IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 30 -DB of 2000 Dated of Decision:- February 26, 2009 Girraj Singh and another ....APPELLANTS VERSUS The State of Haryana ....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, Advocate for the appellant. Sh. Kulvir Narwal, Addl. Advocate General Haryana. ------ MEHTAB S.GILL, J. This is an appeal filed by Girraj Singh son of Sukhi Ram and Niranjan son of Chiranji Lal against the judgment/order dated 15/22.12.1999 of the learned Addl. Sessions Judge, Faridabad, whereby they were convicted under Sections 302 and 364 IPC. They were sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- under Section 302 IPC. In default of payment of fine to further undergo R.I. for six months. Under Section 364 IPC, they were sentenced to undergo seven years R.I. and to pay a fine of Rs.1000/- and in default to further undergo R.I. for six months. Sentences were ordered to run concurrently. 2 Criminal Appeal No. 30 -DB of 2000 The third accused Anil son of Girraj being a juvenile has been tried separately by the Juvenile Court. The case of the prosecution is unfolded by the statement Ex.PA of Nanak Chand given to ASI Jai Shree at Bus Stand of Village Chandawali. Nanak Chand stated, that he is a resident of Chandawali. Last year on the eve of Fag, a quarrel had taken place between his brother on one side and Girraj S/o Sukhi Ram and Chiranji S/o Khacheru on the other side. This dispute was settled by the Panchayat. On 31.8.97 at about 7.30/8.00 p.m., Nanak Chand’s son Rinku aged 4 years, who was playing outside the house near the chowk, did not come back till late night. He along with others started searching for Rinku, but could not find him. On the next day, he went to the villages near Ballabgarh, but still could not find his son. On 4.9.1997 on enquiry from the villagers, namely Bal Kishan S/o Tek Chand @ Teki and Parkash S/o Kartar Singh, he was told by them that on the evening of Sunday i.e. 31.8.1997 at about 8.00 p.m., they had seen his son Rinku in the company of Niranjan S/o Chiranji, Anil S/o Girraj and Girraj S/o Sukhi Ram on the canal side. Shyam Singh S/o Rati Ram Ahir also told him, that he had seen his son Rinku in the company of Niranjan S/o Chiranji and Anil S/o Girraj on the bank of Agra canal. Further Nanak Chand stated, that he had a quarrel with Girraj and Chiranji last year. They had a grudge against him. He suspected the involvement of Girraj S/o Sukhi Ram, Niranjan S/o Chiranji and Anil S/o Girraj in the murder of his son Rinku due to past enmity or they had kept him concealed somewhere in order to commit his murder. 3 Criminal Appeal No. 30 -DB of 2000 On the basis of this statement, FIR Ex.PA/2 was recorded on 5.9.1997 at 2.00 p.m. The special report reached the Ilaqa/Duty Magistrate on the same day at 3.15 p.m. The prosecution to prove its case brought into the witness box, Nanak Chand PW1, Shyam Singh PW2, ASI Jai Shree PW3, Anoj Kumar Draftsman PW4, Bal Kishan PW5, Hari Kishan PW6 and Sat Narain SI PW7. Jeet Ram cited as prosecution witness was examined as DW1. Learned counsel for the appellants has argued, that the case of the prosecution is based on circumstantial evidence. The extra judicial confession made before Hari Kishan PW6 cannot be relied upon. As per Kalendra under Sections 107/151 Cr.P.C. Ex.DB, it has been shown that the appellants were arrested on 7.9.1997. In the extra judicial confession as allegedly made in front of Hari Kishan PW6, it comes out that the confession was made on 8.9.1997 and the appellants wanted Hari Kishan PW6 to produce them before the SHO. As per the statement of Sat Narain SI PW7, the Investigating Officer, appellants were produced and arrested on 8.9.1997. The last seen evidence also cannot be relied upon, as Bal Kishan PW5 has stated, that the accused were arrested on 6/7th September, 1997. It has also come out, that Bal Kishan PW5 is closely related to complainant Nanak Chand PW1. Similarly the testimony of Shyam Singh PW2 is also not worthy of credence, as he also says that he saw the appellants, but did not report about Rinku to Nanak Chand PW1 for several days, as he had gone to duty to Delhi. Even from Delhi, Shyam Singh PW2 could have informed Nanak Chand. 4 Criminal Appeal No. 30 -DB of 2000 Body of the deceased could not be discovered in spite of the Investigating Officer making efforts to do so. In fact it is the complainant party, who knew where Rinku was. Learned counsel for the State has argued, that Shyam Singh PW2 in his testimony has stated, that he could not give the information to Nanak Chand PW1, as on 1st and 2nd September, 1997, he was in Delhi on duty. It was on 3.9.1997 when he came back, he came to know that Rinku was missing and thereafter he gave the information to Nanak Chand PW1. Further it has come in evidence, that the Panchayat was meeting daily to know the whereabouts of Rinku and thus Nanak Chand PW1 was thinking, that his son had got lost and would come back. The motive for the