IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 773-DB of 2005 Dated of Decision:- February 25, 2009 Rajbir Singh and others ....APPELLANTS VERSUS State of U.T.Chandigarh ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE L.N.MITTAL Present:- Sh. Baldev Singh, Senior Advocate with Sh. Arshwinder Singh and Sh. Sudhir Sharma, Advocates for the appellants. Sh. G.S.Chahal, APP for the U.T. ------ MEHTAB S.GILL, J. This is an appeal against the judgment dated 11.8.2005 of the learned Addl. Sessions Judge, Chandigarh, whereby he convicted Rajbir Singh son of Fateh Singh and Baljinder Singh son of Jai Narayan under Section 302 IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.1,000/- each or in default to further undergo one year R.I. He convicted Babli wife of late Ajmer Singh under Section 302 read with Section 34 IPC and sentenced her to undergo life imprisonment and to pay a fine of Rs.1,000/- or in default to further undergo one year R.I. All the accused were further convicted under Section 201 IPC and sentenced to 2 Criminal Appeal No. 773-DB of 2005 undergo three years R.I. and to pay a fine of Rs.1,000/- each or in default to further undergo six months R.I. Further they were convicted under Section 342 IPC and sentenced to undergo three years R.I. Sentences were ordered to run concurrently. The case of the prosecution is unfolded by the statement Ex.P1 of Om Parkash given to SI Partap Singh. Om Parkash stated that he is a permanent resident of Village Bishanpur Shiv Ram, P.S. Valwa Bazar, District Sapeel, Bihar, now residing in H.No.5215, Modern Complex, Manimajra. He was aged about 18 years. He stated, that for about 2 months, he had been working as the domestic servant in H.No.5215, Modern Complex, Manimajra, in the house of Ajmer Singh. Ajmer Singh was residing with his wife Babli. Rajbir Singh, Bajinder Kumar Tayal @ Kala used to visit Ajmer Singh and used to stay with him. Ajmer Singh had taken a room in Panchkula on rent, where he kept girls brought from different places. He indulged in prostitution of the girls and made money out of it. Rajbir and Bajinder Kumar were also with him in this business. A dispute took place between Ajmer Singh on the one side and Bajinder Kumar on the other side, regarding distribution of money. Rajbir Singh and Bajinder Kumar said, that they would carry on the business of prostitution separately. On two occasions, they did the business separately, but Ajmer Singh did not let them be successful. They were upset over this and wanted to punish Ajmer Singh for this. Babli, who claimed to be the wife of Ajmer Singh, was also not happy with Ajmer Singh. Ajmer Singh sent money, which he earned from her illegal activities, to his actual wife who lived in his village. On 20.9.2001 Bajinder and Rajbir Singh came to the house of Ajmer Singh in Modern Complex, Manimajra, in the 3 Criminal Appeal No. 773-DB of 2005 evening. Om Parkash made food and they ate and talked with each other. At about 12.00 in the night, Ajmer Singh went to sleep, but the others did not go to sleep. At about 1.30 a.m. Rajbir Singh and Bajinder Kumar told him, that they had made a plan to kill Ajmer Singh. They had brought two iron rods and told him to keep silent about it. Om Parkash was made to stand in a corner of the room in which Ajmer Singh was sleeping. Bajinder Kumar then took out the iron rod and hit Ajmer Singh on the head. Babli caught hold of both the legs of Ajmer Singh and exhorted the others not to leave him alive. Thereafter Rajbir Singh gave an iron rod blow on the head of Ajmer Singh. Bajinder Kumar also gave more iron rod blows on the head of Ajmer Singh. Several more blows were given. Ajmer Singh received grievous injuries on his head. Blood got splashed on the wall. Blood started coming out of the head of Ajmer Singh. Thereafter Rajbir Singh and Bajinder Kumar dragged the dead body of Ajmer Singh to a toilet and put the head of Ajmer Singh on the toilet sheet and opened the tap water to wash his head. They took off the blood stained clothes and threw them in the bathroom. Rajbir Singh, Bajinder Kumar and Babli threatened Om Parkash, that if he told the incident to anyone, he would also be killed. At about 4.00 a.m. after locking the house from outside and leaving Om Parkash inside, they went away in a car along with the dead body. They came back at 3.00 p.m. and had brought along with them some white washing material. They used this material to clean the walls where blood was splattered. At about 4.00 p.m., they sent Om Parkash to the market to bring milk. In the market, he met Harjit Singh President of the complex. He told him the whole story, who advised him to tell it to the police. Om 4 Criminal Appeal No. 773-DB of 2005 Parkash and Harjit Singh were going to the police station to lodge a complaint, when they met SI Partap Singh on the way. On the basis of this statement, FIR Ex.P1/B was recorded on 21.9.2001 at 9.10/10.15 p.m. The special report reached the Duty Magistrate, Chandigarh, on 22.9.2001 at 1.00 a.m. The prosecution to prove its case brought