IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 865-DB of 2008 DATE OF DECISION : 01.04.2011 Mandeep and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT Crl. A. No. 137-DB of 2009 DATE OF DECISION : 01.04.2011 Dharambir .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. N.K. Sanghi and Mr. Aditya Sanghi, Advocates, for the appellants (in Crl. A. No. 865-DB of 2008) Mr. Vaibhav Jain and Mr. Vishal Rattan Lamba, Advocates, for the appellant (in Crl. A. No. 137-DB of 2009) Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeal No. 865-DB of 2008, filed by accused Mandeep and Karambir (hereinafter referred to as Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -2- `A-1 and A-2' respectively) and Criminal Appeal No. 137-DB of 2009, filed by accused Dharambir (hereinafter referred to as `A-3'), against their conviction and sentence. 2. Appellants along with one Shakuntala (mother of A-3) were tried by the court of Additional Sessions Judge, Hisar, for the offences under Sections 364 read with Section 120-B, 302 read with Section 34 and 201 IPC, for hatching a criminal conspiracy, kidnapping Subhash and then after causing his murder, causing the evidence of said offence to disappear with intention of screening them from legal punishment. Vide judgment dated 17.11.2008, passed by the trial court, the appellants have been convicted under Section 364 read with Section 120-B, 302 read with Section 34 and 201 IPC, whereas accused Shakuntala has been acquitted of the charges. Vide order dated 20.11.2008, the appellants have been sentenced to undergo rigorous imprisonment for life and to pay a fine of ` 5,000/- each, in default to undergo rigorous imprisonment for a period of three months each under Section 302 read with Section 34 IPC; rigorous imprisonment for five years and to pay a fine of ` 2,000/- each, in default to undergo rigorous imprisonment for a period of one month each under Section 364 read with Section 120-B IPC; rigorous imprisonment for three months each and to pay a fine of ` 2,000/- each, in default to undergo rigorous imprisonment for one month under Section 201 IPC. Case of the prosecution 3. (i) On 21.7.2005, when Avtar Singh (PW.7), Sarpanch of village Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -3- A.P. Bir, District Hisar, along with Bhim Dev, Member Panchayat, was going from Hisar to his village, he saw dead body of an unknown person lying in the canal near the 4th Mile canal bridge. Except the underwear, there was no cloth on the body. It was swollen and decomposed. On information given by him to the police of Police Station Sadar Hisar, on telephone, ASI Sajjan Singh (PW.13) reached the spot, recorded the statement (Ex.P12) of Avtar Singh and made his endorsement (Ex.P26) thereon at 1.10 PM, on the basis of which DDR No. 23 dated 21.7.2005 was recorded at 1.30 PM. The dead body was taken out from the canal and was sent to the General Hospital, Hisar, where Dr. Davinder Sindhu referred the dead body for post mortem examination to PGIMS, Rohtak. (ii) On 22.7.2005, Dr. Rajat Pankaj (PW.11) conducted post mortem examination on the dead body of an unknown male. According to him, the body was wearing only an underwear with elastic waist, which was smudged with blood and mud. The body was emitting foul smell. Maggots of size .5 x 1 cm were crawling at places. Scalp hairs peeled off except a few tufts of black and occasional grey hair 3 to 4 cm long and easily pulled off at slight traction. Epidermis peeled off all over the body. Hands and feet deglaved, ear, nose, lips, tongues deformed, face not identifiable. The following injuries were noticed on the dead body : 1. Ligature mark and ligature material. A ligature mark running all around the neck with an area of interruption on the left side of neck 3 cm below left angle of mandible width of ligature mark 2.4-3 cm at places and situated 2.5 cm below right angle Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -4- of mandible and 3 cm below left angle of mandible and 2.5 cm in mid-line below chin and 2 cm below external occipital protuberance. On dissection, underlying soft tissue ecchymosed. On further dissection, larynx and tracheal structure congested. A ligating material in the form of a white banyan with trademark Lux Venus 95 cm on one aspect and on back side of this flap trademark Regd. trade mark of Vishavnath Hosary Mills Limited alongwith which was entangle a polythene sheet of white colour was present. In the neck region a fixed note was pre present on the left side. The inner circumference 34 cm and neck circumference of 37 cm. There were two free ends of lygating material emitting material from knot measuring 24 cm