IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: February 05, 2010 1. Criminal Miscellaneous No. M-24721 of 2009 Sanjay & Gandhi .....PETITIONER(S) VERSUS State of Haryana .....RESPONDENT(S) . . . 2. Criminal Miscellaneous No. M-27141 of 2009 Vaijainti .....PETITIONER(S) VERSUS State of Haryana .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Anshumaan Dalal, Advocate, and Mr. Sandeep K. Sharma, Advocate for the petitioners. Mr. Tarun Aggarwal, Senior Deputy Advocate General, Haryana. . . . AJAI LAMBA, J (Oral) By this Order, two petitions viz. Crl. Misc. No. M-24721 of 2009 [2] Criminal Miscellaneous No. M-24721 of 2009 titled `Sanjay @ Gandhi vs. State of Haryana’ and Criminal Miscellaneous No. M-27141 of 2009 titled `Vaijainti vs. State of Haryana’ shall be disposed of in view of the fact that petitioners in both the cases pray for similar relief i.e. regular bail under Section 439 Cr.P.C. in regard to the same incident/ FIR No.250 dated 5.9.2008 under Sections 302, 201, 120-B, 34 IPC registered with Police Station, Sadar, Rohtak. For reference to the facts, file of Criminal Miscellaneous No.M-24721 of 2009 is being taken up. Sequence of events as given out and not disputed is that Baljeet (deceased) son of Raj Singh left the house on 24.8.2008. On 27.8.2008 dead body of Baljeet was recovered whereupon a DDR came to be entered that has been placed on record as Annexure P-1, at the instance of Gulab Singh son of Jagat Singh who is the cousin of Baljeet (deceased) i.e. son of brother of father of Baljeet. As per recital in the DDR, the complainant gave out the case to the effect that Baljeet Singh had left the house on 25.8.2008 in the evening while saying that he was going to check crops in the field. He did not return home. Crl. Misc. No. M-24721 of 2009 [3] Thereafter, the family searched for Baljeet. A dead body was found lying in drain adjoining the road leading to the village. The complainant and Jagdish, another close relative, went there and saw that it was the dead body of Baljeet lying face down. It was identified to be the body of Baljeet by turning it over. As per the allegations, he had died due to slipping of foot while washing the hands after answering the call of nature. DDR entry, however, specifically recites that the complainant had no doubt regarding the death of Baljeet who was uncle’s son of the complainant. On 5.9.2008, FIR came to be lodged, at the instance of Gulab Singh, which has been reproduced in the body of the petition. As per the FIR, Baljeet left his house on 24.8.2008 on being called by some boys of the village on phone at about 11.00/12.00 PM. On 27.8.2008, the family came to know that dead body of a person is found lying in the drain. Without asking the wife of Baljeet, proceedings under Section 174 Cr.P.C. were concluded. Later, wife of Baljeet told that on the telephone of Baljeet, Rajesh (co-accused/ non-petitioner) son of Jagbir had spoken. Neetu had taken Baljeet near weighing scale of sugar mill on the motor-cycle of Rajesh, where Rajesh, Crl. Misc. No. M-24721 of 2009 [4] Satbir, Sanjay @ Gandhi were present. All these persons had consumed liquor. Rajesh had illicit relations with wife of Baljeet namely Vaijainti. To get Baljeet out of the way, Rajesh, Satbir and Sanjay @ Gandhi etc. murdered Baljeet and threw the dead body in the bushes in the drain so as to dispose it off. Even after lodging of the FIR, none was arrested. On 14.4.2009 i.e. after seven months of lodging of the FIR, Vaijainti (petitioner) is stated to have suffered an extra judicial confession before Jagat Singh (father of complainant-Gulab Singh), placed on record as Annexure P-3. As per Annexure P-3, Jagat Singh recites that Vaijainti had confessed to the effect that Baljeet (deceased) was a habitual drunkard and used to borrow money for the said purpose. Baljeet also forced his wife Vaijainti for doing wrong things. Rajesh used to have liquor with Baljeet (deceased) and had developed illicit relations with Vaijainti. On 27.8.2008, a body had been found in the drain in regard to which FIR had been registered against Rajesh, Sanjay @ Gandhi and Satbir. Despite best efforts, the said three persons did not give any clue about the murder. On 13.4.2009 i.e. a day before Crl. Misc. No. M-24721 of 2009 [5] Jagat Singh gave the statement to the police under Section 161 Cr.P.C. when he was sitting, Vaijainti came and said that she had committed a mistake. Baljeet used to force her to do wrong