into the witness box, Rajesh Kumar PW1, Om Parkash PW2, C. Mohinder Singh PW3, Kharaiti Lal PW4, Harjit Singh PW5, Raj Singh PW6, HC Rajinder Parshad PW7, C. Rajesh Kumar PW8, HC Lakha Singh PW9, SI Partap Singh PW10, Kamlesh Chand PW11, Gur Iqbal Singh PW12, C.Vinod Kumar PW13, Inspector Sukhpal Singh PW14, Simi Kohli PW15, Sucha Singh PW16, C. Parkash Singh PW17, Dr. Monika PW18, Jasbir Singh PW19, C. Yash Pal PW20, C. Suresh Kumar PW21, HC Zile Singh PW22, C. Navtej Singh PW23, Dr. R.N.Tripathi PW24 and Tithi Dey PW25. C. Naresh Kumar DW1 was examined in defence. Learned counsel for the appellants has argued, that there are two witnesses i.e. Om Parkash PW2, the alleged eye witness and Harjit Singh PW5 to whom the whole story was narrated, on which the prosecution’s case is standing. Both these witnesses are untruthful. Nothing has come on record as to why Om Parkash PW2 kept quiet for 18 hours and stayed inside the house. He did not make any noise and did not shout for help. He could easily have left the house after breaking open the door or by breaking open the windows. His conduct is improbable. In fact he was not present at the time of the occurrence and was implanted as a witness at a later stage. Appellants had gone away at 4 a.m. on 21.9.2001 5 Criminal Appeal No. 773-DB of 2005 and did not come back till 6.00 a.m., as stated by Om Parkash PW2 in his statement before the Court. The unexplained delay in lodging of the FIR after 19 hours is itself sufficient to throw out the case of the prosecution. This time was utilized by the Investigating Officer to falsely implicate the appellants. The alleged recovery of the dead body at the instance of the appellants is doubtful, as the date and time of death and discovery of body as shown in Inquest report Ex.P101 is 21.9.2001 at 8.00 p.m. Appellants were as per the Investigation officer arrested on 22.9.2002, while they were coming in a car, which was stopped at a naka. Appellant Rajbir Singh has stated in his statement under Section 313 Cr.P.C., that he was at a party, he in fact on the fateful night was not present in Manimajra. Learned counsel for the State has argued, that Om Parkash PW2 is a 18 years old boy. He was the servant of Ajmer Singh and had been employed only two months earlier. He in fact is an independent witness. There was no need for him to give statement Ex.P1 against the appellants, having been employed only two months earlier. A suspicion could be cast on his statement, if he had been the servant of Ajmer Singh for a long time, his loyalty to Ajmer Singh then would have come into question. He in fact was very disturbed and could not cope with himself regarding the death of his master Ajmer Singh and thus unburdened himself by going to the police. At 4.00 p.m. on 22.9.2001, when he went out to fetch milk, he told about the occurrence to Harjit Singh PW5, who then took him to the police station. The blood group of the deceased was ‘A’ and it was detected as per the FSL report Ex.P108. 6 Criminal Appeal No. 773-DB of 2005 There is no delay in the lodging of the FIR. Om Parkash PW2 was a stranger. He was locked up in the house and was told by the appellants not to say anything, otherwise he would be eliminated. He was a young boy and was disturbed and stunned by the murder of Ajmer Singh right in front of his eyes. Document Ex.P119, which is FIR registered against deceased Ajmer Singh, appellant Rajbir Singh and one Sunita Devi under Section 109 IPC, shows that the deceased and the appellant were indulging in immoral trafficking of women. We have heard the learned counsel for the parties and perused the record with their assistance. Om Parkash PW2 is the star witness of the prosecution. In his testimony before the Court, which corroborates FIR Ex.P1/B, he has stated that he is 18 years old. He worked with deceased Ajmer Singh for 2/2½ months prior to the death of Ajmer Singh. Appellants Rajbir Singh and Baljinder @ Kala used to come to the house of Ajmer Singh and all of them were indulging in prostitution of girls. He recognized appellants Rajbir, Baljinder and Babli in Court. He has further stated, that a quarrel took place between appellants Rajbir, Baljinder and deceased Ajmer Singh for sharing of money earned in prostitution. Appellant Babli was aggrieved against Ajmer Singh, as he used to send money, which he earned, to his wife and family, who were staying in his village. Appellant Babli was also upset over this fact, that the money which she earned by prostitution, he would not give it to her. Appellants wanted to take over the profession of prostitution from Ajmer Singh. 