Criminal Appeal No.235 DB of 2005 1 IN THE HIGH COURT OF PUNAJB AND HARYANA AT CHANDIGARH Date of decision: January 21, 2008 Criminal Appeal No.235 DB of 2005 Satish .....Appellant vs. The State of Haryana ......Respondent Criminal Appeal No.22-DB of 2004 The State of Haryana .....Appellant vs. Satish .....Respondent Criminal Appeal No.333 DB of 2003 Satish ......Appellant v. The State of Haryana ......Respondent Criminal Appeal No.3-DB of 2004 State of Haryana .....Appellant v. Satish .....Respondent Criminal Appeal No.505 DB of 2003 Satish ......Appellant vs. The State of Haryana .....Respondent Criminal Appeal No.235 DB of 2005 2 Criminal Appeal No.17-DB of 2004 The State of Haryana .....Appellant vs. Satish .....Respondent Criminal Appeal No.506 DB of 2003 Satish .......Appellant vs. The State of Haryana ......Respondent Criminal Appeal No.10-DB of 2005 State of Haryana .......Appellant vs. Satish .......Respondent Criminal Appeal No.1239 SB of 2004 State of Haryana ...Appellant vs. Satish ....Respondent Criminal Appeal No.14-DB of 2004 State of Haryana .....Appellant vs. Satish ......Respondent Criminal Appeal No.16-DB of 2004 State of Haryana ......Appellant vs. Satish .....Respondent Criminal Appeal No.70-DB of 2004 State of Haryana ....Appellant vs. Satish .....Respondent Criminal Appeal No.235 DB of 2005 3 Criminal Appeal No.83 DB of 2004 State of Haryana ......Appellant vs. Satish ......Respondent CORAM: Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice S.D.Anand Present: Mr. Kapil Aggarwal, Advocate, Mr. Arvind Kashyap and Ms. Jyoti Chaudhary, Advocates, for the accused. Mr. Kulvir Narwal, DAG,Haryana for the State. JUDGMENT: 1. This order will dispose of Criminal Appeal Nos.235 DB of 2005, 333 DB of 2003, 505 DB of 2003 and 506 DB of 2003, all filed by Satish accused against his conviction for the offence of murder and attempt to rape of deceased Puja, Jony, Sweta and Kuki alias Karuna respectively. It has been brought to our notice that Criminal Appeal No.1171 SB of 2003 filed by the said accused for offences under Sections 364/376/511 IPC in respect of Somani has been disposed of on 18.3.2004, the said appellant having completed the substantive sentence of seven years RI. 2. Apart from the above set of four appeals, this order will also cover Cross Appeals of the State in the said four cases, being Criminal Appeal Nos.22-DB of 2004, 3 DB of 2004, 17 DB of 2004 and 10 DB of 2004, seeking enhancement of sentence. Criminal Appeal No.235 DB of 2005 4 3. We have also taken on Board Criminal Appeal No.1239 SB of 2004 filed by the State which was a cross appeal arising out of the same incident out of which the accused had filed Criminal Appeal No.1171 SB of 2003, which stands disposed of by order of Single Bench of this Court dated 18.3.2004, seeking enhancement of sentence. 4. There is another set of four appeals filed by the State being Criminal Appeal Nos. 14 DB, 16 DB, 70-DB and 83-DB of 2004, all filed by the State seeking enhancement of sentence awarded to the same accused under sections 364/376/302 IPC, wherein the victims were Arti, Sheetal, Shanti and Janno. We have been told that in respect of the said offences, there is no appeal by the accused. 5. Before we give the details of the nine incidents which are involved in these sets of cases, we may mention that the common factor in all the cases is the same accused who made confession of guilt under section 164 Cr.PC, which is the main basis of his conviction. However, apart from confession, there is a polygraph test and substantive evidence of the victim in Criminal Appeal No.1171 SB of 2003 as Somani (victim) was not killed, while eight other victims are alleged to have been killed by the accused – after attempt to rape. 6. The nine incidents are briefly referred to as under:- Criminal Appeal No.235 DB of 2005 5 Criminal Appeal No.333 DB of 2003 and Criminal Appeal No.3 DB of 2004 (Victim Jony). On 14.10.1995 at 2.10 PM, Jony, aged six years, had gone out of her house with her uncle Sudesh. Sudesh came home at 2.30 PM alone. Sheela Devi, wife of Azad Singh, mother of Jony asked Sudesh where Jony was. He said Jony had gone with him but was left outside the house playing. Search was made for Jony in the colony but she was not found. No clue was found. At 9.15 PM, Sheela Devi reported the matter to SHO, PS City Bahadurgarh on which FIR No.326 dated 14.10.1995 