IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Murder Reference No.4 of 2011 Date of decision: July 05, 2011 State of Haryana .. Prosecutor Vs. Krishan and another .. Accused/Respondents Criminal Appeal No. 289-DB of 2011 Krishan and another .. Appellants Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice Satish Kumar Mittal Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.S. Randhawa, Addl. A.G. Haryana for the prosecutor in Murder Reference No.4 of 2011 and for the respondent in Crl. Appeal No.289-DB of 2011. Ms. Monika Jalota, Advocate for the respondents in Murder Reference No.4 of 2011 and for the appellants in Crl. Appeal No. 289-DB of 2011. *** A.N. Jindal, J This judgment shall dispose of Murder Reference No.4 of 2011 sent by the trial court for confirming the death sentence awarded to the accused- appellants as well as Criminal Appeal No. 289-DB of 2011 filed by the accused appellants against their conviction and sentence. Krishan and Murari, both accused- appellants (herein referred as, 'the accused') were prosecuted, tried, convicted vide judgment dated 24.2.2011 passed by the learned Additional Sessions Judge, Narnaul, under Sections 363/366(A), 376 (2) (g), 377, 302 read with Section 34 IPC for raping and committing murder of 9 years old child namely Sarita and sentenced as under :- Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -2- U/s 363,366A/34 IPC : Rigorous imprisonment for ten years each. U/s 376(2)(g)/34 IPC : Rigorous Imprisonment for life each. U/s 377/34 IPC : Rigorous imprisonment for ten years each. U/s 302/34 IPC : Death. Brief facts, as culled out from the report under Section 173 Cr.P.C. as well as evidence on record, are that on 29.7.2009 complainant Ranjit Singh (herein referred as, 'the complainant') a resident of village Asrawas was sleeping in the street. His minor daughter aged about 9 years namely Sarita was also sleeping with him on the same cot in front of his house. After an hour i.e. about 12.00 mid-night, when the complainant woke up to answer the call of nature, he found his daughter missing. He apprised his wife Bala, Sarvan wife of his brother Om Parkash, Kishori and Budh Ram his neighbours. Many other villagers also assembled on hearing the cries. They set to search her. Madan son of Sheobaksh and PW Sher Singh along with other 3-4 boys went in search of her towards the hill, whereas Sarvan and Bala went to the house of Sheobakesh where they found Krishan and Murari attending Chhatti ceremony being celebrated at his house. On asking by Sarvan to Murari about Krishan, the former told that they had come little before. At about 3/3.30 a.m. In the night, Madan, Sher Singh and other persons who had found the dead body in the tunnel of the hill, brought her and placed it in the street along with Salwar which was found from near the place of occurrence. The dead body was bearing nail marks on her neck and 3-4 abrasions on her back and blood was oozing from her private part. When again Krishan and Murari were searched at the house of Sheobakesh, then they were found missing. Bala also disclosed that at about 8/8.30 p.m. Prior to the occurrence, Sarvan wife of Om Parkash had heard Krishan talking with Sarita in filthy language at which Krishan was rebuked. It was also disclosed by her that Krishan had made 3-4 rounds of the street at about 10.00 p.m. immediately before the occurrence. On the aforesaid statement Ex.PA made by the complainant, a case was registered and investigation was carried out by SI/SHO Kailash Chand, who visited the spot, prepared the rough site plan, recorded statements of the witnesses, Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -3- conducted autopsy on the dead body, prepared inquest proceedings, arrested the accused on 31.7.2009. They had also made extra judicial confession of their guilt. On commitment, the accused were charged for the offence under Sections 363/34, 366-A/34, 276(2)(g)/34, 377/34 and 302/34 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined as many as 20 witnesses. Ranjit Singh (PW1) is the complainant and the author of the FIR. He has re-iterated the prosecution version. He has also stated that chappel recovered on the way of the place of occurrence was also brought by Madan Lal who was bearing the word “K” and the mother of Krishan had identified the said chappel to be that of Krishan. The said chappel was also taken into possession by the police. During cross-examination, he had identified the under wear Ex.P1, salwar Ex.P2 to be that of his daughter. Madan Lal (PW2) has also supported the allegations with regard to recovery