Crl. Appeal No.551-DB of 2000 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.551-DB of 2000 Date of Decision: 09.05.2008 Sandeep ....Appellants. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Jora Singh. Present: Mr. Sumeet Goel, Advocate for the appellant. Mr. Ravi Dutt Sharma, D.A.G., Haryana for the respondent. ... J.S. Khehar, J. Through the instant appeal the accused/appellant Sandeep has impugned the judgement rendered by the Additional Sessions Judge, Hisar, in Sessions Case No.21 of 1999, decided on 3.10.2000, by which he has been held guilty of having committed the murder of Nathu Ram and Shanti Devi, and has, accordingly, been convicted under Section 302 of the Indian Penal Code. The accused/appellant Sandeep has also impugned the order dated 5.10.2000, whereby, the Additional Sessions Judge, Hisar, has sentenced the accused/appellant Sandeep to undergo imprisonment for life, and to pay a fine of Rs.20,000/-, under Section 302 of the Indian Penal Code. In default of payment of fine, the accused/appellant Sandeep has Crl. Appeal No.551-DB of 2000 2 been ordered to undergo further rigorous imprisonment for two years. The prosecution version of the incident emerges from the complaint made by Dinesh Kumar PW14 to SI Virender Singh PW11, on 22.3.1999, wherein he asserted that he was a resident of village Rakhi Khas, and was running a shop in the name of Neelkanth Photo Studio. He stated that the house of Nathu Ram was adjoining to his own house. He further stated that the accused/appellant Sandeep, hailing from the State of Uttar Pardesh, used to jointly live with his neighbour i.e. Nathu Ram. It was also pointed out that several days ago, Nathu Ram, as well as, the accused/appellant Sandeep were arrested by the police. On 15.3.1999, Nathu Ram, his mother Shanti Devi and the accused/appellant Sandeep had gone to village Gamra, to mourn the death of the wife of Satta. All the three had returned back from village Gamra on the same day at around 2.00 PM. Two or three days prior to 15.3.1999, the deceased Nathu Ram and the accused/appellant Sandeep had bought a coloured television. On the following day i.e. on 16.3.1999, the deceased Nathu Ram and the accused/appellant Sandeep had a quarrel at about 8.30 PM in connection with some money transaction. On 17.3.1999, the complainant Dinesh Kumar PW14 found the house of the deceased Nathu Ram locked. He, accordingly, presumed that Nathu Ram had gone to visit his relations. On 21.3.1999, when he was passing through the lane, he realised that foul smell was coming out of the house of Nathu Ram. The complainant Dinesh Kumar PW14 brought the aforesaid fact to the notice of the sarpanch Ramphal, as well as, the vice sarpanch Chhajju Ram. On 22.3.1999 i.e. the date on which the complaint was made, the complainant Dinesh Kumar PW14, sarpanch Ramphal, as well as, the vice sarpanch Chhajju Ram were Crl. Appeal No.551-DB of 2000 3 proceeding towards the village to lodge a report when the police party, headed by SI Virender Singh PW11 met them. Whereupon, the complainant Dinesh Kumar PW14 disclosed the fact that foul smell was coming out of the house of the deceased Nathu Ram, to SI Virender Singh. After the aforesaid information was conveyed to the police party, SI Virender Singh PW11 accompanied the complainant Dinesh Kumar PW14, the sarpanch Ramphal, as well as, the vice sarpanch Chhajju Ram, to the house of the deceased Nathu Ram in village Rakhi Khas. The locks of the house were broken and the two rooms in the house were checked. In one room, the dead body of Nathu Ram was found lying on a cot covered with a quilt. In the other room, the dead body of Shanti Devi was found lying on a cot, also covered with a quilt. It was found that an electric wire was tied around each of the dead bodies. Both the dead bodies were in a decomposed state and was infected with insects. In his complaint, the complainant Dinesh Kumar PW14 asserted that the accused/appellant Sandeep had been missing since 16/17.7.1999 from village Rakhi Khas. The complainant Dinesh Kumar PW14 expressed the suspicion that the accused/appellant Sandeep had committed the murder of Nathu Ram and his mother Shanti Devi by strangulating them with an electric wire. On the basis of the statement made by the complainant Dinesh Kumar PW14, First Information Report bearing No.59 was registered at Police Station, Narnaud in district Hisar, on 22.3.1999 at 9.50 AM. The special report in respect of the aforesaid First Information Report was presented before the Judicial Magistrate Ist Class, Hansi, at 11.30 AM, on the same day i.e. on 22.3.1999. SI Virender Singh PW11 interrogated the neighbours