Crl. Appeal No.D-733-DB of 2007 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.D-733-DB of 2007 Date of Decision : 05.09.2011 Raju Singh ... Appellant Versus State of U.T. Chandigarh .... Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK ....... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Pradeep Singh Poonia, Advocate (Amicus-Curiae) for the appellant. Ms. Ashima Mor, Advocate, for U.T, Chandigarh. -- Vijender Singh Malik, J. Raju Singh, appellant has been held guilty and convicted for an offence punishable under section 302 of the Indian Penal Code vide judgment dated 18.04.2007 passed by learned Sessions Judge, Chandigarh. He had been sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- for the offence with further rigorous imprisonment for one year in default of payment of fine, vide order dated 19.04.2007. He has challenged the judgment of his conviction and order of sentence by way of this appeal. The case brought by Crl. Appeal No.D-733-DB of 2007 --2-- Police Station Industrial Area, Chandigarh against Raju Singh, appellant and Hare Ram, who was declared a juvenile offender, vide order dated 08.07.2003 by learned Sessions Judge, Chandigarh, and was sent to appear before Juvenile Justice Board, is as under:- Raju Singh, appellant, Hare Ram and Shailesh Rai, deceased, had been residing in a house of Kirpal Singh situated at village Hallomajra in the year 2001. Parmod Kumar, PW-8 used to reside in another room of the said house alongwith three others. Raju Singh, appellant as also Shailesh Rai, Mohan Yadav, PW-9 and his brother Suresh Yadev used to ply rickshaw cart for transporting the furniture of M/s Divedi Furniture House, Plot No.820, Industrial Area, Phase-II, Chandigarh. Raju Singh, appellant sold his rickshaw cart to Shailesh Rai, deceased for Rs.2200/- about 15 days prior to the date of making complaint i.e. 20.04.2001. The deceased paid a sum of Rs.1500/-, out of the sale price of the rickshaw cart, to Raju Singh, leaving a balance of Rs.700/- payable by him to the appellant. After selling his rickshaw cart, Raju Singh, appellant was left with no work. He was running his household on the amount of Rs.1500/- received by him from the deceased as part payment of the sale consideration of the rickshaw cart. Since the deceased was unable to make payment of balance amount of Rs.700/-, relations between the deceased and Raju Singh, appellant became strained. Raju Singh, appellant and Hare Ram started cooking their meals separately from the deceased. Crl. Appeal No.D-733-DB of 2007 --3-- On 20.04.2001 at about 9.30 AM, Parmod Kumar, PW-8 had returned after purchasing oranges from Vegetable Market, Sector 26, Chandigarh. He had found Raju Singh and Mohan Yadav, PW-9 in the street. Hare Ram was also with them. Mohan Yadav asked Raju Singh, appellant, as to where the deceased had been and as to why the deceased was not plying his rickshaw cart on that day. Raju Singh, appellant told Mohan Yadav that the deceased would ply his rickshaw cart only when he would return. Thereafter, Raju Singh had a talk with Hare Ram about the balance of sale consideration of rickshaw cart due from the deceased. They were also talking about the deceased having gone on the previous evening saying that he would bring money from his brother for making payment of the remaining sale consideration. On 19.04.2001 at about 8.00 PM when Lal Jha, PW-12 was coming back to his house in Sector 19, Panchkula after closing his grocery shop at village Hallomajra, he found the deceased pedalling his rickshaw cart at the turning of village Makhanmajra near Bhinder Farm, in which Raju Singh, appellant and Hare Ram, juvenile, were sitting. They were going towards village Raipur Khurd. Lal Jha was known to the appellant, the deceased and the juvenile. On 19.04.2001 itself Raju Singh, appellant had borrowed a butcher's knife from Sunandi Devi, PW-7, a resident of Hallomajra at about 5.00 PM on the pretext that he was to cut a Crl. Appeal No.D-733-DB of 2007 --4-- chicken. Raju Singh was on visiting terms with the husband of Sunandi Devi. Raju Singh did not return the knife to her thereafter. Gurdhian Dass, PW-11 had also observed Raju Singh having a knife in his hand while he came out of the house of Sunandi Devi on 19.04.2001 at 5.30 PM. On 20.04.2001 Inspector Moti Ram, the Investigating Officer of this case, was posted as Station House Officer of Police Station, Industrial Area, UT, Chandigarh. He was present at Poultry Farm in connection with patrolling. He received a wireless message from a picket at Makhanmajra to the effect that a dead body was lying near the drain in the area of village Raipur Khurd by the side of the road, leading from village Makhanmajra to Raipur Khurd. Moti Ram, Inspector alongwith other police officials went to the picket of village Makhanmajra. He found Narinder Kumar, Constable there. Narinder Kumar, Constable took Moti Ram, Inspector to the place where dead body of a young male was lying. Moti Ram, Inspector recorded the statement of Narinder Kumar, Constable and had sent the same to police station with his endorsement, on which formal FIR was recorded. Police photographer was called to the spot, who took eight snaps of the place of occurrence with the dead body thereon. Seven snaps were developed and were given to the investigating officer. Moti Ram, Inspector then searched the pockets of the deceased, in which a purse was found carrying a visiting card Ex.P24 and a cash memo in the name of Raju issued from Om Cloth Crl. Appeal No.D-733-DB of 2007 --5-- House, Shop No. 214, Main Market Hallomajra, Chandigarh (UT) Ex.PO. They were taken into possession by way of recovery memo. Hari Bhushan, SI was left at the spot. Moti Ram, Inspector then went to plot No.820 , Industrial Area, UT Chandigarh where Mohan Yadav met him. On inquiry, Mohan Yadav told him that Raju Singh, in whose name Bill, Ex.PO had been prepared, was residing in village Hallomajra. Moti Ram, Inspector then accompanied by Mohan Yadav and Krishan Yadav, SI went to Hallomajra and found the room of Raju Singh locked. Mohan Giri, who was found there told Moti Ram, Inspector that Raju Singh and Hare Ram had gone for unloading ice boxes at Diamond Ice Factory, Makhanmajra. Moti Ram, Inspector then went to the ice factory and came to know that Raju Singh and Hare Ram had already left the factory. He again returned to the room of Raju Singh but he did not find him there. Moti Ram, Inspector met Upinder Yadav and Daroga Yadav there. He visited the spot with Parmod Giri, Mohan Yadav and Daroga Yadav. Parmod Giri and others had identified the dead body of Shailesh Rai. It was also brought to the notice of Moti Ram, Inspector that Shailesh Rai was residing with Raju Singh and Hare Ram in the same room. The inquest proceedings on the dead body of Shailesh Rai had been conducted by Hari Bhushan, SI. He then took blood from two places and prepared parcels of the same. He had sealed those parcels and took them into possession by way of recovery Crl. Appeal No.D-733-DB of 2007 --6-- memo. A pair of sleepers and shawl were also found at the spot. They were given the shape of parcels, were sealed and were taken into possession. Dead body of Shailesh Rai was sent to General Hospital, Sector 16, Chandigarh for post-mortem examination. On 20.04.2001 itself Moti Ram, Inspector received a secret information that Raju Singh and Hare Ram would be returning to their residential room in village Hallomajra between 6.00 PM to 7.00 PM. A naka was laid by Moti Ram, Inspector near the temple of Baba Balak Nath. Raju Singh and Hare Ram were seen coming on a rickshaw cart and on being pointed by Daroga Yadav, both of them were arrested. Moti Ram, Inspector found blood stains on the front wheel of the rickshaw cart. The said wheel of the rickshaw cart after giving it the shape of sealed parcel, was taken into possession. On 21.04.2001 Raju Singh was interrogated. He made a disclosure statement about his keeping concealed the knife in dry grass near Eucalyptus trees in the jungle. He also disclosed that his pant and shirt, which received blood stains had been washed by him and had been placed with other clothes on the slab constructed on the back wall of his residential room. In pursuance of the said disclosure statement, Raju Singh got recovered the knife, which was taken into possession after converting it into a parcel and sealing the same. The pant and shirt were also got recovered by Raju Singh. They were also sealed and were taken into possession. Crl. Appeal No.D-733-DB of 2007 --7-- Dr. Sonia Arora, PW-1 conducted post-mortem examination on the dead body of Shailesh Rai on 21.04.2001. After noticing seven injuries on his person, she had opined that the death in this case was due to shock, as a result of multiple injuries, which were sufficient to cause death in the ordinary course of nature. The clothes found on the person of the deceased were taken and handed over to the police. The knife recovered in this case was put before the doctor, upon examination of which, it was opined by her that injuries found on the deceased could be caused by the said weapon. Statements of the witnesses were recorded. Various site plans of the place of occurrence and places of recovery were prepared. On completion of investigation, challan against Raju Singh, accused was prepared. Charge was framed against Raju, appellant for an offence punishable under sections 120-B and 302 read with section 34 of the Indian Penal Code, vide order dated 22.08.2001. The appellant pleaded not guilty to the charge and claimed trial. The