of the dead body of the deceased from inside the tunnel. He has also stated that they saw a pair of chappel and salwar lying on the way at some distance. They had also seen one stone stained with blood and at some distance they had seen her dead body. Plenty of blood was oozing from her private parts. There were scratch marks on the neck and her back. He has also deposed that they had brought the dead body in front of the house of Ranjit Singh. The police had conducted the inquest and thereafter it was shifted to the hospital. Ram Singh (PW3) Ex-Sarpanch of the village had stated that he had joined the Investigating Officer SI/SHO Kailash Chand. The police had recovered one underwear of black colour stained with blood and semen which was taken into possession vide memo Ex.PC. He also corroborated that Madan Lal and Sher Singh had identified the place where they had committed the crime and the dead body was found. The Investigating Officer took into possession two more stones stained with blood from that place. Kishori Lal (PW4), neighbour of the complainant has stated that on 29.7.2009, at about 10.00 p.m. he had seen Krishan roaming in the Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -4- street near the house of Ranjit. Again at about 12.00 mid night he was informed by Ranjit Singh about the missing of his daughter. He has also corroborated the version given by Madan Lal (PW2) and Ram Singh (PW3) and also deposed about the recovery of salwar and oozing of the blood from the private part of Sarita. Banwari Lal (PW5) while adding to the aforesaid evidence has further stated that Madan Lal (PW2) had produced one Hawai Chappal to SI Kailash Chand which was taken into possession vide memo Ex.PE. Laxman (PW6) another villager had testified that on 29/30.7.2009 at about 2.30/2.45 a.m. he had seen the accused Krishan coming from the side of hill of village Asrawas. He was bare footed at that time. On asking he replied that he had come from the liquor vend. Bala (PW7) wife of the complainant has also narrated the prosecution version. She has also stated that few days earlier to the occurrence, both the accused had come naked in the street and had threatened them that they would get their daughter kidnapped. She has also re-iterated that on the day of occurrence, at about 8/8.30 p.m. she had heard accused Krishan talking with Sarita while using filthy language. When confronted he went away. Again at about 10.00 p.m. Krishan gave 3-4 rounds of the street. She has also stated that at the time of search at Chhatti ceremony at the house of Sheobakesh the accused had told them that they had come shortly. She had also deposed that when she and Sarvan had gone to the house of Krishan and Murari, then they came to know that the accused had not turned to their houses. Rati Ram (PW8) is the witness to the extra judicial confession made by Murari. Phool Chand (PW9) is a person before whom Krishan had made extra judicial confession. Dr. Jai Kumar Mann (PW10) Medical Officer proved the post mortem report Ex.PW10/A, FSL report Ex.PW10/B to Ex.PW10/D. He has also opined that Sarita died as a result of Asphyxia on account of throttling. On examination of the dead body, he observed as under :- “1 Average built female child aged about 9 years wearing printing yellow colour salwar kamij. Average length of Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -5- the body was 4 feet 2 inches. 2. Rigor mortis was present in all four limbs. 3. Abraded contusion 7x2.5 cm (zig zag) was present on the anterior surface of neck in the middle, diagonally placed more on left side then the right side. On dissection, there was extravasation of blood into subcutaneous tissues as well as in the adjacent muscle in the neck which are lacerated. There was fracture of cornea of hyoid bone and thyroid cartilage. 4. Reddish abraded contusion 1x0.7 cm and 0.7 x 0.5 cm on the right shoulder. 5. Reddish abraded contusion 1x0.5 cm on the left leg lower 1/3rd region. 6. Reddish abrasion 1 x 1 cm on the anterior surface of left iliac crest. 7. Multiple abraded contusion (12 in no) size varying from 0.7 x 0.5 cm to 1.5 x 1 cm on the back of the chest abdomen. 8. Perennial tear present, hymen torn, blooding present, multiple vaginal lacerations present, posterior fourchtte torn clotted blood present. Vaginal swab and smear taken from the same and sent for chemical examination to FSL Madhuban (Karnal). 9. Rectal (rectum) sphincter torn and patulous with multiple lacerations present, clotted blood was present. Rectal (rectum) swab was taken and sent for chemical examination to FSL Madhuban (Karnal). 