Birma Devi on 18.02.2005, the appellant was not arrested by SI Rajesh Kumar. On the other hand, ASI Raghbir Singh, to whom investigation was handed over Crl. Appeal No. 226-DB of 2007 6 subsequently, arrested the appellant on 24.06.2005 only i.e. more than 5 ½ months after the registration of FIR and more than four months even after the eye-version account was stated on 18.02.2005. Learned State counsel also contended that motive for the occurrence is proved from the statements of Maya Devi (PW-3) and Birma Devi (PW-4) and Omkar Singh (PW-8). Their statements also reveal that 3-4 days prior to the occurrence, the appellant and his co-accused Kalia had threatened the deceased to kill her. It was lastly submitted that there was no reason for false implication of the appellant, who was not only Sarpanch at the time of the occurrence, but was also subsequently elected as Sarpanch. The defence version that the appellant was falsely implicated at the instance of his opponent Jai Bhagwan, who had twice contested and lost election of Sarpanch against the appellant, is unacceptable because the complainant party would not implicate the appellant-Sarpanch merely at the asking of his opponent. It was also pointed out that Maya Devi has stated that the deceased was of loose character only because of the appellant himself, who got her paraded in the village while wearing pyzama, while the appellant was Sarpanch. We have carefully considered the rival contentions and we find force in the submissions of learned State counsel, whereas arguments on behalf of the appellant are not acceptable. It is well established on record that SI Rajesh Kumar had not conducted the investigation properly and he was favourably inclined to the appellant and therefore, spoiled the case. Detailed reasons have been recorded by learned trial court in paragraph 19 of its judgment manifesting that the appellant had influence over the police. We agree with the said reasoning of the trial court which is also apparent from the contentions advanced by learned State counsel, as noticed herein above. There were marks of dragging the deceased as mentioned in the inquest report, but still SI Rajesh Kumar did not depict the said marks in the Crl. Appeal No. 226-DB of 2007 7 rough site plan Ex.P-25 prepared by him. He also did not avail of the services of dog squad or crime team of the Forensic Science Laboratory. Shutter of shop, where the deceased used to reside, had also been broken, but the Investigating Officer did not care to get the same photographed nor mentioned the same anywhere in the investigation proceedings. Therefore, the complainant cannot be made to suffer for the lapse of the Investigating Officer. The appellant was named in the FIR. There was motive for the appellant to commit the crime. The appellant had also threatened to eliminate the deceased. There is also no reason for false implication of the appellant, who being Sarpanch of the village, was an influential person. On the other hand, the complainant is a widow having seven daughters and only one son, who is also simpleton. The deceased was also a divorcee and was living alone in the house (shop) in the fields in her parental village. The complainant, who is mother of the deceased, also would not have named the appellant falsely so as to allow the real culprit to go scot-free. For the same reason, Birma Devi would also not have implicated the appellant falsely. Nobody was attracted to the spot at the time of occurrence being winter night and also because abadi was at some distance from the spot. Maya Devi and Birma Devi have also stated the reason for the quarrel of the deceased with the appellant and his co-accused, 3-4 days prior to the occurrence. The appellant owed Rs.47,000/- to the deceased as price of a buffalo and the quarrel arose on account of non-payment of the said amount by the appellant. Both Maya Devi and Birma Devi have stated about the same. Their statements that the appellant had threatened to eliminate the deceased at that time, are corroborated by the testimony of independent witness Omkar Singh (PW-8). It was suggested to him in cross-examination that he was deposing falsely against the appellant because the appellant as Sarpanch had issued some notice to him (PW-8) and his brothers regarding Crl. Appeal No. 226-DB of 2007 8 encroachment on Panchayat land. However, there is no defence evidence to this effect. Omkar Singh is thus an independent witness and there is no ground to discard his testimony. The Court also cannot be oblivious of the fact that the complainant Maya Devi, who is mother of the deceased, is a widow and illiterate rustic villager, whereas the deceased was divorcee. On the other hand, the appellant is an influential person and was Sarpanch at the time of occurrence. The complainant named the appellant and his co-accused Kalia in the FIR itself. However, distorted version was recorded in the FIR and when the complainant party received copy of FIR on 26.01.2005 (as stated by Birma Devi PW-4), they learnt of the same and then they approached the Superintendent of Police (SP), who also did not take any action because the appellant, along with Member Legislative Assembly, had met the SP. Thereafter, with change of SP, the complainant party again approached the new SP and it was only thereafter that on 18.02.2005, correct statements of Maya Devi and Birma Devi were recorded. The appellant was so much influential that even thereafter, he was not arrested for more than four months and in fact, SI Rajesh Kumar did not arrest him and the next Investigating Officer ASI Raghbir Singh arrested the appellant on 24.06.2005. The appellant had been named in the FIR on 07.01.2005, but still SI Rajesh Kumar did not even join him in investigation and did not interrogate him, what to talk of arresting him. The statements of Maya Devi and Birma Devi, therefore, cannot be discarded in view of the manner in which SI Rajesh Kumar was conducting the investigation from the very beginning. The defence version that the appellant has been falsely implicated at the instance of his opponent Jai Bhagwan, who twice contested and lost election of Sarpanch against the appellant, is not substantiated at all. Moreover, the complainant party would not have Crl. Appeal No. 226-DB of 2007 9 implicated the appellant merely at the asking of his opponent, particularly because the complainant party is a weak party, whereas the appellant is a strong influential person. The appellant as Sarpanch also got paraded the deceased in the village while wearing pyzama. Keeping in view all the circumstances, false implication of the appellant is reasonably ruled out. For the reasons recorded herein above, we find that the conviction of the appellant is well founded. Consequently, there is no merit in the instant appeal and the same is hereby dismissed. The appellant, if on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining sentence. ( L. N. MITTAL ) JUDGE February 06, 2009 ( MEHTAB SINGH GILL ) monika JUDGE