Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision: January 14, 2011 1.Criminal Appeal No.560-DB of 2003 Jai Bhagwan son of Shri Hukam Singh resident of Village Salimsar Majra, District Sonepat. v. State of Haryana 2. Criminal Appeal No.633-DB of 2003 Raj Kumar alias Bablu son of Azad Singh resident of village Rajpur, District Sonepat. V. State of Haryana 3. Criminal Appeal No.684-DB of 2003 Rajesh son of Shyam Lal resident of village Salimsar Majra,District Sonepat. V. State of Haryana CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M.JEYAPAUL Present: Mr. B.S.Saroha, Advocate for the appellants in all the three appeals. Mr.S.S.Randhawa, Additional Advocate General, Haryana for the State. M.Jeyapaul,J. Introduction All the three accused were convicted and sentenced to undergo imprisonment for the offenes under Sections 302, 376(2)(g) Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 2 and 201 of the Indian Penal Code as under: Under Section Sentence 302 of the Indian Penal Code Imprisonment for life and to pay an amount of of Rs.2000/-as fine and in default of payment of payment of fine to undergo further R.I. for a period of two months. 376(2)(g) of the Indian Penal Rigorous imprisonment for ten years and to pay an amount of Rs.1000/- as fine and in default of payment of fine to undergo further R.I. for a period of one months. 201 of the Indian Penal Code Rigorous imprisonment for three years and to pay an amount of Rs.500/- as fine and in default of payment of fine to undergo further R.I. for a period of one months. All the substantive sentences were ordered to run concurrently. All the three accused have preferred the above three independent appeals challenging the conviction as well as the sentence imposed. Brief case of the prosecution: 2. (a) PW5 Shanti, the mother-in-law of the deceased and PW13 Parkash, brother of the husband of the deceased witnessed the accused taking away Bala ( since deceased) from her house. (b) PW1 Daya Chand found the dead body in a naked condition in a nearby bush in the field. Her right arm was cut off. Other injuries were also found on her dead body. The upper portion of her dead body was burnt. He submitted report Ex.PA to PW19 SI Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 3 Satpal Singh who recorded his statement and forwarded the same for registration of formal FIR. (c) PW19 SI Satpal proceeded to village Kiloharad,having arranged a photographer. He found the dead body of a woman lying in a bush in the common land. He prepared site plan Ex.PT. Photographs of the scene of occurrence where the dead body was lying were taken with the assistance of the photographer. (d) PW19 SI Satpal prepared the inquest report Ex.PQ/3. He recovered partially burnt clothes of the deceased. He collected blood-soaked earth. A locket with the image of Shri Ram threaded in it was also recovered vide recovery memo Ex.PB in the presence of PW1 Daya Chand and another witness. The dead body was identified by PW5 Shanti and PW13 Parkash. (e) PW16 Dr. Sanjeev Malhotra attached to PGIMS, Rohtak, conducted post-mortem examination on the dead body of Bala on 30.1.2002 at 11.30 am. He found half burnt bluish woollen sweater, half burnt cloth piece with while flowery design, nine glass bangles, one yellow metallic bangle around the right wrist, five reddish glass bangles, one yellow metallic bangle in the left wrist and one yellow metallic ring on the left hand finger. The body was emitting foul smell. The scalp skin over the face and upper chest reflected superficial burns. Eye, ears, nose,mouth, lips and tongue were also found with superficial burns. The vaginal swabs were taken for examination by Forensic Science Expert. The following injuries were also noticed by PW16: (i) A sharp cut over the front of neck, just above,the Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 4 thyroid cartilage; (ii) A spindle shaped stab wound of measuring 3 x 2 cms on the front of the neck; (iii) a spindle shaped stab wound measuring 4 x 3 cms on the front of the chest; (iv) a spindle shaped stab wound 4 x 2 cms on the back in the 8th inter-coastal space; (v) A spindle shaped stab wound measuring 3 x 1 cms on the back in the midline at the level of 4th lumber vertebrate. (f) PW16 opined that the injuries were ante mortem in nature and were also sufficient to cause death in the ordinary course of nature but the burn injuries were post mortem in nature. On receipt of the report from the Forensic Science Laboratory with respect to the examination of the vaginal swabs, he has opined that deceased Bala was subjected to sexual intercourse. (g) All the three accused were produced before PW16 Inspector Lekh Raj by PW6 Babu Ram, who interrogated them in the presence of PW11 HC Jagat Singh and PW14 HC Rajbir Singh. The accused gave disclosure statement individually. On the basis of the disclosure statements given by the accused, the other material objects were recovered. The second and third accused were subjected to potency test by PW17 Dr.J.S.Punia,who opined that both of them were able to perform sexual intercourse. After the completion of investigation, the final report was filed as against all the three accused. Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 5 Statement of the accused under Section 313 Cr.P.C. 3. All the three accused pleaded innocence. Having dubbed the incriminating version projected by the witnesses from the side of the prosecution as totally incorrect they would submit that they have been falsely implicated in this case. Submissions made by Shri B.S.Saroha, learned Counsel for the appellants:- 4. The prosecution failed to established the last seen theory, the extra judicial confession and the recovery of material objects. The report submitted by the Director of Forensic Science Laboratory also does not go to establish the case of the prosecution. Therefore, it is his submission that innocent persons were implicated falsely in this case. Submission made by Shri S.S.Randhawa, Additional Advocate General,Haryana for the State of Haryana:- 5. PW6 Babu Ram has spoken to the extra judicial confession given to him by the accused. PW5 Shanti, the mother-in- law and PW13 Parkash, the brother-in-law of the deceased have spoken about the fact that the accused persons took away Bala from her house. The medical evidence as well as the recovery of the material objects supported by the Forensic Science Laboratory report would also lend corroboration to the case of the prosecution. Discussion: shabby investigation: 6. To say the least, a case of rape and murder of a widow was very recklessly investigated by the police officials. With a lot of anguish,we will have to place on record that the Investigating Officer had not chosen to show the required attention to such a crime Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 6 committed in the society. Materials produced by the prosecution lack trustworthiness. In fact the prosecution has come out with a case of blind murder and rape without any material to clinch the crime alleged against the accused. Had the police officials evinced due interest in the matter of investigation, they could have definitely produced weighty materials to establish the offence against the accused. With heavy heart, we have to record a judgment of acquittal, setting aside the conviction recorded by the trial Court without any worthy material to support its decision. Extra judicial confession: 7. PW6 Babu Ram was examined by the prosecution with a view to project the extra judicial confession alleged to have been given by all the three accused to him, But on a careful scanning of the evidence of PW6, we find that he has come out with a totally inconsistent stand before the Court. Let us now turn to the extra judicial version spoken to by PW6. All the three accused met PW6 after five days of the occurrence. All the three accused persons suffered disclosure statements of course in his presence only before the police officials in the Police Station. They confessed that they committed the murder and rape of Bala. He also made an application to the Station House Officer that the accused persons had thus confessed their guilt in his presence also but the said application submitted by him bore the signatures of Mrs.Chalti, Smt. Shanti, Parkash and one chowkidar. 8. The statement given by PW6 does not bear the signature of those persons. Secondly, he has come out with a version that the confessional statement was given by the accused individually in his Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 7 presence before the police in the Police Station. Quite unfortunately the said witness was not subjected to cross-examination by the prosecution after treating him hostile with the permission of the Court. In other words, the evidence of PW6 that the confessional statement was given by the accused only in his presence before the police in the police station was not at all controverted by the prosecution. The evidence of PW6 stands totally unchallenged. The sum and substance of the version of PW6 is that no individual confessional statement was given to him by the accused before ever the accused were interrogated by the police officials. The extra judicial confession was given only in the presence of police official during the Course of interrogation. Such an extra judicial confession allegedly given by the accused in the presence of the police officials in the police station cannot at all be treated as extra judicial confession given to any independent witness. The evidence of PW6 does not inspire confidence. Self contradictory version of PW6 deserves to be rejected out-right. Unfortunately the trial Court has placed reliance upon such a wishy-washy version. Last seen theory: 9. PW5 Shanti, the mother-in-law of the deceased and PW13 Parkash, the brother-in-law of the deceased would depose very vaguely that the accused in fact took away Bala from her residence. Let us now refer to the evidence of PW5 and PW13 to expose the stand of PW5 and PW13 as to the last seen theory projected through them. PW5 Shanti would state that about 8/9 months prior to the occurrence, the accused persons came to the house of Bala and took her away. Firstly it is found that it is not the Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 8 case of the prosecution that deceased Bala was missing for about nine months prior to the occurrence. Secondly, PW5 has stated nothing about the fact that he lastly saw the deceased in the company of the accused, in her statement recorded under Section 161 Cr.P.C. by the Investigating Officer. Therefore, such a testimony of PW5 is totally untrustworthy and unbelievable. 