10. The scalp skull and vertebrae were healthy on dissection. However, the membranes of brain were congested. 11. On dissection of thorax it was found that the walls rib and cartilages were healthy. Pleura,larynx and tracheas, right lung,left lung and pericardium were congested. The larynx contains frothy mucus and the Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -6- lung contains dark fluid blood. The right side of heart contains blood and the left side was empty. 12. On further dissection and after opening the abdomen the internal organs were congested and the stomach contains about 10 to 20 cc of semi digested food particles and the small intestine contains chyime and gases.” Mahipal (PW11) is the photographer who proved the photographs Ex.P7 to Ex.P15. Mahesh Kumar (PW12) is the Draftsman who prepared two site plans i.e. Ex.PM and Ex.PN of the place of occurrence and the street. Mukesh Kumar (PW13), HC Lal Singh (PW14) and Jagat Singh (PW15) are the formal witnesses. SI Dharampal (PW16) had partly investigated the case. He had joined the investigation conducted by SI Kailash Chand attested the recovery memos. Dr. Rajesh Yadav (PW17) had medico-legally examined Krishan and found the injury on the buttocks. Inspector Dilbagh Singh (PW18) had prepared the report under Section 173 Cr.P.C. SI Kailash Chand (PW19) is the Investigating Officer of this case. He had recorded the statement of Ranjit Singh Ex.PA, made endorsement Ex.PA/1, prepared the inquest report Ex.PB, recovered underwear, bloodstained stones, one pair of hawai chappel and took the same into possession vide memos Ex.PC, Ex.PD and Ex.PF respectively. He also got conducted the postmortem examination of dead body of Sarita. He got photographs Ex.P7 to Ex.P15 prepared from PW Mahipal Photographer . He also prepared the rough site plan Ex.PQ of the place of occurrence and site plan Ex.PR of the place where the dead body was placed by the villagers. SI Kamal Singh (PW20) had also partly investigated the case. On closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. wherein they denied all the Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -7- incriminating circumstances appearing against them. They further explained that they were innocent. However, they did not lead any evidence in defence. The trial resulted into conviction. Arguments heard. Record perused. It has been strenuously contended that there is no sufficient evidence much less circumstantial to connect the accused with the crime. No witness has been examined to prove the last seen theory. The medical evidence does not fit in with the ocular version. Mere suspicion cannot take place of proof. The evidence so led does not conform to the parameters as laid down in the judgment rendered in case State of Haryana vs. Jagbir Singh and another 2003 (4) RCR (Criminal) 554 for evaluating the circumstantial evidence for passing the conviction of the accused. As such, the accused deserve to be extended benefit of doubt. To the contrary, learned Additional Advocate General, Haryana has supported the judgment by stating that the lust of sex had gone to the head of the accused, thereby, in order to satisfy the same, they picked up Sarita while she was sleeping by the side of her father; took her to the hills; committed rape as well as sodomy upon her then under the fear that she may not complain about them to the police, killed her by putting a stone over her neck and pressing thereby breaking the thyroid bone. The evidence so led, though may be circumstantial, but the same is sufficient and complete in its chain pointing unerringly towards the guilt of the accused. Having heard the rival contentions, we find ourselves persuaded qua the accused Murari, but are not inclined to apply the same yardstick in favour of accused Krishan. While thrashing the case threadbare from the very inception, if we peruse the statement Ex.PA recorded on 30.7.2009 at 8.15 a.m. made by the complainant, it points towards the guilt of the accused Krishan only. The statement Ex.PA indicates that when Bala and Sarvan had gone to the house of Sheobakesh in search of Sarita there was a program of Chhatti ceremony, then they asked Murari about Krishan. Thus, at that time, they did not doubt Murari. The complainant had also stated that on 29.7.2009 at about 8/8.30 p.m. Bala as well as Sarvan had heard Krishan talking with Sarita and they had daunted Krishan, Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -8- consequently, he left for his house. The complainant though in his substantive statement states that at about 10.00 