was registered. Dead body of Jony was searched out on 15.10.1995 at 2 PM. It was during investigation of FIR No.524 dated 19.11.1998 (giving rise to Criminal Appeal No.1239 SB of 2004) that the accused was arrested. He was also arrested in another identical case being FIR No.363 dated 7.9.1998 wherein he was produced before Dr. Bibha Rani, Lie Detection expert on 1.12.1998. he disclosed that he had lifted a small girl in Shankar garden and had taken her to a drain across the fields and attempted to commit rape on her and strangulated her to death. The said report was taken on record of the Court as Ex.PR dated 9.12.1998. On 10.12.1998, the accused was produced before a Magistrate in another Criminal Case being FIR No.232 dated 12.7.1995 for obtaining his personality profile test from the Mental Hospital. He was kept under observation of Criminal Appeal No.235 DB of 2005 6 Dr. Rajiv Gupta at PGIMS Rohtak, who examined him from 10.12.1998 to 23.12.1998 and formed an opinion that he was not suffering from any psychotic disorder but was having a Neurotic type of personality. The report is Ex.PU. On 19.12.1998, application Ex.PJ was made by the accused to Dr. Rajiv Gupta for a confessional statement. The application was forwarded to the Area Magistrate through ASI Rohtas Singh. The accused was produced in Court on 21.12.1998. The Magistrate adjourned the matter to the next date vide order Ex.PL to give one day's time for reflection and giving a second thought to the matter. It was explained to the accused that he was not bound to make confessional statement and in case it was made, it could be read against him. On the next day i.e. 22.12.1998, the accused was again produced and after enquiries, the Magistrate was satisfied that the accused willingly wanted to make confessional statement. After his identification, his confessional statement was recorded being Ex.PN. The Magistrate gave his certificate Ex.PN/1. The accused admitted involvement in 14 cases of same nature. In FIR No.232 dated 12.7.1995 under sections 364/376/302 IPC, the accused was produced for obtaining orders for taking sample of semen. The Magistrate passed such an order after taking the consent of the accused. In the present case, the accused was arrested on 26.12.1998. He made disclosure statement pointing to Criminal Appeal No.235 DB of 2005 7 the place from where the girl was kidnapped. He also pointed to the place where the dead body of the girl was thrown. Earlier, samples of vaginal swab and clothes of the girl were sent to FSL for chemical analysis and the report received was that no semen could be detected. Charge was framed against the accused under sections 364/302 IPC. The accused pleaded not guilty. The prosecution examined Dr. PK Paliwal PW1 who conducted post mortem on 16.10.1995. According to him, cause of death was manual strangulation. It may be mentioned that one Ram Babu was also arrested in the present case but he died during the trial. Badan Singh SHO PW6 filed challan against the present accused. PW13 Shyam Sunder, Patwari of the area proved the scaled site plan. Sheela Devi, mother of the deceased appeared as PW4. Baljeet appeared as PW5. Dr. Bibha Rani appeared as PW9 and DSP Rohtas Singh appeared as PW14. The accused denied the prosecution allegations. After considering the matter on record, the trial court held the case of the prosecution to be proved against the accused mainly on the basis of his confession, which was held to be voluntary. The trial court relied upon judgement of the Hon'ble Supreme Court in State of T.N. v. Kutty, AIR 2001 SC 2778, to the following effect:- “13. It is not the law that once a confession was Criminal Appeal No.235 DB of 2005 8 retracted the Court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard. 14. We are unable to understand how a judicial confession would become bad by reason of the fact that articles belonging to the victims were recovered prior to the making of the confession. That aspect, instead of vitiating the confession, could be a factor in favour of the voluntariness of the confession. When the culprit finds that the articles concealed by him are all disinterred it is possible that he might feel that there is no use in concealing the facts any more. Then he may desire Criminal Appeal No.235 DB of 2005 9 to make a clean brast of everything to any person or authorities.” It was further observed that disclosure statement pointing out the place of lifting of the girl or place of throwing of the body can provide corroboration to the statement under section 164 Cr.PC apart from medical evidence. It was held that earlier trial against Ram Babu did not affect the present trial. 