residing Crl. Appeal No.551-DB of 2000 4 in the vicinity, and also, the chowkidar of the village, but did not record their statements. He also did not prepare the injury report on account of the fact that he had sent for the teams of the Crime Branch and the Finger Print Bureau to inspect the rooms from where the dead bodies of Nathu Ram and Shanti Devi were recovered. The teams of the Crime Branch and the Finger Print Bureau reached the spot before SI Virender Singh PW11 left the place of occurrence. Investigation of the case after 22.3.1999 was carried out by ASI Roshan Lal PW15. He required the complainant Dinesh Kumar PW14 to take photographs of the place of occurrence. After the photographs were taken, SI Narain Dass, Finger Print Expert and Dr. S.S. Chandana, Incharge, Scene of Crime, reached the place of occurrence. They inspected the place of occurrence and took into possession one wall clock and one mirror, and sealed the same, and handed over the sealed articles to ASI Roshan Lal PW15. Blood stained earth was scratched from near the cot of Shanti Devi and the same was put into a parcel and sealed and taken into possession vide recovery memo Ex.PL. Likewise, blood stained earth from near the cot of the deceased Nathu Ram was scratched and put into a parcel and sealed and taken into possession vide recovery memo Ex.PM. One wooden board fitted with switches and electric wire, was made into a parcel and sealed and taken into possession vide recovery memo Ex.PN. One “plass” lying alongwith the wooden board in the room from where the dead body of Nathu Ram was found, was also taken into possession. Three broken locks were taken into possession. Each of the aforesaid articles, was placed in parcels and sealed. ASI Roshan Lal PW15 prepared the inquest report of the dead bodies of Nathu Ram and Shanti Devi (Ex.PQ and PG/1, respectively). After preparing the inquest report, “nawar” of the bed Crl. Appeal No.551-DB of 2000 5 on which Shanti Devi was found dead, was removed and put into a parcel. The same was then sealed and taken into possession vide recovery memo Ex.PR. Likewise, the “nawar” of the cot on which Nathu Ram was found dead, was put into a parcel. The same was then sealed and was taken into possession. Likewise, one pillow and one “dari” were taken into possession vide recovery memo Ex.PS. The dead bodies of Nathu Ram and Shanti Devi were sent to the Forensic Department, Medical College, Rohtak, where the postmortem examination on the dead bodies of Nathu Ram and Shanti Devi was conducted by Dr. Ravinder Sahu PW8 and Dr. Vijay Pal Khangwal PW1, respectively. On 26.3.1999, the accused/appellant Sandeep, who was arrested by ASI Maha Singh PW17, was produced in Court. Whereupon, he was remanded to police custody upto 30.3.1999. After 30.3.1999, the investigation of the case remained in the hands of ASI Maha Singh PW17. On 27.3.1999, the accused/appellant Sandeep was interrogated, but he did not divulge anything. On 28.3.1999, he was again interrogated in the presence of Rambhaj PW16 and Satyawan. During the course of the aforesaid interrogation, the accused/appellant Sandeep disclosed that on the night intervening 16/17.3.1999, he had taken liquor with Nathu Ram at his house in village Rakhi Khas. He also stated that he alongwith Nathu Ram used to jointly commit thefts, and that, there was a dispute amongst the two in respect of sharing money, due to which, Nathu Ram had threatened the accused/appellant Sandeep. He further stated that Shanti Devi, mother of Nathu Ram had separated the two while they were quarreling. Nathu Ram, as well as, the accused/appellant Sandeep went to sleep in one room, whereas, Shanti Devi went to sleep in the second room. During the course of his interrogation, the accused/appellant Sandeep Crl. Appeal No.551-DB of 2000 6 disclosed that after midnight, he picked an iron weight of 5 kgs. lying in the house and dealt a blow with the same on the head of Nathu Ram, who was sleeping. When Nathu Ram started screaming, the accused/appellant Sandeep strangulated him with an electric wire. He also disclosed that in the meantime, Shanti Devi got up and came to their room. Whereupon, he dealt blows with the iron rod on the head of Shanti Devi. He then strangulated her also, with the help of an electric wire. During the course of interrogation, the accused/appellant Sandeep stated that the iron rod, which was used in killing Shanti Devi, was placed on the cot of Nathu Ram. He also stated that he had remained in the house of Nathu Ram during the night, and had gone to the house of Ratna Chowkidar PW13, in the morning. He also stated that the deceased Nathu Ram had stolen one