p.m. Krishan and Murari were seen while roaming in the street. This evidence qua Murari cannot be accepted as this deposition about the name of Murari amounts to an improvement, whereas in the statement Ex.PA before the police, the complainant had stated only that at about 10.00 p.m. Krishan had made 3-4 rounds in their street. Similarly, Kishori Lal (PW4) confirms about the innocence of Murari and doubt about he being the accomplice as he has also stated that on 29.7.2009 at about 10.00 p.m. He had seen Krishan roaming in the street near the house of the complainant. He does not name Murari accompanying Krishan at that time. Laxman (PW6) another star witness, who had seen the accused Krishan coming from the hill side immediately after the occurrence also does not name Murari as the person accompany him. He states that on the relevant night at about 2.30/2.45 a.m. after attending the Chhatti ceremony when they reached near the way coming from the village Asarawas, then the accused Krishan was seen coming from the side of hill of village Asarawas. He was bare footed and was lifting his foot and removing some thorn out of it. He had also not stated that Murari was accompanying him. Thus, evidence led by the prosecution does not speak about the complicity of Murari in the commission of the crime. Not only this, it was only chappel of Krishan which was recovered from near the place of occurrence and nothing belonging to Murari was recovered. The only circumstances as brought on record to prove the involvement of Murari are as under :- 1. Bala had seen Murari and Krishan in naked condition in the street and they threatened Bala and her husband that they would kidnap their daughter. 2. Murari and Krishan were seen on the Chhatti ceremony after the occurrence. 3. Extra judicial confession. 4. During the night of occurrence, Murari had not gone to his house . These circumstances unless connected and corroborated by other evidence are hardly sufficient to prove the complicity of Murari in the Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -9- commission of the crime. As regards the earlier occurrence, no witness has been examined in order to prove if Murari had also associated Krishan when they had threatened the complainant and his wife to kidnap their daughter. Mere presence of Murari during the night of occurrence at the time of Chhatti ceremony i.e. birth celebrations rather proves the innocence of Murari and also the cause for not going to his house. Since he was enjoying in the Chhatti ceremony therefore, it may be the cause for not visiting his house. It was not only Murari who was present at the time of Chhatti ceremony but many other people had gathered there, therefore, his complicity cannot be doubted on this ground alone. Now coming to the extra judicial confession, that unless corroborated by any other corroborative piece of evidence cannot be used as a foundation to connect the accused with the crime. Rati Ram (PW8), previously knew about the incident. Murari was already named in the FIR and he appears to have surrendered through Rati Ram before the police. Otherwise, Rati Ram was no one to pardon him, therefore, he could not expect any help from Rati Ram. As such, confession made before him cannot be treated as a confession voluntarily made by him so as to make foundation of his conviction. Now coming to the case of Krishan, we are impressed from the evidence led by the prosecution and do not agree with the contention raised by the learned counsel for the appellant- Krishan that he did not contribute to rape and murder Sarita. In this regard, we may discuss the medical evidence of Dr. Jai Kumar Mann (PW10) who examined Sarita and found as many as 12 injuries on her person. We need not to produce all the injuries, but the injury No.8 which is sufficient to prove rape and injury No.9 which proves the un-natural offence upon Sarita need to be reproduced :- “1 to 7 xx xx xx 8. Perennial tear present. Hymen torn, bleeding present, multiple vaginal lacerations present, posterior fourchtte torn clotted blood present. Vaginal swab and smear taken from the same and sent for chemical examination to FSL Madhuban Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -10- (Karnal). 9. Rectal sphincter torn and patulous with multiple lacerations present clotted blood present. Rectal swab taken and sent for chemical examination to FSL Madhuban (Karnal). 10 to 12 xx xx xx” The injury No.3 proves the death due to asphyxia on account of throttling : “3. Abraded contusion 7 x 2.5 cm (zig-zag) present on the anterior surface of neck in the middle, diagonally placed more on left side then the right side on dissection there was extravasation of blood into subcutaneous tissues as well as in the adjacent muscle in neck which are lacerated. There is fracture of cornua of hyoid bone and thyroid cartilage.” With regard to throttling this witness has specifically opined that he had find asphyxia as a result of throttling which was ante mortem in nature and sufficient to cause death in the ordinary course of nature. Though Dr. Jai Kumar Mann (PW10) did not specifically opined that there was a rape before death, however, during cross examination he has categorically stated that it was a case of sexual assault. He made the following statement :- “.... Since human semen was detected on salwar, lady shirt along with vaginal swab and smear and rectal swab and smear, it is a conclusive proof of sexual assault.....” The reports Ex.PW16/B, Ex.PW16/C and Ex.PW10/D clearly indicate that it was a case of sexual assault. Since the prosecutrix was undisputedly below 14 years of age and the medical evidence proves the sexual assault then no doubt is left in our mind while holding that the accused had committed rape before committing murder. Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -11- As regards the unnatural offence, injury No.9 clearly indicates about the commission of the said offence. The argument that there was no specific opinion with regard to unnatural offence is of no significance as injuries as recorded by Dr. Jai Kumar Mann (PW10) as well as FSL reports indicate about the presence of semen mixed with blood on the rectal swab, underwear and pant of the accused indicating the accused had also committed unnatural offence covered by Section 377 IPC. Now coming to the other circumstances which directly point towards the guilt of the accused Krishan as culled out from the evidence are as under :- “1. Few days before the occurrence Krishan had come in the street in naked condition and he had threatened them for kidnapping their daughter. Though Bala had made some exaggeration while adding the name of Murari, yet the threat as given by Krishan stands duly established as no question was asked to Bala for changing this part of her statement. 2. On 29.7.2009, at about 8/8.30 p.m. Bala and Sarvan had heard Krishan when he was taking with Sarita in a filthy language. Bala had proved this fact while appearing in the witness box as (PW7). 3. On the day of occurrence, at about 10.00 p.m. Krishan had given 3-4 rounds in the street. Thus, he was found in suspicious circumstances there in the street. 4. Laxman (PW6) had stated that during the night of 29/30.7.2009, after attending the Chhatti ceremony when he was returning to his village, then he had seen accused Krishan coming from the side of hill of village Asarawas. He was bare footed and was lifting his foot and removing thorn from his feet by hand. Learned counsel for the appellant has challenged the statement on the ground that he has given the time about 2.30/2.45 a.m. When he had seen Krishan coming from the side of hill, whereas, the other evidence Murder Reference No.4 of 2011 & Criminal Appeal No. 289-DB of 2011 -12- reveals that at the said time the accused was present at the place of Chhatti ceremony. As a matter of fact, the poor labourers hailing from country side being illiterate have no much sense about the time. They could be articulate to a certain fact and are normally vague qua the other circumstances. As such, his testimony cannot be ignored qua the fact that he had seen the accused coming from the hill side and he was bare footed at that time. On questioning as to from where he was coming at said odd hours, then he replied that he had come from the liquor vend. The fact that he was bare footed has been confirmed by recovery of chappal from near the place of occurrence which indicates that during the process of taking the deceased to the hill side, his chappal may have slipped from his foot. His explanation that he was returning from the liquor vend at about 2.30 or 2.45 a.m. Any way, he falsifies his own version as no liquor vend remains open till mid night, rather this circumstance indicates that the accused was seen coming from the hill side i.e. place of occurrence at odd hours which clearly point towards his guilt. Recovery of chappal is another circumstance which adds to the chain of circumstances. It has come in evidence of Bala (PW7) that firstly when they visited the place of Chhatti ceremony, accused was present there. However, after recovery of the dead body, when they again went to search the accused at Sheobaksh's house,