7. Learned Amicus Curiae for the accused appellant submitted that the accused was entitled to be acquitted. His conviction solely on the basis of retracted confession was not valid as there was no corroboration. Disclosure statement of the accused was of no significance as the place of picking up of the victim or the place of recovery was already known to the police. The medical evidence was also of no significance. The confession could not be taken to be voluntary. He referred to the manner of recording of confession laid down under section 164 of the Code of Criminal Procedure and Chapter 13 of the High Court Rules and Orders Volume III. He also relied upon a DB judgment of the Guwahati High Court in State of Assam v. Rabindra Nath Guha, 1982 Crl.L.J 216, observing that recording of confession without providing free legal aid was illegal. He also relied upon observations of the Hon'ble Supreme Court in Mahabir Singh etc. v. State of Haryana, 2001(3) RCR (Criminal) 685, para 22 to the Criminal Appeal No.235 DB of 2005 10 effect that the Magistrate must inform the accused, before taking the confession that accused was not bound to make confession and if he did so, the same could be used as evidence against him. He next relied upon judgement of the Hon'ble Supreme Court in Abdulvahab Abdulmajid Shaikh and others v. state of Gujarat, (2007) 2 SCC (Cri) 276 that in every case, it must be determined whether confession was voluntary or not. 8. Learned counsel for the State supported the impugned judgment and also referred to the proceedings for recording of confession dated 21.12.1998 and 22.12.1998. 9. The zimine orders passed by the Magistrate on 21.12.1998 and 22.12.1998, Exs. PL and PM, are as under:- Order dated 21.12.1998 “Accused produced before me and his application for confession the guilt has already been received in this Court, forwarded by Dr. Rajiv Gupta. Accused wants to confess to his guilt. It is made clear to him that he is not bound to make any confessional statement and if he does so then, the same will be read in evidence against him. He has been given time to reconsider. Now to come up on 22.12.1998 for recording of confessional statement of accused, if any. Accused be produced tomorrow in this Court till then, he is remanded to judicial custody.” Criminal Appeal No.235 DB of 2005 11 Order dated 22.12.1998 This statement of accused Satish s/o Brijpal age 25 years r/o 6 Netaji Nagar, Linepar Bahadurgarh has recorded under section 164 Cr.PC on his own request which was received in this Court duly forwarded by Dr. Rajiv Gupta PGIMS, Rohtak. This statement is recorded today on 22.12.1998 at 3 PM., in my court room. Accused is already in judicial custody and he was warned yesterday not to make confessional statement, if he does so then same will be read against him in evidence. Today, he is present and shall want to confess his guilt. He has been identified by Rohtash Singh ASI PP Sector 6 HUDA Bahadurgarh. There is an endorsement by the learned Magistrate as under:- “At this stage after identified, I have asked ASI Rohtash Singh to unlock Handcuff of accused and he did so. I asked every body to leave court room including my reader. Now, there is none except me and accused in the court room. Get his statement be recorded. I have disclosed my identity to accused and asked him to disclose truth.” There is further endorsement by the learned Magistrate as under:- “It is certified that I have explained to Satish that he is not bound to make a confession and that if he does so, any confession he made may be used evidence against him. I believe that his confession was voluntarily made. It was taken in my Criminal Appeal No.235 DB of 2005 12 handwriting and was read over to accused Satish and admitted by him to be correct. It contains full and true account of statement made by him.” 10.The Magistrate also put certain questions to ascertain whether the accused was making statement under any pressure, fear or greed. The accused stated that his statement was voluntary. He stated that he picked up 14 girls out of whom he killed 10. He did