coloured television from Ganaur. He also stated that he had concealed the iron weight of 5 kgs. and liquor bottle of Jagadhri No.1 make, as well as, a white shirt smeared with blood in a heap of bricks behind the house of the deceased Nathu Ram, and that, he could get the same recovered. He also stated that he had stolen the coloured television from the house of the deceased Nathu Ram and had left the same with his cousin Bir Singh at Gohana. He further stated that he could also get the aforesaid coloured television recovered from the house of his cousin at Gohana. On the basis of the interrogation of the accused/appellant Sandeep, his disclosure statement Ex.PU was recorded, which was thumb marked by the accused/appellant Sandeep and attested by Satyawan and Rambhaj. The accused/appellant Sandeep led the police party to the place where he had hidden the liquor bottle, as well as, the iron weight of 5 kgs. and also a white shirt smeared with blood. After the accused/appellant got the Crl. Appeal No.551-DB of 2000 7 aforesaid articles recovered, one parcel was made out of the liquor bottle and a second parcel was made out of the blood stained earth and iron weight of 5 kgs. Both the parcels were then sealed. The aforesaid parcels were taken into possession vide recovery memo Ex.PV. ASI Maha Singh PW17 then prepared the rough site plan Ex.PZ of the scene of recovery, and also, recorded the statement of Ratna Chowkidar PW13. He then got one coloured television of BPL make recovered at the instance of the accused/appellant Sandeep, from the house of his cousin Bir Singh at Gohana. The same was taken into possession vide recovery memo Ex.PX. Rough site plan Ex.PAA of the place of recovery was prepared. On completion of the investigation and other police formalities, a challan was presented in the Court of Judicial Magistrate Ist Class, Hansi, on 22.5.1999. The Judicial Magistrate Ist Class, Hansi, arrived at the prima- facie conclusion, that the offence punishable under Section 302 of the Indian Penal Code was made out against the accused/appellant Sandeep, for having committed the murder of Nathu Ram and Shanti Devi. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Judicial Magistrate Ist Class, Hansi, by his order dated 8.6.1999, committed the case for trial to the Court of Session. The Additional Sessions Judge, Hisar, by his order dated 6.8.1999 charged the accused/appellant Sandeep for having committed the murder of Nathu Ram and Shanti Devi by intentionally causing their death, under Section 302 of the Indian Penal Code. The accused/appellant Sandeep was then confronted with the charge levelled against him. He pleaded not guilty, and claimed trial. During the course of the trial, the prosecution examined a Crl. Appeal No.551-DB of 2000 8 number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarised hereunder. The prosecution first of all, examined Dr. Vijay Pal Khangwal, Lecturer, Department of Forensic Medicine, PGI, Rohtak, as PW1. He affirmed that he had conducted the postmortem examination on the dead body of Shanti Devi on 22.3.1999. According to Dr. Vijay Pal Khangwal PW1, the dead body of Shanti Devi was emitting foul smell and maggots of 0.5 x 1 cm were found crawling all over the body. Hair on the head had peeled off on most of the portion, except on the right parieto-occipital region. The left pinna was missing and right pinna was deformed. Even the eyes, nose and lips were deformed. The eye brows were putrefied and deformed. The tongue was putrefied, dark and deformed. The teeth were loose in their respective sockets. Facial structures were distorted. Epidermis was peeled off from most of the part of the body. The hands and the feet were degloved. Body hair and axillary hair were peeled of. Most of the pubic hair were also peeled off. The breast and the abdomen were distended. The uterus and rectum were protruding. Dr. Vijay Pal Khangwal PW1 further stated that a reddish pink cable was found tied around the neck, by means of a fixed knot on the front. The cable completely encircled the neck. The length of the free ends of the cable were 8 and 11 cm respectively. A light yellowish rolled up “chunni” was also found tied around the neck by means of a fixed knot present on the left side of the neck. It also encircled the neck completely. There was a ligature mark present all around the neck at the level of 5 cm below the centre of the chin. The ligature mark was dark and reddish brown. The width of the ligature mark was varying from between 3 to 4 cm. In the opinion of Dr. Vijay Pal Khangwal PW1, the death of Shanti Crl. Appeal No.551-DB of 2000 9 Devi had been caused due to