CRIMINAL APPEAL NO. 921-DB OF 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: March 02, 2009 Parties Name Mangal Saon ...APPELLANT. VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Ms. Sumanjit Kaur, Advocate, for the appellant. Mr. N.S. Shekhawat, Standing Counsel for UT Chandigarh. JASBIR SINGH, J. JUDGMENT It was allegation against the appellant that in the intervening night of 8th /9th January, 2003, he kidnapped and then murdered Bitan, aged about 7 years, daughter of Ram Jiwan (PW4). Vide judgment and order dated August 20, 2004, the appellant was convicted for commission of offences punishable under Sections 364 and 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- with a default clause for offence under Section 302 IPC and further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/- with a CRIMINAL APPEAL NO. 921-DB OF 2004 -2- default clause for offence punishable under Section 364 IPC. However, sentences were ordered to run concurrently. Hence this appeal. Case of the prosecution, as noticed by the trial Court in para No. 2 of its judgment, reads thus: “2. As it emerges from the final report submitted under Section 173 of the Code of Criminal Procedure (hereinafter called as the Code) and documents appended there with, the case of the prosecution is that on 9.1.2003, complainant Reshma wife of Ram Jiwan came to Inspector Dhan Raj, Station House Officer of Police Station Sector 34, Chandigarh, and had also brought accused Mangal with her alleging that her seven years old daughter Bitan had been kidnapped by him. She further revealed to the police of being a domestic maid servant while her husband Ram Jiwan was running a cycle repair shop and the couple had four children including Bitan. As usual she had brought her daughters to the shop of her husband in the morning and leaving them with her husband she had gone to attend her routine work. She returned to the shop of her husband at about 6.00 PM and took her girls including Bitan, with her and was returning towards her house that in the meantime accused Mangal who happened to be their neighbour was found standing in front of a tea shop. On the pretext of taking Bitan on his bi-cycle to drop her at the residence of the complainant accused Mangal took Bitan with him. When Reshma reached her house along with the other of her children, she did not find either Mangal or Bitan in the house. From there CRIMINAL APPEAL NO. 921-DB OF 2004 -3- she returned to the shop of her husband to enquire about Bitan, who was not found there as well. Both of Reshma and Ram Jiwan thereafter went to one Parmod in village Kumbra where Mangal used to reside, to be told that he was not present there also. On this both of Reshma and Ram Jiwan along with other persons started searching for Bitan. Wife of Mangal told Reshma that Mangal had taken Rs. 350/- from the house and must be consuming liquor some where. When Reshma and one Saifu went to village Kumbra they were told by one Subedar that accused Mangal had come to him just some time earlier and had told him of having killed Bitan and had further requested Subedar to give shelter to him. Reshma proceeded to the house of Subedar and Mangal was apprehended from there and was brought to the Police Station by Reshma and others.” On receipt of information from Reshma (PW8), FIR Ex. P23 was recorded at 0.10 AM on January 9, 2003. Special report reached the concerned Magistrate at 11 AM on that very day. As per record, accused- appellant was also produced before the Investigating Officer and he was taken in custody. On interrogation, the appellant – accused disclosed that he had committed murder of Bitan, by strangulating her and had thrown her body in the forest near Ram Darbar, Sector 31, Chandigarh. Disclosure statement Ex. P9 was recorded in the presence of Ram Jiwan (PW4), Subedar son of Chunda, Paras Raj (PW10) and the police officials. The police party, in the presence of witnesses named above, along with the appellant accused went to the place as disclosed by the appellant in search CRIMINAL APPEAL NO. 921-DB OF 2004 -4- of the dead body and against recovery memo Ex. P10 dead body was recovered from bushes next to the road dividing Sectors 31 and 47, Chandigarh. Inquest report of the dead body was prepared and it was sent for post-mortem examination to General Hospital, Sector 16, Chandigarh. The appellant – accused made another disclosure statement on the basis of which he took the police to the place of murder. The Investigating Officer got the place of occurrence photographed, recorded statements of the witnesses and after completing other formalities, put in the final report in the Court for trial. The appellant – accused was charge-sheeted for commission of offences punishable under Sections 302 and 364 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution produced 15 witnesses and also brought on record documentary evidence. On conclusion of prosecution evidence, statement of the appellant – accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. However, he led no evidence in defence. The trial Court on appraisal of evidence convicted and sentenced him as mentioned in earlier part of this order. Counsel for the appellant has vehemently contended that the trial Court was not justified in convicting and awarding punishment to the appellant. The prosecution has failed to establish cause of death of the deceased. There was no motive with the appellant to commit the alleged crime. She further argued that PW Paras Ram, before whom the appellant has allegedly made a confessional statement, was not known to him earlier. The said witness was not a person of means, before whom it could be CRIMINAL APPEAL NO. 921-DB OF 2004 -5- expected that