not know the name of any of them. Then he gave details of 14 girls. Ex.PJ is an application dated 19.12.1998 by the accused to the doctor that he wanted to make confessional statement before the court. The confessional statement of the accused is to the following effect:- “Statement of accused Satish s/o Brijpal. Q. Do you know that you depose the statement will be read in evidence against you. A. Yes, Sir. Q. Have any mental pressure, fear and greed upon you for depositing the statement. A. No, Sir. Q. When you started lifting the girls. A. I started lifting the girl before 3-4 years. Q. Who many girls were lifted by you and how many were murdered and what had been done. A. I have lifted fourteen girls out of them 10 girls was murdered. Four girls are left alive. I do not know the name of any girls. Criminal Appeal No.235 DB of 2005 13 First of all, I lifted a girl before 3-4 years from between Ghevra turning and Nizampur village. I have leaving her in the field of wheat nearby road of Bamnouli turning. I have lifted second girl aged about 8-9 years from a marriage function Gali no.4 Netaji Nagar at about 9- 10 P.M. There was winter session. I took her into the field of Sarso. I tried to rape upon her thereafter that I murdered her having pressing her throat. I have lifted third girl aged about 8-9 years from nearby Parnala village. I took her into Bidoras and I tried to rape upon her. After that I have murdered her by pressuring her throat. I have lifted fourth girl from nearby Bus stand Bahadurgarh. That girl was lifted in slept condition and took in a biteras in the village Parnala. I tried to rape with her and murdered him. I have lifted fifth girl from Nahra Nahri Road where Ram Lila was functioning. There was some winter season. I took her into the Kothra of village Parnala. I tried to rape. I have lifted sixth girl from Nehru Park, Bahadurgarh. I tried to rape upon her in the field of Dencha between village Parnala and Nizampur. I tried to rape with her. I do not know she died and alive. I have lifted seventh girl nearby a temple which is on the road of Nehru Park. I also took her in the Kothra of village Parnala. I tried to rape and press her throat. After that it has come to know my knowledge that she has alive. Criminal Appeal No.235 DB of 2005 14 After that I have lifted a girl from School nearby Subzi Mandi in the day time. There was a summer season. I took her towards Parnala village. I tried to rape upon her in the vacant plot and after that I murdered her by pressuring her throat. After that I have lifted a girl from Shanker garden aged about 7 years. I took her into the park, tried to rape upon her and murdered by pressuring her throat. After that I have lifted a girl aged about 7-8 years from near a pencil Factory. I tried to rape upon her in the Nala nearby bridge and murdered by pressuring throat. After that I lifted a girl from Bamnouli turning. I took her nearby Chour Paiu. I tried to rape with her near a Pipal tree. The dead body was thrown there after murdered her. I have lifted a girl from Shanker garden nearby her house. She was worn white clothes. I took her near Nala. I tried to rape with her and after that I have committed her murder. I have lifted a girl from the M.I.E. Area in the night time. There was a summer season. I took her some distance in a vacant plot having boundary. I tried rape upon her there and murdered after tied her hands by pressuring throat. After that I went for feeling sorry near her house, where her family members were sleeping. I tried to woke up a lady, but I cannot feel sorry by fear. I came from there. In which case I am arrested that girl was lifted from Chappal factory. I took her my house. I lifted her Criminal Appeal No.235 DB of 2005 15 at about middle of day time. I remained her whole night. I tried to rape upon her in the two time. On that day my younger brother and sister were present. I told them that she is a daughter of contractor. After that I left her near the vacant factory in the morning. I pressed her throat and I run away. Next day police has come in my house with girl. My brother has told that I am working in tin factory where police has arrested me. Q. What else you want to say? A. No, Sir.” 11. Since the facts are by and large identical in all other cases, it will be appropriate to make a brief reference to the said cases before appreciating the rival