7 Criminal Appeal No. 773-DB of 2005 He (PW2) has narrated the occurrence meticulously. He has further stated, that appellants Rajbir and Baljinder came at about 4.00 p.m. in the evening on 20.9.2001 and in the night at 1.30 a.m. on 21.9.2001, when Ajmer Singh had gone to sleep, appellant Babli caught of the legs of Ajmer Singh and both appellants Rajbir and Baljinder hit Ajmer Singh with rods on his head. After washing the blood of body, they took it away. Appellants threatened Om Parkash PW2, that they would eliminate him, if he told it to anyone. Statement of Om Parkash PW2 is corroborated by the statement of Harjit Singh PW5, who has stated, that he met Om Parkash PW2 in the market in the evening, where Om Parkash PW2 told the whole story to him on 21.9.2001. Harjit Singh PW5 then took him to the police station, where FIR Ex.P1/B was recorded. Further corroboration is given to the statement of Om Parkash PW2 by Kamlesh Chand PW11, who has stated in his testimony, that he sold two rods to the appellants. Om Parkash PW2 in fact is a natural witness, being the servant of deceased Ajmer Singh. It was natural for him to be in the house in the evening to prepare food for the night and especially when appellants Rajbir Singh and Baljinder Singh had come. The delay in lodging of the FIR has been adequately explained by the prosecution. Om Parkash PW2 was a stranger to the whole situation. He had joined the service of Ajmer Singh deceased as a servant only about 2/2½ months prior to the occurrence. He was a young boy of 18 years and was threatened by the appellants that he would meet the same fate, as his master Ajmer Singh had met, if he told anyone about the murder of Ajmer Singh. He in fact at that time must have been under extreme stress after seeing the gruesome murder of Ajmer Singh right in front of his eyes. 8 Criminal Appeal No. 773-DB of 2005 Learned counsel for the appellants has argued, that Om Parkash PW2 in his testimony has stated, that the appellants after going at 4.00 a.m. on 21.9.2001 came back at 6.00 a.m. This aspect has been clarified by the public prosecutor, when he cross-examined Om Parkash PW2, where Om Parkash PW2 has clarified that it is not that appellants had come back at 6 a.m., but they came back at 3.00 p.m. on 21.9.2001. Appellants on 21.9.2001 at 4.00 p.m. sent Om Parkash PW2 to fetch milk from the market. It is at that time, he met Harjit Singh PW5, to whom he narrated the occurrence. The dead body of the deceased was recovered on the statements of the appellants given to SI Partap Singh PW10, whereby the appellants made disclosure statements that the dead body of Ajmer Singh had been thrown in a nala in Sector 12-A, Panchkula. Disclosure statement of appellant Babli is Ex.P49. Disclosure statement of appellant Rajbir Singh is Ex.P50 and the disclosure statement of appellant Baljinder Singh is Ex.P51. All the appellants after giving their disclosure statements led the police party, where they hid the dead body and one by one pointed out the place in front of House No. 629, Sector 12-A, Panchkula, from where the dead body was recovered. It was the appellants, who only knew where they had thrown the dead body. The dead body was taken into possession vide memo Ex.P52. Learned counsel for the appellants has laid stress on Inquest report Ex.P101. It has been mentioned in column No.3 “Date and hour of discovery of Death” as being 21.9.2001 at 8 p.m. Appellants were arrested on 22.9.2002 and thus they could not have pointed out the place where the dead body was lying. In column No.3 of Inquest report Ex.P101, it has 9 Criminal Appeal No. 773-DB of 2005 been stated regarding date and hour of discovery of death and not discovery of the body. The Investigating Officer has stated, that on 21.9.2001 he came to know about the death of Ajmer Singh and in consequence thereof, they registered FIR Ex.P1/B on the same evening at 9/10 p.m. Gur Iqbal Singh PW12 heard the appellants conspiring to kill Ajmer Singh. His evidence is cogent and inspire confidence. Dr. Monika PW18, who performed the post-mortem on the body of Ajmer Singh, found the following injuries on his person: - “ External injuries: 1. Lacerated wound 9 cm x 0.5 cm. Skull cavity deep present on left parietal temporal area, horizently placed 4 cm directly above left ear, skull underneath is depressed and defound in an area 15 cm x 10 cm. brain matter oozing out in the form of a greenish, external appearance semi solid pulpy material. 2. Lacerated wound 11 cm x 4 cm skull cavity deep present, 3 cm below and behind injury No.1, skull underneath is depressed and defound. 3. Lacerated wound 5 cm x 3 cm over the left ear, cutting the ear lobule and pinna. 4. Contusion in an area 15 cm x 10 cm covering hole of left side of face and neck left side black. Internal examination: Depressed and communicated fracture involving left fronto temporal and parietal area with sutural separation of coronal sutura, brain inside is completely putrified and oozed out on opening the scalp area. Wall ribs and cartilages parallel cavity, larynx acachta, -NAD, lungs soft and pulpy, paritonium putrifying gases present”. 10 Criminal Appeal No. 773-DB of 2005 The medical evidence corroborates the version put forward by the eye witness Om Parkash PW2. With the above discussion and observations, we do not find any infirmity in the judgment of the learned trial Court. Appeal is dismissed. (MEHTAB S.GILL) JUDGE (L.N.MITTAL) February 25, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO