Punjab-Haryana High Court
Jasbir Singh Son Of Mota Singh And Others vs State Of Haryana on 21 August, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
CRA-D-1017-DB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-1017-DB of 2009
Date of Decision: 21.08.2013
Jasbir Singh son of Mota Singh and others ....Appellants
Versus
State of Haryana ....Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Rahul Rathore, Advocate
for the appellants.
Mr. Sandeep Vermani, Additional Advocate General,
Haryana.
FATEH DEEP SINGH, J.
On 22nd April, 2007 around 6-7 p.m. Harpreet Singh aged around 3½ years, son of complainant Jagir Singh PW13 was present in the street outside his house and thereafter was not found regarding which daily diary report No.35 dated 22nd April, 2007 Ex.P14 was got registered. Thereafter, on subsequent statement of the father of the deceased-child on which police proceedings Ex.P20 were conducted leading to endorsement Ex.P22 by which registration of FIR Ex.P21 was done by PW20 SI Jai Pal at Police Station Asandh, Karnal. On 26th April, 2007 Mota Singh accused undertook before the Panchayat to hand over Harpreet Singh. S.I. Jai pal PW20 on the basis of the registration of the case on 26th April, 2007 went to village Kheri Saraf Ali, where the occurrence has taken place and on receipt of Sharma Aarti 2013.11.14 15:37 I attest to the accuracy and integrity of this document CRA-D-1017-DB of 2009 -2- information regarding recovery of dead body of the child, lying face downwards in a watery slush in a small dirty water pond of the village summoned senior functionaries and from PW11 Ram Bir, Photographer got clicked the photographs of the dead body Ex.MO4 to Ex.MO7. S.I. Jai Pal thereafter, prepared Inquest report Ex.P3 along with rough site plan of this place Ex.P24 and found that the legs of the dead body had been tied with a rope Ex.MO8 made out of hay and from near the dead body got recovered pair of chappals Ex.MO9/1 and Ex.MO9/2. He also collected samples of the water from where the dead body was recovered. All the articles were prepared into parcels and taken into possession through memo Ex.P25. The police also took into possession samples of water from the gutter of the house of Darshan Singh father of DW1 and accused No.3 and 4 through memo Ex.P26.
After necessary proceedings the dead body along with police request Ex.P2 was sent for post mortem examination. Meanwhile, the pond from where the dead body was recovered was emptied and a ceramic broken pot Ex.MO11 was recovered which was taken into police possession by way of parcel through memo Ex.P28. Thereafter, a Forensic Science team was called which went to the house of the accused Mota Singh and got collected a part of the rope (dub) Ex.MO10 by way of parcel through memo Ex.P27. Similarly, from the house of Darshan Singh above said father of the accused Bhagwanti Kaur and Avinash Kaur the team lifted four samples Ex. MO12/1 to Ex.MO12/4 of greenish paint powder which were taken into police possession by way of memo Ex.P29.
Sharma Aarti 2013.11.14 15:37 I attest to the accuracy and integrity of this document CRA-D-1017-DB of 2009 -3-
On 27th April, 2007 Dr. Jatinder Kumar Jhakkhar, PW1 conducted post mortem examination upon the dead body and prepared post mortem examination report Ex.P1. Viscera was sent in a sealed parcel to the Pathologist and in his report Ex.P4 and Forensic Science Reports Ex.P5, Ex.P6 and Ex.P12 it was opined that there were traces of Organophosphorus in the viscera and thus, it was concluded on the basis of the same that the death was on account of poisoning. The personal belongings of the dead body i.e. shirt Ex.MO1, trouser Ex.MO2 and symbolic Kirpan Ex.MO3 recovered from the dead body were handed over in a sealed parcels to the police. PW8 Dr. Sanjay Kumar conducted Microscopic examination regarding autolytic changes of the organs and gave his report Ex.P4. The police took into possession previous medical record of the deceased-child from the emergency ward of the PGIMER Chandigarh by way of Ex.P13.
The articles so recovered were handed over to ASI Mahi Pal PW2, who was then deputed as MHC and who through PW3 Ramesh Kumar deposited the parcels with the Forensic Science Laboratory and through PW5 C. Patram deposited samples with PGI Rohtak. These witnesses have detailed the same through affidavits Ex.P7, Ex.P8 and Ex.P10 respectively. Scaled site plan of the place Ex.P11 was got prepared through C. Vir Shakti Singh, Draftsman PW6.
Accused Mota Singh was arrested on 5th May, 2007 and has suffered disclosure statement Ex.P19 before PW15 Inspector Jai Singh. Before PW19 Daljit Kaur and PW21 Dalip Singh accused Bhagwanti Kaur and Avinash Kaur who both are real Sharma Aarti 2013.11.14 15:37 I attest to the accuracy and integrity of this document CRA-D-1017-DB of 2009 -4- sisters suffered extra judicial confessions admitting their role in the murder of the deceased and it had also transpired that Darshan Singh PW17 had seen accused Bhagwanti Kaur carring away Harpreet Singh on the day of his disappearance and PW18 Surinder Singh had seen accused Mota Singh along with another person near the place of recovery of the dead body holding the deceased while standing in the pond. On 12th June, 2007 accused Bhagwanti Kaur and Avinash Kaur were formally arrested in this case by S.I. Chand Singh PW10.
On completion of investigations, S.I. Har Gian PW7 submitted report under Section 173 Cr.P.C upon commitment and framing of charges to which the accused pleaded not guilty and claimed trial.
The prosecution at the trial to prove its case examined 22 witnesses. Accused had denied the incriminating evidence in the stand taken under Section 313 Cr.P.C on account of enmity. In their defence the accused examined DW1 Gurdev Singh to prove documents Ex.D1 and Ex.D2 that she was bestowed with a child and that both accused Bhagwanti Kaur and Avinash Kaur are sisters and at the relevant time were present at Nagpur and had been falsely implicated on account of previous enmity.
The Court of learned Additional Sessions Judge, Karnal through impugned judgment dated 4th November, 2009/ 6th November 2009 held all the four accused guilty and sentenced accused Bhagwanti Kaur and Avinash Kaur to undergo rigorous imprisonment for ten years and to pay a fine of `10,000/- each and in default of payment of fine further rigorous imprisonment for two months under Sections 364/34 IPC. Under Sections Sharma Aarti 2013.11.14 15:37 I attest to the accuracy and integrity of this document CRA-D-1017-DB of 2009 -5- 302/34 IPC accused Bhagwanti Kaur and Avinash Kaur were further sentenced to undergo rigorous imprisonment for life and to pay a fine of `10,000/- each and in default of payment of fine further imprisonment for two months. Under Sections 201/34 IPC accused Jasbir Singh, Mota Singh, Bhagwanti Kaur and Avinash Kaur were sentenced to undergo rigorous imprisonment for three years and to pay a fine of `5,000/- each and in default of payment of fine they shall further undergo rigorous imprisonment for one month.
These findings have been challenged before this Court in the instant appeal as per grounds spelled out therein.
After hearing counsel for both the sides at length and perusing the record of the case. It is well established by the testimony of PW1 Dr. Jatinder Kumar Jhakkhar, PW8 Dr. Sanjay Kumar and PW9 Dr. Sunit Singh that deceased Harpreet Singh a minor son of the complainant, who was aged around 3 ½ died on account of Organophosphorus poisoning, thus, a homicidal death. The contention of appellant's counsel that on account of putrefaction the dead body could not be identified is certainly off the tangent and it has been rightly contended by the State Counsel that no doubt there was putrefaction but there is nothing suggestive that the body was beyond recognition. More so, articles of the dead body consisting of shirt Ex.MO1, trouser Ex.MO2 and symbolic kirpan Ex.MO3 are sufficient enough to identify the deceased and so by means of his chappals Ex.MO8 and which was done so by the father of deceased. Therefore, these submissions do not carry any weight. No doubt, there is no direct evidence to this infanticide, however, the deposition of Sharma Aarti 2013.11.14 15:37 I attest to the accuracy and integrity of this document CRA-D-1017-DB of 2009 -6- PW17 Darshan Singh is very vital in the light of submissions of learned State counsel. It was on the day when the child disappeared this witness had seen the child who was standing in front of the door of his house being lifted by accused Bhagwanti Kaur, who took the child into her house, thus, propounding the theory of last seen. After this witness returned from his visit to Rajasthan on 26th April, 2007 and came to know about the death of child and had brought this matter to the notice of father of the child. No doubt, the statement of this witness in the light of submissions of the appellant counsel's have been recorded by the police belatedly but there is categoric averment by him that on his return from Rajasthan on 26th April, 2007, he had informed the father of the child as to what he has witnessed earlier. Learned counsel for the appellant could not bring anything adverse that has come in the cross-examination of this witness nor any satisfactory explanation is coming to this from the defence. The other witness as has been submitted by the counsel for the State, PW18 Surinder Singh is a witness to the episode when accused Mota Singh along with another person were standing at the pond with the child. In his cross-examination this witness has given sufficient explanation for not informing this fact immediately as he never suspected anything and further that he is not in visiting terms with the father of the deceased and had stated so to the police straight way. Thus, this theory of the deceased-child with the accused certainly is highly believable and does not casts any aspersion on its credibility.
No doubt, under the golden principle of criminal jurisprudence the onus is always upon the prosecution to Sharma Aarti 2013.11.14 15:37 I attest to the accuracy and integrity of this document CRA-D-1017-DB of 2009 -7- establish its case beyond the shadow of reasonable doubt but at the same time an onerous duty is cast upon the defence as well to explain the facts which are within the special knowledge of the accused which can throw light on the incident and the falsity of that very explanation certainly is to the detriment of the accused. In the light of positive evidence that Bhagwanti Kaur was seen carrying away the deceased child immediately before the occurrence and her studied silence to explain for the circumstances do not augur well for the accused coupled with the fact that through DW1 Gurdev Singh own brother of Bhagwanti Kaur and Avinash Kaur and nephew of Mota Singh and cousin of Jasbir Singh present appellants has sought to bring about the fact of history of enmity between the complainant side and the accused side and learned counsel for the appellant could not convince the Court, how such a remote relationship of Dalip Singh so detailed by this defence witness with Lakha Singh @ Lakhvir Singh with whom Dalip Singh's daughter Kamlesh Kaur is married has any nexus with the present complainant. The witness claims that Daljit Kaur PW19 is daughter-in-law of his uncle and which animus, if any, has not been cogently brought on the record and merely because this witness PW19 is married in the village of the accused does not give any support to the defence raised by accused. When there is positive averment by this witness in her cross-examination that they have no links/connections with Sukhdev Singh alleged rapist of daughter of Mota Singh accused, the defence certainly fails to bring about any convincing animus for the PWs to testify against them.
The corroborative evidence brought about by the reports Sharma Aarti 2013.11.14 15:37 I attest to the accuracy and integrity of this document CRA-D-1017-DB of 2009 -8- of laboratory, especially, Ex.P6 which brings about the fact that diatoms detected in the pond water from which the dead body was recovered and from those of samples drawn from the sewerage water of the house of the accused tallied with each other. Furthermore, as per report Ex.P12 hay rope (dub) pieces recovered from the house of accused and with which the legs of the deceased-child were tied were found to be of similar physical and microscopic appearances and further more, on the basis of spectrographic analysis the broken ceramic pot recovered from beneath the dead body and greenish colour powder drawn as sample from the house of accused were found to be of same elemental composition are matters which have great bearing on the prosecution's story and lends credence to it as well as to the other evidence brought on the record. The prosecution has been successful in completing this chain in entirety clearly pointing towards the guilt of the accused.
The evidence so detailed, certainly stirs judicial conscience that it was none but the appellants who were instrumental in murdering the child. The learned trial Court has given well reasoned findings. Thus, we are not inclined to interfere in the same and the appeal being hopelessly devoid of any merit stands dismissed.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) JUDGE 21.08.2013 aarti Sharma Aarti 2013.11.14 15:37 I attest to the accuracy and integrity of this document