commission of the offence is clearly given in FIR Ex.PA/2, where a quarrel had erupted between the appellants and Nanak Chand PW1 about a year back. Appellants kept in mind that grievance and thereafter kidnapped Rinku and threw him in the canal. We have heard the learned counsel for the parties and perused the record with their assistance. Learned counsel for the appellants in the course of his arguments has clarified, that appellant Niranjan is the son of the real brother of Nanak Chand complainant. The argument put forward by the learned counsel for the appellants, that the extra judicial confession made before Hari Kishan PW6 cannot be relied upon does not cut much ice. This argument does not have any weight after the statement of Sat Narain SI PW7. Hari Kishan PW6 in his testimony before the Court has stated, that appellant Girraj came to his 5 Criminal Appeal No. 30 -DB of 2000 house and told him that he had committed a big mistake. He further told him, that at the time of the Holi festival, an altercation had taken place between Nanak Chand PW1 and him and Nanak Chand PW1had beaten him. It was because of this enmity, that on 31.8.1997 he, along with his co- accused Niranjan and Anil Kumar, picked up Rinku after giving toffees to him. They took the child to Agra canal and after killing him, they had thrown his body into the canal. He (PW6) then took Girraj and Anil on his scooter and produced them before the police at Police Station Ballabgarh. In the Kalendra under Sections 107/151 Cr.P.C. Ex.DB filed against appellants Girraj, Anil and Niranjan, it has been shown that the accused were arrested on 7.9.1997. The Investigating Officer, Sat Narain SI PW7 has stated, that on 8.9.1997 Hari Kishan Numberdar PW6 came to him at about 6.20 a.m. and produced both Girraj and Anil before him. He arrested them and recorded the extra judicial confession made by both these accused before Hari Kishan PW6. In the Kalendra Ex.DB, arrest being shown on 7.9.1997 has been inadvertently shown. The last seen evidence as spelt out by Shyam Singh PW2 and Bal Kishan PW5 inspires confidence. Bal Kishan PW5 has stated in his testimony before the Court, that on 31.8.1997 at about 7.30 p.m., he was standing on the road outside at Village Chandawali, along with one Parkash. They saw Rinku son of Nanak Chand going with appellants Girraj, Niranjan and Anil. On the next day he came to know, that Rinku was missing. He gave this information to Nanak Chand PW1 and also disclosed this before the Panchayat. He has further stated regarding the motive, that there were differences between Nanak Chand and Girraj due to some 6 Criminal Appeal No. 30 -DB of 2000 altercation, which had taken place at the time of Holi festival. Girraj had misbehaved with the wife of Nanak Chand PW1 and Nanak Chand PW1 at that time had beaten him and also rebuked him. Bal Kishan PW5 is the neighbour of Nanak Chand PW1. He has further stated, that Nanak Chand PW1 tried to find Rinku from Ballabgarh town, in the fields around Ballabgarh and also from the canal. It is after that when he could not locate Rinku, FIR Ex.PA/2 was recorded. Similarly Shyam Singh PW2 has also stated, that on 31.8.1997 at about 8.00 p.m., he saw deceased Rinku on the banks of Agra canal along with appellants Girraj Singh, Niranjan and one Anil. Shyam Singh PW2 had gone to ease himself and after some time he heard the sound of something falling in the water. At that time he thought that appellants may have thrown a stone or something in the water, but on the third day, he told this incident to Nanak Chand. On the 1st and 2nd September, 1997, he did not tell Nanak Chand PW1 about what he had seen as on 1st and 2nd September, 1997 he went to Delhi to attend to his duty and returned on 3.9.1997. On 31.8.1997/ 1.9.1997, he did not know that Rinku was missing. It is on 3.9.1997, when he came from Delhi, he came to know about the abduction of Rinku and he told Nanak Chand, that he had seen Rinku in the company of the appellants on 31.8.1997. This witness is an independent witness. He has categorically stated in his cross-examination, that he does not have any special friendship with Nanak Chand PW1. Learned counsel for the State has rightly argued, that as panchayats were meeting and Nanak Chand PW1 was trying to find out the whereabouts of his son Rinku, that is the reason that he did not lodge the 7 Criminal Appeal No. 30 -DB of 2000 report with the police till 5.9.1997. It is after he was satisfied, that it is the appellants who had taken Rinku away and committed his murder, he went to the police and recorded his statement Ex.PA. With the above discussion and observations, we are of the considered opinion, that it is appellants Girraj Singh son of Sukhi Ram and Niranjan son of Chiranji Lal, who kidnapped Rinku son of Nanak Chand PW1 and then committed his murder. 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 26, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO 8 Criminal Appeal No. 30 -DB of 2000