10. PW13 Parkash comes out with a totally different story that his mother PW5 Shanti in fact produced all the accused before the Police. The first and third accused and the wife of first accused took Bala away from her house. It is found that he has not whispered anything about the fact that he located Bala in the company of first and third accused and the wife of first accused, prior to the occurrence in his statement recorded under Section 161 Cr.P.C. by the Investigating Officer. Therefore such a fresh stuff introduced by him for the first time during the course of trial cannot be accepted by the Court of law. It is found that he has introduced the wife of the first accused as one of the culprits and gave clean chit to the second accused. It is not the case of the prosecution that the wife of the first accused was involved in the crime alleged as against the accused. Finally he has damaged the case of the prosecution by deposing that it was only PW5 Shanti who produced the accused before the police. He has also further stated that nothing was recovered in his presence. Therefore his version does not go in tune with the very case of the prosecution. He comes out with a totally different version which is unreliable. Recovery of material objects and Forensic Science Report: 11. The independent witness PW13 has not supported the Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 9 case of the prosecution that in his presence the recovery was effected by the Investigating Officer. The manner in which the arrest was made creates a doubt in the mind of the Court. There are three versions now available with respect to the arrest of the accused. The first version of the prosecution is that it was only PW6 who produced all the accused before PW15 Inspector Lekh Raj who arrested them. But PW6 Babu Ram would state that he had not brought the accused to the police person. But when he arrived at the police station, interrogation was going on and during such course of interrogation the accused confessed the crime. The last version is found place in the evidence of PW13 Parkash who would say that it was only PW5 Shanti who produced all the accused before the Police and the police started interrogating the accused , after arresting them. But PW5 does not whisper anything about such a role played by her. 12 When the arrest of the accused itself is found to be doubtful, the recovery of the material objects based on the alleged disclosure statements given by the accused does not receive acceptance from this Court. 13. Even assuming for the sake of argument that in fact there were recoveries made by PW15 on the basis of the disclosure statement given by the accused, the report submitted by the Director of the Forensic Science Laboratory does not in any way help the case of the prosecution. The FSL report would indicate that blood stains alleged to have been found in the churri and shirt of the accused were completely disintegrated. Therefore, the alleged recovery also did not connect the accused with the crime. Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 10 Medical testimony: 14. The medical evidence given by PW16 speaks of the grotesque crime committed in this case. The victim who was a widow was abducted,raped and murdered. An attempt was also made to completely erase the evidence by burning the dead body just above the chest. The FSL report would disclose that the victim was subjected to sexual intercourse just before her death. As already pointed out by us, such a shocking crime committed, was not properly investigated in order to establish the case of the prosecution. As no legal material is available as against these accused/appellants, we are left with no other option except acquitting all the accused of the charges framed against them, upsetting the judgment of conviction and order of sentence recorded by the trial Court. Conclusion: 15. In the above facts and circumstances, the appeals are allowed and the impugned judgment of conviction and the order of sentence is set aside and the appellants in all the there appeals are acquitted of the charges. Appellant Jai Bhagwan is on bail. However, appellants Raj Kumar alias Bablu and Rajesh are in custody and they be set at liberty forthwith, if not required in any other case. ( M. Jeyapaul ) Judge January 14,2011 ( Satish Kumar Mittal ) sks Judge To be referred to the Reporter ? Criminal Appeals No.560-DB, 633-DB and 684-DB of 2003 11