the appellant would make any such statement so that he may save him from torture by the police. By indicating various minor discrepancies in the statements of the prosecution witnesses, counsel argued that the prosecution has failed to establish chain of circumstances, which may indicate towards guilt of the appellant – accused. She prayed that the appeal be allowed and the judgment and order under challenge be set aside and the appellant be acquitted of the charges framed against him. Prayer made by counsel for the appellant has vehemently been opposed by Shri N.S.Shekhawat, counsel for the respondent – UT Chandigarh. He, by making reference to the statements made by Reshma (PW8), mother of the deceased, Ram Jiwan (PW4), father of the deceased, argued that the prosecution was successful in proving that the appellant was 'last seen' with the deceased immediately before her death. He, by making reference to the statements made by Salim (PW5), Paras Ram (PW10), Lalit Kumar (PW6) and Parmod (PW9) argued that the appellant had virtually accepted that he had committed the crime. By making reference to the statements made by the police officials, counsel argued that the dead body and cycle were recovered at the instance of the appellant, which fact corroborates the story of the prosecution. He prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, we are not inclined to interfere in the judgment and order under challenge, at the instance of the appellant. Record reveals that the deceased was last seen with the appellant by Reshma (PW8) and Ram Jiwan (PW4) at about 6 PM on January 8, 2003. The dead body of Bitan was recovered at the instance of the appellant on January 9, 2003. The post-mortem on the dead body was conducted by Dr. CRIMINAL APPEAL NO. 921-DB OF 2004 -6- Vikas Deep Hans (PW7), who found the following injuries on her person: “1. Crecentric shape contusion abrasion .7 x .4 cm present on right side middle front of the neck, 6 cm below and slightly behind right ear and 4.5 cm to the right of the mid line. 2. Cresentric shape contusion abrasion .7 x .1 cm present on the left side lower front of the face, 2 cm below and 5 cm outer to the left angle of the mouth. 3. Vertically placed contusion abrasion .4 x .1 cm present on the left middle front of the neck, 6.5 cm below and 2 cm behind the level of the left ear. 4. Superficial laceration .5 x .2 cm present on the inner aspect of right side of upper lip.” Opinion regarding cause of death was postponed till receipt of the Chemical Examiner's report. On receipt of above said report on April 9, 2003, this witness failed to give definite opinion regarding cause of death. Simply on that account, verdict of acquittal cannot be passed in favour of the appellant. Record reveals that the nature of injuries detected on the dead body indicates that violent force was applied on neck of the deceased and an attempt was also made to gag her mouth. This fact is apparent when we look at injuries No. 2 and 4 mentioned above. The deceased was a child of tender age of 7 years. Even small pressure on neck and mouth could cause death. The trial Court has discussed this aspect in paragraphs No. 26 and 27 of the judgment under challenge. We fully concur with the same. It has come on record that on the fateful day, the accused had borrowed a bi-cycle from PW9 at about 8 PM. Above said fact was authenticated by Lalit Kumar CRIMINAL APPEAL NO. 921-DB OF 2004 -7- (PW6), who also witnessed recovery of the cycle from his shop at the instance of the appellant. The prosecution was also successful in proving that the appellant had made a confessional statement, admitting his guil, before PW10 Paras Ram, who has deposed that on January 8, 2003, at 8.30 PM, appellant came to him and in the company of one Subedar, he admitted his guilt of killing Bitan. Above said witness and Subedar went to intimate parents of the deceased, leaving behind the accused. In their absence, he ran away from that place. Before Salim (PW5), appellant – accused pleaded that he be saved as he was being held responsible for disappearance of the daughter of Ram Jiwan (PW4). Above named witness confined the appellant in a room of his house by bolting it from outside , from where he was taken in custody by parents of the deceased and others and thereafter he was produced before the police in Police Station Sector 34, Chandigarh. Despite lengthy cross-examination, defence has failed to shatter testimony of above said witnesses. Minor discrepancies in the statements made by the prosecution witnesses rather indicate that they were not tutored and they have deposed the truth. Dead body was recovered on a disclosure statement made by the appellant – accused. The Investigating Officer Inspector Dhan Raj Sharma has deposed that initially the appellant – accused tried to mislead the police party, however, subsequent thereto he took them to the place where dead body was lying. Motive to cause death may not be very material in this case. Otherwise , the prosecution has proved little bit motive also on the part of the appellant to commit the crime. Counsel for the appellant has failed to show that the prosecution witnesses were interested witnesses being closely related to each other. The trial Court has also CRIMINAL APPEAL NO. 921-DB OF 2004 -8- noticed conduct of the appellant in running away from one place to another place, to show that he had a guilty mind. The prosecution has proved chain of the circumstances, which indicates towards guilt of the appellant- accused. In view of facts, mentioned above, no case is made out for interference. Consequently, the appeal fails and the same is dismissed. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE March 02, 2009. DKC