and 18 cm. The width of legating material was 3 cm. 2. A reddish diffuse contusion of size 5 x 3 cm present over the vertex region of skull. On dissection, underlying scalp layer ecchymosed. There were a linear fracture radiating from the vertex region interiorly, the fracture radiates for a distance of 8 cm on frontal bone from vertex to 6 cm just above left supracillary arch. Another fracture radiating latterly to left over parital and temporal bones for a distance of 12 cm from vertex to 2 cm above auditing meatus. Another fracture radiating posterorly for a distance of 7 cm on the right parital bone 6.5 cm above occipital protuberance. The fracture segment showed infiltration of blood in trabicula. 3. A reddish diffuse contusion of size 6 x 4 cm on the chin in mid- line on dissection underlying tissue ecchymosed and there was fracture of mandible in the middle of body of mandible. Going through and through. The fractured segments showed infiltration of blood. Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -5- 4. A reddish diffuse contusion of size 5 x 3 cm over the chest in mid-line situated 5 cm below sternal angle on dissection underlying tissues were ecchymosed. On further dissection there was fracture of body of sternum in its middle half. Fracture segment showed infiltration of blood. In the opinion of the doctor, the cause of death was strangulation by ligature coupled with injuries, mentioned above, which were ante mortem in nature. Further, according to the doctor, the dead body was of a young adult male. The duration between death and post mortem was within a week. During the post mortem examination, the doctor took out two pieces of plavical for DNA test, which were sealed in a jar and then handed over to the police along with carbon copy of the Post Mortem Report. Further, according to the doctor, injuries in the Post Mortem Report are possible by danda blows. (iii) After receipt of the Post Mortem Report, the police registered FIR No. 520 dated 22.7.2005 (Ex.P19) at Police Station Sadar Hisar under Section 302/201 IPC, against unknown person. Investigation 4. (i) On 27.7.2005 at 11.30 AM, Kuldeep son of Nani Ram (PW.8) made a statement (Ex.P13) to SI Mahender Singh (PW.12) at Bus Stand, village Niyana, to the effect that they were six brothers. Three brothers, i.e. he (Kuldeep), Suresh (PW.9) and Subhash (deceased) were living jointly, whereas three other brothers, namely Ishwar, Ajit and Vijinder, were living together separately. About six years earlier, his brother Subhash, A-3 and one Hawa Singh were apprehended in a case under the NDPS Act. His Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -6- brother Subhash and Hawa Singh were acquitted, whereas A-3 was convicted and sentenced. In that case, A-3 was released on parole for one month. On 16.7.2005 at about 7.30 PM, when he (Kuldeep) and his brother Subhash were present at Bus Stand of their village Niyana, a Maruti car came there, in which A-3, A-1, A-2 and one Naveen son of Nafe Singh (who has been declared proclaimed offender) were sitting. A-3, who was driving the car, stopped the car and asked Subhash to accompany them to Hisar to see his would-be wife. Thereupon, Subhash along with the aforesaid accused persons sat in the car. It was further stated by Kuldeep that thereafter, he and his family members waited for 2-3 days, but when his brother Subhash did not return, he made enquiries and came to know that after availing the parole, A-3 had surrendered in the jail. When he and his brother Ishwar enquired from village Narnaund and Juglan, they heard that all the aforesaid four accused were vagabond and bad element persons. They had taken their brother by inducing him with intention to kill him. He further stated that he also heard that when his brother Subhash, A-3 and Hawa Singh were confined in jail, a quarrel/altercation had taken place between Subhash and A-3 and he is fully confident that the accused might have killed his brother. Action be taken against them. (ii) On the basis of the said statement, an FIR No. 534 dated 27.7.2005 under Section 364/34 IPC was registered at Police Station Sadar Hisar. (Subsequently, in view of the fact that with regard to the dead body of an unknown person, which was lateron alleged to have been identified as Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -7- that of Subhash, an FIR had already been registered, this FIR was cancelled). (iii) It is further case of the prosecution that on 26.7.2005, i.e. one day prior to the recording of the aforesaid statement of Kuldeep, A-1 and A- 2 went to the residence of Suresh (PW.9), another brother of deceased Subhash, who was jointly residing with