contentions. Crl.A.No.1171 SB of 2003 12. Somani, aged 9 years, PW13, daughter of Lalu Ram PW4 and Sarla Devi PW 15, was picked up by the accused on 19.11.1998 from the tea shop of Lalu Ram in front of Chappal factory, Bahadurgarh. After having failed to search her, Lalu Ram went to police post, MIE area Bahadurgarh and met Rajender Singh SI near Hanuman Weighing bridge, who happened to be there in connection with investigation of FIR No.513. His statement Ex.PD was recorded which led to registration of FIR No.524 dated 19.11.1998. The girl was recovered next day. Her statement was recorded. The girl led the police and her father to the place from where she was picked up. DSP Suman Manjri and DSP Criminal Appeal No.235 DB of 2005 16 SP Ranga also came to the spot. The girl took the police party to the house of the accused which led to apprehension of the accused. The accused made a disclosure statement Ex.PAC. Sample of semen was taken. On 1.12.1998, he was produced before Dr. Bibha Rani, Lie Detection Expert in another case being FIR No.363 dated 7.9.1998. She gave her report Ex.PG dated 9.12.1998. He was sent to the PGIMS Rohtak where he was examined by Dr. Rajiv Gupta. He made application for making confessional statement. Confession statement was accordingly recorded by the Magistrate in the manner already mentioned above. The trial court after considering the evidence on record convicted the accused. Appeal of the accused has already been disposed of as mentioned above, the accused having completed the sentence awarded. The conviction of the accused under sections 364/376/511 having become final, the only question in the State appeal is of enhancement of sentence. 13. Criminal Appeal No.83 DB of 2004 On 12.6.1996 at 9 PM, Janno, daughter of Salamudin PW7 was sleeping in front of her house with her parents. At 4 AM, when PW7 Salamudin woke up, he found that his daughter was missing. On failing to search her, they found dead body of Janno in a ditch of water near Badro canal. He went to the police and his statement was recorded by Sajjan Kumar SI. FIR was registered Criminal Appeal No.235 DB of 2005 17 and investigation was conducted. Investigation was conducted by DSP Suman Manjri. The accused had been arrested in another case and on his disclosure statement, he was arrested in the present case also. He was sent for lie detection test. He was also sent to hospital. At his initiative, his statement under section 164 Ex.PZ was recorded. Dr. Subhash Juneja PW19 was also examined. The trial court convicted him on the basis of confessional statement, which was corroborated by his disclosure statement pointing out the place of lifting of the girl and throwing of the dead body and the medical evidence. As per information available, the accused has not challenged his conviction. He has been sentenced to undergo life imprisonment under the sentences. Only question is whether sentence is liable to be enhanced. 14.Crl.Appeal No.70 DB of 2004 Roop Bahadur PW6 was a Nepali, serving as a watchman in the godown of Rishab Kumar Jain, resident of Bahadurgarh. On 14.3.1997, his daughter 5-6 years old left the house. Roop Bahadur could not search her. On the next morning, dead body of the girl was recovered from the pond of village Parnala. He went to police station and reported the matter vide DDR No.10 dated 15.3.1997ASI Chand Mohd. prepared inquest Criminal Appeal No.235 DB of 2005 18 report and got conducted post mortem. As mentioned in other cases, the accused was arrested in the present case and he made a confessional statement which was corroborated by disclosure statement and medical evidence which was held to be sufficient for his conviction by the trial court. He was given life imprisonment under the sentences. As per information available, the accused did not prefer any appeal. The State has preferred appeal for enhancement. 15. Criminal Appeal No.14 DB of 2004 Dinesh PW3 was an employee in Vijulka factory at Bahadurgarh. He had gone for the night shift on the night between 6th and 7th September 1998. At about 3 AM, his son went to him and told him that his daughter Aarti was missing from the house. He went to police and lodge report with Rohtas Singh ASI, Police Post MIE area, Bahadurgarh. His statement Ex. PE was recorded on which FIR was registered. On search, dead body of Aarti was found on 9.9.1998 in a deserted enclosure in