strangulation. After conducting the postmortem examination, Dr. Vijay Pal Khangwal PW1 handed over the dead body of Shanti Devi back to the police. The statement of Head Constable Sher Singh was recorded as PW2. At the relevant time, Sher Singh PW2 was posted as Muharrir Head Constable at the police station and the case property recovered during the course of the investigation of the present case, was deposited with him for safe custody. The statement of Constable Sahab Ram was recorded as PW3. In his deposition, he asserted that he had carried the case property from the police station to the Forensic Science Laboratory, Haryana, Madhuban. The statement of Constable Bijender Singh was recorded as PW4. He also stated that he had carried the case property from the police station to Forensic Science Laboratory, Haryana, Madhuban. The statement of Constable Ranbir Singh was recorded as PW5. He had delivered the special report in connection with First Information Report bearing No.59 at Police Station, Narnaud, to the Ilaqa Magistrate. The statement of ASI Jagdish Chander was recorded as PW6. He had received the ruqa and recorded the First Information Report in respect of the occurrence under reference. The statement of SI Wazir Singh was recorded as PW7. He deposed that he had prepared the challan and presented the same in the Court of Judicial Magistrate Ist Class, Hansi. The statement of Dr. Ravinder Sahu, Department of Forensic Medicine, PGI, Rohtak, was recorded as PW8. He stated that he had conducted the postmortem examination on the dead body of Nathu Ram on 23.3.1999. He further stated that the body of Nathu Ram was found with a black electric wire coiled around the neck, and further, that the body was in an advanced stage of decomposition. He also stated that the body was emitting foul Crl. Appeal No.551-DB of 2000 10 smell. All clothes were smudged with decomposed tissues Maggots of the size of 0.5 to 1 cm were found crawling all over the body. Epidermis had peeled off from all over the body. The scalp was missing from the right frontal and parietal region. Both the eyes were deformed. The nose was deformed. The right pinna was deformed and the left pinna was missing. Scalp hair was peeled off except at a few places. Abdomen was distended, and the facial features were unidentifiable. Both, the hands and the feet were degloved. He also found a black cable coiled around the neck, having two metallic white wires, 82 cms in length. According to Dr. Ravinder Sahu PW8, there was a depressed fracture over the skull on the right frontal bone alongwith the sagittal plane in slightly oblique direction, 4 cm from the mid-line with its anterior extremity situated 2.5 cm above the centre of right superarobital margin and posterior extremity being 3.8 cm anterior to the right limb. A portion of skull of size 4 x 2.5 cm i.e. a fractured fragment was found depressed. In the opinion of Dr. Ravinder Sahu PW8, the death of Nathu Ram was due to the cumulative effect of the head injury and strangulation by ligature. He also stated that probable time between the injury and the death was immediate; and between death and postmortem examination, it was about one week. Having conducted the postmortem examination on the dead body of Nathu Ram, Dr. Ravinder Sahu PW8 handed over the dead body of Nathu Ram to the police. Head Constable Johari Lal appeared as PW10. He affirmed that he had carried the dead bodies of Nathu Ram and Shanti Devi for postmortem examination to the PGI, Rohtak. The statement of SI Virender Singh was recorded as PW11. SI Virender Singh PW11 asserted that the complainant Dinesh Kumar PW14 had made a statement to him on 22.3.1999. He also stated that the Crl. Appeal No.551-DB of 2000 11 complainant Dinesh Kumar PW14 was accompanied by sarpanch Ramphal, as well as, the vice sarpanch Chhajju Ram. He also stated that he had accompanied the complainant and the other two, who had come to him, to the place of occurrence, where he found the dead bodies of Nathu Ram and Shanti Devi, lying on two different beds in two different rooms. He also affirmed that he had invited the teams from the Finger Print Bureau and the Crime Branch. The statement of Ramesh was recorded as PW12. He asserted that the accused/appellant Sandeep and the deceased Nathu Ram had brought an old coloured television set to him for repair, on 16.3.1999 at about 5.00 PM. He also stated that he had refused to repair the television. According to Ramesh PW12, on the following day i.e. on 17.3.1999, he had found the accused/appellant Sandeep at the bus stand of village Rakhi Khas. He also stated that the accused/appellant Sandeep was having a coloured