complainant Kuldeep and deceased Subhash, and made extra judicial confession before him to the effect that on 16.7.2005 at about 7.30 PM, A-1, A-2, A-3 and accused Naveen went to Bus Stand, Niyana, from where they took Subhash on the pretext of going to see would-be wife of A-3 and when they were going towards Hisar in the car, a scuffle took place between Subhash and A-3. Thereafter, they took Subhash on Talwandi Rana minor and after giving beatings to him with danda, they strangulated him with the belt of car, and after covering his mouth with a polythene, they threw him in the canal after removing his pants. (iv) On 1.8.2005, the police recorded the statement of Suresh with regard to the aforesaid confession. (v) According to the prosecution, on 27.7.2005, A-1 surrendered in the court. On 30.7.2005, in the morning, after taking the remand of A-1, he was interrogated by the police in the court complex itself and his disclosure statement (Ex.P1) was recorded. Subsequently, on the same day, at Bus Stand, Hansi, his second disclosure statement (Ex.P7) was recorded, wherein he stated regarding the maruti car used in the offence, concealing of Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -8- the pants of deceased Subhash and a danda. He also stated that one day earlier to the occurrence, he, A-2, A-3 and accused Naveen had met together in the house of A-3, where mother of A-3 told that Subhash had harassed them very much and he be done to death. He further stated that after killing Subhash and throwing him in the canal, all the four accused again went to the house of A-3, where mother of A-3 served them meals and paid ` 7,000/- for their expenditure. On the basis of this disclosure, Shakuntala (mother of A-3) was also added as an accused under Section 120-B IPC. In pursuance of his disclosure statement (Ex.P7), A-1 got recovered a Maruti car (not produced in the court, therefore, not exhibited) from a field of village Petwar, which was taken into possession vide memo Ex.P9, in the presence of SI Bhoop Singh (PW.6) and Kuldeep (PW.8). A-1 also got recovered a danda (Ex.P14) and pants (Ex.P15) of the deceased, which were taken into possession vide recovery memo Ex.P10, in the presence of the same witnesses. Thereafter, on the same day, i.e. on 30.7.2005, A-2 was also arrested. He got recovered a danda (Ex.P25), which was taken into possession vide recovery memo Ex.P11, in the presence of both the aforesaid witnesses. (vi) On 1.8.2005, A-3, who was in custody in a case under the NDPS Act, was arrested in this case, after taking his production warrant. On interrogation, he suffered disclosure statement (Ex.P22), and got recovered a danda (Ex.P24) from the bushes near the canal, which was taken into possession vide recovery memo (Ex.P23), in the presence of Constable Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -9- Vijay Kumar. On the same day, accused Shakuntala was also arrested in this case. Nothing was recovered from her. 5. After completion of investigation, the police filed challan against the accused and charges under Sections 364 read with Section 120- B, 302 read with Section 34 and Section 201 IPC were framed against all the accused, to which they did not plead guilty and claimed trial. Prosecution evidence 6. In support of its case, the prosecution examined thirteen witnesses. 7. PW.1 HC Miya Singh proved the photographs (Ex.P1 and Ex.P2) of the dead body. 8. PW.2 EHC Maya Ram is the formal witness, who took the dead body to the Hospital and proved the parcel (Ex.P3) handed over by the doctor after the post mortem examination of the deceased. 9. PW.3 Balwan Singh Patwari proved the scaled site plan (Ex.P4) pertaining to village Beer Babran. 10. PW.4 Mange Ram, Clerk, Central Jail, Hisar, proved that A-3, who was confined in Central Jail, Hisar, in a case under the NDPS Act, remained on parole from 23.6.2005 to 22.7.2005. 11. PW.5 HC Jagdish Parshad is a formal witness, who tendered into evidence his affidavit Ex.P6 regarding non tampering of the case property. 12. PW.6 Sub Inspector Bhup Singh, a witness to recoveries, Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -10- effected at the instance of A-1 and A-2, proved the disclosure statements, made by A-1 and A-2, and the subsequent recoveries at their instance. 13. PW.7 Avtar Singh, Sarpanch, who noticed the dead body of an unknown person on 21.7.2005 and informed the police, proved his statement (Ex.P12) in this regard. 14. PW.8 Kuldeep, brother of deceased Subhash, a witness to the last seen, reiterated the facts, as stated by him in his statement (Ex.P13), proved the recoveries effected in his presence and fully supported the case of the prosecution. 