Crl.Appeal No. 879-DB of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.879-DB of 2008 Date of decision: 16.12.2010 Ram Chander ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Kushaldeep Singh Sandhu, Advocate, for the appellant. Ms.Gurveen H. Singh, Addl.AG, Punjab. ... JORA SINGH, J. Ram Chander son of Badri Mandal filed this appeal to challenge the judgment of conviction and order of sentence dated 29.11.2006 passed by Additional Sessions Judge, Ludhiana, in Sessions Case No.21 of 4.3.2002, arising out of FIR No.263 dated 20.7.2001 under Sections 302/376 IPC, Police Station Sadar, Ludhiana. By the said judgment, he was convicted under Sections 376/302 IPC and sentenced to undergo RI for ten years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for one year under Section 376 IPC and to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for one year under Section 302 IPC with direction that he is not entitled for the benefit of set off under Section 428 Cr.P.C. Both the sentences were ordered to run concurrently. Prosecution story, in brief, is that on 20.7.2001 at about 10.40 AM, Pavittar Singh, complainant, resident of Village Bahadurke, was Crl.Appeal No. 879-DB of 2008 2 present at Bharti Colony, where police party headed by SI Narinder Pal, met him. Then he reported to the police that to irrigate his fields, he has constructed one room and in that room, electric motor was installed. Room was without door. For the last 4/5 days, electric motor was not in working condition. Today at about 9.00 AM, he along with Mechanic Aman Singh had gone to his fields, then dead body of one unknown lady, aged about 30/35 years, was found lying in the room. After checking the dead body, they came to know that firstly rape was committed, then she was strangulated. Some unknown person after rape has murdered the lady. Aman Singh was deputed to guard the dead body. Statement of Pavittar Singh (Ex.PA) was recorded at 10.40 AM. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. Special report was handed over to Ilaqa Magistrate at 2.15 PM. Police party headed by SI Narinder Pal had gone at the spot. Inquest report was prepared. Dead body was sent to the hospital for postmortem examination. After postmortem examination, dead body was cremated by the police. Rough site plan with correct marginal notes was prepared. One bottle and one glass lying near the dead body were lifted and made into separate sealed parcels with seal bearing impression `NP'. Sealed parcels were taken into police possession vide separate memos attested by the witnesses. Blood stained earth was lifted from the spot and made into a sealed parcel with seal bearing impression `NP'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. One plastic bag containing one plastic empty bottle, one torn cloth, one comb, one mirror,one underwear, one knot of braided hair, one borolene cream, Crl.Appeal No. 879-DB of 2008 3 one pair of chappal, one parna and one cloth were recovered and the same were taken into police possession vide separate memos attested by the witnesses, after making them into separate sealed parcels with seal bearing impression `NP'. Accused was arrested on 6.8.2001 and produced before the doctor for medico legal examination. After completion of investigation, challan was presented in the Court. Accused was charged under Sections 376/302 IPC, to which he pleaded not guilty and claimed trial. To substantiate its case, prosecution examined 13 witnesses. PW1 Jit Singh stated that on 18.7.2001 at about 11.30 PM, he had seen one lady in the company of the accused, who was under the influence of liquor. Accused was earlier known to him because he was the servant of Balkar Singh, Sarpanch. Later on, he came to know that deceased was the same lady, who was seen in the company of the accused. PW2 Pavittar Singh is the complainant and stated that on 20.7.2001 at about 9.00 AM, he along with Mechanic Aman Singh was present near the room of electric motor. Dead body of a female, aged about 30/35 years, was found lying in the room. Mechanic Aman Singh was deputed to guard the dead body. Report was lodged to the police. Accused was the servant of Balkar Singh. PW3 Gurdip Singh son of Balkar Singh stated that accused was his servant. Accused had gone on the intervening night of 17/18.7.2001 and came back on 6.8.2001. On that day, accused made extra judicial confession that after rape, unknown lady was murdered by him in the room of Pavittar Singh. Accused was produced before the police. Crl.Appeal No. 879-DB of 2008 4 PW4 Karamjit Singh, Photographer, clicked photographs (Ex.P1 to Ex.P5). Negatives are Ex.P6 and Ex.P7. PW5 ASI Tirath Singh was with SI Narinder Pal and stated that police party was present in the area of Bharti Colony, then Pavittar Singh met the police party and his statement (Ex.PA) was recorded. After that, police party had gone at the spot, where dead body was lying. Inquest report was prepared. Dead body was sent to hospital for postmortem examination. Blood stained earth was lifted from the spot. Other articles lying near the dead body were also taken into police possession. PW6 SI Narinder Pal had initially investigated the case in hand. PW 7 Dr.Inderjit Singh Bagga and PW12 Dr.Sangita Singh had conducted postmortem examination on the dead body of unknown lady on 20.7.2001 and found the following injury on her person:- “1. Ligature mark around neck in front and side of the neck.” Cause of death was due to asphyxia as a result of strangulation, which was sufficient to cause death in the ordinary course of nature. Injury was ante mortem in nature. Probable time that elapsed between death and postmortem examination was 3 to 5 days. PW8 Dr. Sanjiv Hans on 9.10.2001 has medico legally examined the accused and opined that he was fit to perform sexual intercourse. PW9 Constable Ram Saran prepared scaled site plan. PW10 Constable Albar Masih, PW11 HC Rajinder Singh and PW13 HC Kuldeep Singh tendered their affidavits, Ex.PW10/A, Ex.PW11/A and Ex.PW13/A, respectively. Crl.Appeal No. 879-DB of 2008 5 After close of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that Birju, Bittu and Pappa sons of Balkar Singh had committed the crime. He was working on the dairy of Balkar Singh. In order to save his sons, Balkar Singh got implicated him in this false case. He had moved an application in this regard. Opportunity was given to lead defence evidence, but no defence was led. After hearing learned Public Prosecutor for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. We have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellant argued that case is based on circumstantial evidence. No eye witness. When case is based on circumstantial evidence, then motive assumes importance. First circumstance to connect the appellant with the crime was the statement of Jit Singh regarding last seen but his statement inspires no confidence because he was the resident of Village Bahadurke. Complainant was also resident of Village Bahadurke. In case, Jit Singh had seen the deceased in the company of the appellant on 18.7.2001 at about 11.30 PM, then after recovery of dead body on 20.7.2001, he should have reported the matter to the police or the complainant. Second circumstance against the appellant was that appellant made extra judicial confession before Gurdip Singh son of Balkar Singh. But appellant had no reason to make extra judicial Crl.Appeal No. 879-DB of 2008 6 confession before Gurdip Singh son of Balkar Singh because crime was committed by the sons of Balkar Singh. Gurdip Singh was not holding any position. He had no say in the police department. If on 18.7.2001 at about 11.30 PM, appellant was seen in the company of the deceased and the police was not after him, then there was no reason to make extra judicial confession before Gurdip Singh. Argued that during investigation and trial, appellant remained in custody but as per main judgment, benefit of Section 428 Cr.P.C. was not given to him. Learned State counsel argued that no doubt, case is based on circumstantial evidence but on 18.7.2001 at about 11.30 PM, deceased was seen in the company of the appellant. Dead body was recovered on 20.7.2001. As per postmortem report, probable time that elapsed between death and postmortem examination was within 3 to 5 days. Appellant was the servant of Balkar Singh, who was running a dairy. Extra judicial confession was made before the employer with a view that he was to be saved from police torture. According to defence version, crime was committed by the sons of Balkar Singh but no question was put to Gurdip Singh or any other witness that crime was committed by the sons of Balkar Singh. On 6.8.2001, appellant was produced before the police, but no complaint to any authority that crime was committed by the sons of Balkar Singh. For the first time when appellant was examined under Section 313 Cr.P.C., then stated that crime was committed by the sons of Balkar Singh. Chain of circumstantial evidence is complete to opine that crime was committed by the appellant only and by nobody else. Admittedly, case is based on circumstantial evidence. There is no eye witness. Then motive assumes importance. First circumstance to Crl.Appeal No. 879-DB of 2008 7 link the appellant with the crime is the statement of Jit Singh r/o Village Bahadurke. He used to sell vegetables on a rehra. On 18.7.2001 at about 11.30 PM, Jit Singh had seen one unknown lady in the company of the appellant. Appellant was the servant of Balkar Singh and was earlier known to him. Jit Singh had enquired from the appellant as to why he was taking away one unknown lady forcibly, then reply of the appellant was that the lady was his relative, and he (Jit Singh) should not interfere. After that, Jit Singh had gone out of station and when came back, then came to know about the incident. From the description of the dead body, Jit Singh recollected that deceased was the same lady, who was seen in the company of the appellant. Appellant was not inimical towards Jit Singh. Jit Singh was not related to the deceased. He is an independent witness. So, statement of Jit Singh qua last seen inspires confidence. On 20.7.2001, Pavittar Singh along with Mechanic Aman Singh had gone to his fields. In the room of electric motor, they had noticed dead body of one unknown lady, aged about 30/35 years. Then matter was reported to the police. Next circumstance to connect the appellant with the crime was that on 6.8.2001, appellant made extra judicial confession before Gurdip Singh son of Balkar Singh. Appellant was produced before the police. Suggestion was given to Gurdip Singh that appellant was not his servant. Second suggestion to the witness was that he is the friend of police and due to this reason, deposed falsely. No suggestion was given to Jit Singh or Gurdip Singh that crime was committed by the sons of Balkar Singh. If appellant was of the considered view that crime was committed by the sons of Balkar Singh, then immediately after arrest, he should have sent complaints to different authorities. But till today, no complaint to any Crl.Appeal No. 879-DB of 2008 8 authority. Appellant when examined under Section 313 Cr.P.C., then stated that crime was committed by Birju, Bittu and Pappa sons of Balkar Singh. He was working on the dairy of Balkar Singh. Application was moved but as discussed earlier, no suggestion to Jit Singh, Pavittar Singh or Gurdip Singh that crime was committed by the sons of Balkar Singh. If sons of Balkar Singh had committed the crime, then immediately after arrest, appellant should have brought this fact to the notice of the Court. He was represented by defence counsel, so there was no idea to remain silent. For the first time when statement of appellant was recorded under Section 313 Cr.P.C., then stated that crime was committed by the sons of Balkar Singh. Suggestion was given to Gurdip Singh that appellant was not the servant of Balkar Singh but when examined under Section 313 Cr.P.C., then appellant stated that he was working on the dairy of Balkar Singh. Gurdip Singh son of Balkar Singh, Jit Singh and Pavittar Singh, complainant, are the residents of Village Bahadurke. Appellant was known to Jit Singh. So, learned defence counsel cannot argue that Jit Singh had not seen the deceased in the company of appellant on 18.7.2001 at about 11.30 PM. Appellant made extra judicial confession before Gurdip Singh because he was owning a dairy and has friendship with the police. To avoid torture at the hands of the police, appellant made extra judicial confession because police was after him in view of the statement of Jit Singh recorded on 1.8.2001. Appellant is from Nepal. Dead body was not identified by any body else till cremation. As per report of CFSL (Ex.PX), semen was noticed in case of vaginal swabs. Clothes worn by the deceased were found Crl.Appeal No. 879-DB of 2008 9 to be stained with human blood. Report of the laboratory shows that before murder, deceased was raped. So, appellant had the motive to commit the crime because when deceased was being raped, then she raised cries. To avoid apprehension by any body, deceased was strangulated. After leaving dead body in the room of Pavittar Singh, appellant had left the scene of crime. In view of statement of Jit Singh, police was after the appellant, then he made extra judicial confession before his employer Gurdip Singh. On the same day, appellant was produced before the police. If appellant had moved application, then the same should have been exhibited but no effort to exhibit the application. In view of all discussed above, we are of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is upheld with modification to the effect that the period already undergone during inquiry, investigation or trial shall be set off under Section 428 Cr.P.C. against the sentence awarded to the convict. For the reasons recorded above, appeal without merit is dismissed. ( JORA SINGH ) JUDGE 16.12.2010 ( SATISH KUMAR MITTAL ) pk JUDGE