television. He identified the accused/appellant Sandeep, present in Court as the same person who had come to his shop on 16.3.1999, as well as, the same person whom he had seen at the bus stand of village Rakhi Khas on 17.3.1999. The statement of Ratna Chowkidar was recorded as PW13. In his statement, Ratna Chowkidar PW13 stated that he lived on the same street in village Rakhi Khas, where the house of the deceased Nathu Ram was located. He also stated that, between the house of the deceased Nathu Ram and his own house, there are only two other houses. He further stated that the accused/appellant Sandeep used to reside in the house of the deceased Nathu Ram alongwith him. He also stated that on 17.3.1999, the accused/appellant Sandeep had come to him in the morning at about 5/6 AM, and that, he had offered him tea. He further stated that the accused/appellant Sandeep took tea with him, and then went back to the Crl. Appeal No.551-DB of 2000 12 house of Nathu Ram. After about half an hour, the accused/appellant Sandeep came out of the house of the deceased Nathu Ram and went towards the bus stand. He had seen the accused/appellant Sandeep carrying a television set while he was going to the bus stand, on 17.3.1999. The statement of Dinesh Kumar was recorded as PW14. While appearing before the trial Court, the complainant Dinesh Kumar PW14 reiterated the factual position as was narrated by him when he had recorded his statement before SI Virender Singh PW11 on 22.3.1999. The statement of ASI Roshan Lal was recorded as PW15. ASI Roshan Lal PW15 had taken up the investigation of the case w.e.f. 22.3.1999. His statement pertains to the investigation carried out by him, details whereof have already been noticed above. The statement of Rambhaj was recorded as PW16. Rambhaj PW16 was a witness to the disclosure statement made by the accused/appellant Sandeep, on the basis whereof, an empty bottle, a coloured BPL television set, a shirt and the iron weight of 5 kgs. were recovered at the instance of the accused/appellant Sandeep. The statement of ASI Maha Singh was recorded as PW17. He had arrested the accused/appellant Sandeep. After recording the statements of the aforesaid witnesses, the prosecution evidence was closed by order. The statement of the accused/appellant Sandeep was then recorded under Section 313 of the Code of Criminal Procedure. In the first instance, the accused/appellant Sandeep was confronted with the incriminating evidence appearing on the record of the case. The accused/appellant Sandeep denied the correctness of the incriminating evidence available on the record of the case. In his defence, he, inter-alia, stated as under:- Crl. Appeal No.551-DB of 2000 13 “I am innocent. I was detained by the police from 20.3.1999 and was wrongly show to have been arrested on 25.3.1999. I had a quarrel with some unknown person at bus stand, Hansi and the police had arrested me at Hansi. I was taken by the police to P.S. Narnaud by four police officials.” The accused/appellant Sandeep was then afforded an opportunity to lead evidence in his defence. The accused/appellant Sandeep, however, did not avail of the opportunity. Defence evidence of the accused/appellant Sandeep was, accordingly, closed on the basis of his statement, by order. The Additional Sessions Judge, Hisar, delivered the judgement in Sessions Case No.21 of 1999, on 3.10.2000. The accused/appellant Sandeep was found found guilty of having committed the murder of Nathu Ram and Shanti Devi, and as such, was convicted under Section 302 of the Indian Penal Code. After affording an opportunity of hearing to the accused/appellant Sandeep on the question of sentence, the Additional Sessions Judge, Hisar, by his order dated 5.10.2000, sentenced the accused/appellant Sandeep to undergo imprisonment for life and to pay a fine of Rs.20,000/-, under Section 302 of the Indian Penal Code. In default of payment of fine, the accused/appellant Sandeep was ordered to undergo further rigorous imprisonment for two years. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgement rendered by the Additional Sessions Judge, Hisar, reveal that while convicting the accused/appellant Sandeep, reliance was placed on the ocular, as well as, expert evidence. In this behalf, it would be pertinent to mention, that reliance was placed on the statement Crl. Appeal No.551-DB of 2000 14 of Ramesh PW12, who deposed that he had seen the accused/appellant Sandeep at the bus stand of village Rakhi Khas, on 17.3.1999, and further, that he had in his possession a coloured television set. Reliance was also placed on the statement of Ratna Chowkidar PW13, who was living in