15. PW.9 Suresh, another brother of deceased Subhash, who is a witness of extra judicial confession, proved the alleged extra judicial confession made by A-1 and A-2 before him. 16. PW.10 Dilbag Singh, retired Inspector, is a formal witness, who prepared the report under Section 173 Cr.P.C. 17. PW.11 Dr. Rajat Pankaj, who conducted post mortem examination on the dead body of an unknown person, has proved the Post Mortem Report Ex.P18. 18. PW.12 Mahender Singh SI, the Investigating Officer in the case, proved all the relevant documents, prepared by him during investigation of the case. 19. PW.13 SI Sajjan Singh conducted the initial investigation in the case. He proved the statement (Ex.P12) made by Avtar Singh Sarpanch, the inquest proceedings (Ex.P17) prepared by him, rough site plan (Ex.P27) of Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -11- the place, where the dead body of an unknown person was lying and the FIR (Ex.P19). Statements of accused under Section 313 Cr.P.C. 20. In their statements under Section 313 Cr.P.C., all the four accused denied the incriminating evidence appearing against them. They pleaded their innocence and took the plea that they have been falsely implicated in this case due to party faction in village Niyana between the complainant and A-3. However, no evidence was led by the accused in their defence. The findings of the trial court 21. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the evidence of last seen, extra judicial confession, motive, recovery and identification of the dead body by the complainant and his family members, the trial court convicted and sentenced the appellants, as mentioned in the earlier part of the judgment. However, while observing that except the disclosure statement of A-1 and A-2, which is not admissible in evidence, there is nothing on record to connect accused Shakuntala with the commission of crime, she has been acquitted by the trial court. Arguments of learned counsel for the appellants 22. Learned counsel for the appellants argued that case of the prosecution is based upon circumstantial evidence. According to them, the prosecution is relying upon five types of circumstantial evidence, i.e. the Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -12- motive, last seen, extra judicial confession, recovery and identification of the dead body by the complainant and his family members, but the prosecution has miserably failed to establish any one of these circumstantial evidence against any of the accused, beyond reasonable doubt. While referring to the statements of three material witnesses, namely PW.8 Kuldeep, who is a witness of last seen; PW.9 Suresh, before whom the alleged extra judicial confession was made by A-1 and A-2, PW.12 Mohinder Singh SI, who effected recovery on the basis of the disclosure statement made by A-1 and A-2, in the presence of PW.6 SI Bhup Singh and PW.8 Kuldeep, learned counsel argued that statements of all these prosecution witnesses are contradictory on material aspects, which create doubt in the entire prosecution version. 23. According to the learned counsel, evidence of the alleged motive of the crime is based upon the statement of PW.8 Kuldeep, who stated that he had heard that when his brother Subhash, A-3 and Hawa Singh were in judicial custody in the case under the NDPS Act, an altercation had taken place between his brother Subhash and A-3 in jail. Except the said statement, which is based upon hear-say, the prosecution did not lead any other evidence to establish the alleged motive. Neither any jail authority nor any jail record was produced by the prosecution to establish the factum of altercation between deceased Subhash and A-3 in the jail. Learned counsel further argued that the evidence of last seen is also concocted and unreliable. As per the statement (Ex.13) made by Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -13- complainant Kuldeep (PW.8), his brother Subhash was taken by the accused in their car on 16.7.2005 at about 7.30 PM from Bus Stand Niyana and they started searching for him after 2-3 days. He also reported the matter to the police and a DDR with regard to the missing of his brother was also got recorded, but the said DDR has been purposely withheld by the prosecution, because in that DDR, possibly the theory of last seen was not mentioned. While referring to the cross-examination of PW.8 Kuldeep, learned counsel pointed out that this witness has specifically admitted that in his statement (Ex.P13) made to the police, the factum of lodging the missing DDR did not find mention. Learned counsel further pointed out that the statement (Ex.P13) of PW.8 Kuldeep was recorded by the police on 27.7.2005, which contained the theory of last seen, but prior to that, on 26.7.2005 at about 7.00/7.30 PM, he became aware of the murder of his brother by the accused, because his brother Suresh (PW.9) had informed him about the extra judicial confession made by A-1 and A-2 before him, but in his statement (Ex.P13) before the police, complainant Kuldeep (PW.8) did not mention these facts. According to the learned counsel, this material contradiction completely demolishes the prosecution case. 24. Learned counsel for the appellants further argued that the third piece of circumstantial evidence, i.e. the evidence of extra judicial confession made by A-1 and A-2 before PW.9 Suresh, brother of deceased Subhash, is also wholly unreliable. While referring to the statement of PW.9 Suresh and PW.8 Kuldeep, learned counsel argued that this piece of Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -14- evidence is not only unreliable, but it appears to have been concocted. According to the learned counsel, it is highly improbable that A-1 and A-2 would go to the brother of deceased at his residence in his village, for making extra judicial confession, particularly when he was not known to them, at all, and who is neither a person in authority nor having any connection with the police. Learned counsel, while referring to the statement of PW.8 Kuldeep, argued that PW.8 Kuldeep in his statement has specifically stated that his brother Suresh (PW.9) had also disclosed to the police that A-1 to A-3 and accused Naveen were involved in the murder of his brother Subhash. He further stated that on 27.7.2005, when the police visited his village, his brother Suresh (PW.9) was present with the police. Learned counsel argued that in spite of the said fact, the police did not record the statement of PW.9 Suresh under Section 161 Cr.P.C., on that day, but it was recorded only on 1.8.2005. Learned counsel argued that actually, no extra judicial confession was made by A-1 and A-2 before PW.9 Suresh on 26.7.2005. Since A-1 himself had surrendered before the court on 27.7.2005, therefore, the police concocted the evidence of extra judicial confession subsequently, while recording the statement of Suresh (PW.9) under Section 161 Cr.P.C., on 1.8.2005. The police was bound to give the date of extra judicial confession of A-1 and A-2 as 26.7.2005, because on 27.7.2005, A-1 had surrendered in the court. Learned counsel further argued that the conduct of both the witnesses, namely PW.8 Kuldeep and PW.9 Suresh, creates doubt regarding the probability of the extra judicial Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -15- confession, made by A-1 and A-2. Learned counsel further pointed out that PW.9 Suresh, in his cross-examination, has specifically admitted that both the accused jointly made the extra judicial confession, which according to the learned counsel is not admissible in law. 25. While assailing the evidence of recovery, learned counsel argued that the recording of the alleged disclosure statements and the subsequent recoveries are highly doubtful. According to the learned counsel, there are many material contradictions in the statements of PW.6 SI Bhup Singh and PW.8 Kuldeep, who are witnesses of disclosure statements and the recovery memos, as well as the statement of PW.12 Mahender Singh SI, the Investigating Officer. While referring to the statement of PW.12 Mahender Singh SI, learned counsel pointed out that in his cross- examination, this witness has stated that in the beginning, A-2 was reluctant to disclose the fact, but when he (PW.12 Mahender Singh SI) assured him (A-2) that if he will disclose true fact, some lenient view will be taken against him and on this assurance, A-2 disclosed true fact. The same statement was made by this witness with regard to the disclosure made by A-3. While referring to this portion of the statement, learned counsel argued that the disclosure statement made by both these accused were based upon allurement given to them by the Investigating Officer and these were not their voluntary disclosures, therefore, the same cannot be considered legal one and the recoveries effected on the basis of such disclosure statements can not be relied upon. Crl. Appeals No. 865-DB of 2008 & 137-DB of 2009 -16- 26. Learned counsel for the appellants further argued that in this case, identification of the deceased has also not been established by the prosecution. While referring to the Post Mortem Report, learned counsel argued that the recovered dead body was fully putrefied and unidentifiable. PW.12 Mahender Singh SI, in his cross-examination, has also stated that the dead body was not identifiable.