deeds. On 20.8.2008, Baljeet had given beatings to her in front of Rajesh. For the last 4-5 years, Vaijainti had illicit relations with Rajesh. On 21.8.2008 at about 10.30 AM, Rajesh had called Baljeet on phone. Out of anger, Vaijainti had asked Rajesh to get Baljeet out of the way. Rajesh promised that he would kill Baljeet by giving him a large quantity of liquor without water. On 24.8.2008, at 10.00 PM, Rajesh talked to Vaijainti on phone and asked to give some liquor to Baljeet and lateron, he would be finished after calling him and giving him liquor as discussed earlier. Vaijainti gave a bottle of liquor to Baljeet. During this period, Vaijainti had spoken to Rajesh 2-3 times on phone. At about 11.40 PM, Rajesh talked to Baljeet on phone and asked him to come to weighing scale near sugar mill upon which Baljeet (deceased) told that he had no mode of conveyance. In view of this, Rajesh sent Neetu son of Suraj Mal on his motor- cycle. After sometime, Neetu came there and as per pre-conceived plan, Baljeet was sent on the motor-cycle. Rajesh and Sanjay @ Gandhi killed Crl. Misc. No. M-24721 of 2009 [6] Baljeet by giving a large quantity of liquor without water. The petitioners in both the petitions were arrested on 15.4.2008. So far as cause of death as per medico legal report is concerned, opinion given by the doctor is to the effect that no definite opinion can be given regarding the cause of death, however, the cause of death could be sequel of ethyl alcohol. The sequence of events as given above is admitted by learned counsel for the respondent-State on reference to the investigation file. Learned counsel for the petitioner contends that it is a belated story. Prosecution has been changing the versions to its convenience. Further, custody of the petitioner shall not serve any legal purpose. Prosecution, despite adjournments given by the Court, has not led any evidence. Learned counsel for the petitioner has contended that Vaijainti has been implicated because the entire family of Baljeet (deceased) did not want Vaijainti to inherit anything. So as to implicate Vaijainti, even others have been implicated. Learned counsel for the respondent- Crl. Misc. No. M-24721 of 2009 [7] State, on instructions from Surinder Singh, Assistant Sub Inspector, has contended that there has been a subsequent event also, in so much as, Vaijainti tried to implicate three accused Rajesh, Satbir and Sanjay @ Gandhi in an attempted rape and on that count, FIR No.309 dated 21.10.2008 under Sections 376-G/34 IPC and Section 25 of the Arms Act was registered with Police Station, Sadar, Rohtak. The case, however, has been cancelled as no incriminating material could be found during investigation. I have considered the rival contentions in context of investigation file and the pleadings. The first version has come by way of DDR to which detailed reference has been made as above. The complainant does not point accusing finger at any person. FIR itself was lodged after a considerable delay of about 10 days. Arrest was not effected possibly because no material could be collected by the investigating agency. It is only after seven months of lodging of the FIR that extra judicial confession is stated to have been made by petitioner, Vaijainti, to Jagat Singh, father of Gulab Singh- complainant and a close relative of Baljeet (deceased). Crl. Misc. No. M-24721 of 2009 [8] Considering the facts and circumstances of the case in context of medico legal report, it can safely be concluded that Baljeet was used to consumption of heavy quantity of alcohol as it is the consistent case of the witnesses. In view of the circumstances that first version does not implicate anybody; FIR is delayed by 10 days; extra judicial confession was recorded after seven months of the lodging of FIR; two of the accused namely Neetu and Satbir have been left out by the prosecution from the array of accused; there is no definite opinion in regard to any homicidal act, the petitioners are entitled to the concession of bail. It also transpires that none of the witnesses has been recorded. The petitions are allowed. Bail to the satisfaction of the Chief Judicial Magistrate, Rohtak. Anything said hereinabove shall not be construed as opinion on merits of the case and observations have been made only so as to consider the issue of bail. (AJAI LAMBA) February 05, 2010 JUDGE avin Crl. Misc. No. M-24721 of 2009 [9] 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?