prosecution has examined eighteen witnesses in all at the trial. After the evidence of the prosecution came to a close, the appellant was examined in the terms of section 313 Cr.P.C. The appellant has denied each piece of incriminating evidence brought by the prosecution when put to him in the shape of questions. He has denied even his selling rickshaw cart to the deceased for Rs.2200/- or a sum of Rs.700/- to have been left as balance payable by the deceased to him. He has denied having strained relations with the Crl. Appeal No.D-733-DB of 2007 --8-- deceased on this account. He has denied recovery of any article from him or in pursuance of his disclosure statement. He has claimed that he has been falsely implicated in this case with the help of false witnesses. According to him, the police obtained his signatures on blank papers. He, however, led no evidence in his defence. After hearing learned public prosecutor for the State and learned defence counsel, learned trial court has held Raju Singh, appellant guilty for the offence punishable under section 302 vide judgment dated 18.04.2007 and awarded the sentence detailed as above, vide order dated 19.04.2007. Feeling aggrieved by the judgment of conviction and the order of sentence passed by the trial court, the present appeal has been brought by Raju Singh, appellant. We have heard Mr. Pardeep Singh Poonia, learned Amicus-Curiae for the appellant and Ms. Ashima Mor, learned counsel for UT-Chandigarh and have gone through the record of the case with their assistance. Learned Amicus-Curiae for the appellant has submitted that motive on the part of the appellant for committing this offence is not believable. According to him, it was the appellant, who was to receive a sum of Rs.700/- from the deceased and he was not expected to have murdered Shailesh Rai. He has further submitted that the knife has been recovered from the place where from the dead body was recovered on the previous day. According to him, had this knife Crl. Appeal No.D-733-DB of 2007 --9-- been there at the spot, it could have been recovered on 20.04.2001 itself when many other articles besides the dead body such as hawai chappals, shawl etc. had been recovered from the spot. In order to support his submission in this regard, learned Amicus-Curiae has further submitted that Constable Rajesh Kumar, Photographer, PW-3 had taken eight snaps but had developed only seven of them. According to him, it appears that the 8th snap had the knife in question in the frame and as that would have become inconvenient to the prosecution to explain, so that snap was not developed. He has, therefore, submitted that the knife which has been shown as recovered from the place of occurrence on 21.04.2001 is clearly proved to be planted by the investigating agency. Learned Amicus-Curiae for the appellant has further submitted that the appellant did not try to run away. According to him, he was working as usual and was apprehended by the police while returning to his residence. He has submitted that this conduct shows that he was not involved in the murder of Shailesh Rai. Learned Amicus-Curiae has further submitted that it is a case based on circumstantial evidence for its proof. According to him, the circumstances projected by the prosecution are not established in the evidence and moreover they do not form a complete chain. He has further submitted that the circumstances are not pointing to the guilt of the accused and accused only. He has further submitted that in these circumstances, the appellant deserves acquittal. Crl. Appeal No.D-733-DB of 2007 --10-- Learned counsel for UT, Chandigarh has submitted that motive on the part of the appellant was clear as the deceased was not paying the balance sale consideration of the rickshaw cart. According to her, the knife was lying concealed under the dry grass at a distance of more than 200 yards from the place wherefrom on a previous day dead body and other articles were recovered. She has submitted that the distance between the dead body and the weapon was so large that the same could not have been discovered during the inspection of the spot. She has further submitted that the submission of learned Amicus-Curiae that the 8th snap was not developed because it had the knife in its frame is hypothetical and not based on evidence. According to her, no suggestion was put to Rajesh Kumar, Constable that the 8th snap was not developed for this reason. She has further submitted that absconding on the part of a suspect may prove to be a circumstance against him indicating his involvement in the crime but staying at the place would not prove his innocence. She has further submitted that the prosecution has examined all sort of witnesses to prove various circumstances which go to prove the guilt of the appellant. According to her, the circumstances proved on the record point the guilt of the appellant and appellant only and they are incompatible with any hypothesis of innocence of the appellant. It cannot be said that a person would not kill another if that other person owes him some money. The motive is rather very strong for killing the person who owed some amount and was not Crl. Appeal No.D-733-DB of 2007 --11-- paying the same. It has come clearly in the evidence that the appellant had sold his rickshaw cart to the deceased and the deceased was yet to pay him a sum of Rs.700/- from the sale price. The fact that the appellant has been arrested with the said rickshaw cart, on the front wheel of which there were blood stains would definitely show that the submission of learned Amicus-Curiae regarding absence of motive is not acceptable. It becomes clear on the record that the appellant had been rendered workless after selling his rickshaw cart and the full price of the same was not even paid by the deceased to the appellant. He was spending on his daily needs from the amount of Rs.1500/- paid as part consideration by the deceased to the appellant. These circumstances were sufficient to give motive to the appellant to kill the deceased and take back his rickshaw cart so that he could start earning again. Sunandi Devi, PW-7 is the witness from whom butcher's knife Ex.P1 was borrowed by the appellant on 19.04.2001. He was seen coming out with that butcher's knife of the house of Sunandi Devi wife of Baldev by Gurdhian Dass, PW-11 at 5.30 PM on 19.04.2001. Lal Jha, PW-12 saw the deceased in the company of the appellant at 8.00 PM on 19.04.2001. He saw them on the turning of Makhanmajra near Bhinder farm. The position in which they were seen by Lal Jha is of vital importance. This witness saw Shailesh Rai pedalling the rickshaw cart with the appellant and Hare Ram sitting in the said rickshaw. They were seen turning towards village Raipur Crl. Appeal No.D-733-DB of 2007 --12-- Khurd. Therefore, they were last seen together by Gurdhian Dass, PW-11 and were also seen going to the place of occurrence. Reverting back to the rickshaw cart, Mohan Yadav, PW- 9 has stated that a rickshaw cart was sold about 25 days prior to the occurrence by Raju Singh to Shailesh Rai for Rs.2200/-. He had identified the rickshaw cart recovered from the possession of the appellant as the one which was sold by the appellant to Shailesh Rai, deceased. The rickshaw cart, which was sold by the appellant to Shailesh Rai was not expected to be with the appellant. The appellant was, therefore, required to explain as to how the same came to him. He failed to do so. As per the report of the Central Forensic Science Laboratory, the wheel of rickshaw cart was found to have human blood of 'B Group' on it, which was the blood group of the deceased. The knife Ex.P1, which was stated by Dr. Sonia Arora to have possibly caused injuries to the deceased had been recovered in pursuance of the disclosure statement of the appellant. The knife was also found by Central Forensic Science Laboratory to have blood of the same group. We agree with the submission of learned counsel for UT, Chandigarh that the argument of learned Amicus-Curiae regarding the reason for not developing the 8th snap to be hypothetical. Rajesh Kumar, Constable, PW-3 has given his explanation in this regard, which was not questioned in his cross-examination. He has stated that Crl. Appeal No.D-733-DB of 2007 --13-- the 8th negative was not developed because two snaps had been taken of the dead body from the same angle. There is no suggestion put to Rajesh Kumar, PW-3 by the defence that reason for not developing the 8th snap was that the knife shown to have been recovered lateron was visible in the same. The rough site plans of the place of occurrence and the place of recovery of knife clearly show that the distance between the place of recovery of the dead body and the place of recovery of knife is quite considerable and may be about 100 yards. It cannot be believed that the investigating officer would have travelled that much to inspect the same. Moreover, the weapon is not stated to be lying on the ground. It had been found concealed under the dry grass. Therefore, there is no material on the record to make the submission of learned Amicus-Curiae about planting of knife probable. Taking into account all the circumstances discussed above, the prosecution has clearly established the guilt of the appellant and we find no infirmity in the finding of guilt recorded by learned trial Court against the appellant for the offence punishable under section 302 of the Indian Penal Code. We, therefore, find no merit in the appeal and dismiss the same. (VIJENDER SINGH MALIK) JUDGE ( HEMANT GUPTA) JUDGE 05.09.2011 dinesh