Punjab-Haryana High Court
Pardeep Kumar S/O Harmesh Kumar vs State Of Punjab on 3 November, 2012
Author: S.S.Saron
Bench: S.S.Saron
CRA NO.D-660-DB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA NO.D-660-DB of 2009
DECIDED ON: November 03, 2012
1. Pardeep Kumar s/o Harmesh Kumar,
r/o Mohalla Khairian, Railway Road,
Nakodar, District Jalvandhar and
2. Anita, w/o Pardeep Kumar,
r/o Udham Nagar, Nakodar,
District Jalandhar
........Appellants
Versus
State of Punjab
.........Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present Mr. P.S.Jammu, Advocate, for the appellants.
Mr.Anter Singh Brar, Sr. DAG, Punjab for respondent. S.P.BANGARH, J The appellants have assailed the judgment of conviction and order of sentence dated 28.01.2009, passed by the learned Sessions Judge, Jalandhar, in Session Case No. 12/2006, Sessions Trial No. 06 of 2009, emanating from FIR No.198 dated 06.06.2006, under Sections 302, 364 and 201 of the Indian Penal Code ('IPC' for short) of Police Station Nakodar, whereby, they were convicted for commission of offences punishable under Sections 302 and 201 IPC and sentenced to undergo imprisonment for life and to pay fine of `5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for two years, for the commission of offence punishable under Section 302 IPC, to further CRA NO.D-660-DB of 2009 2 undergo rigorous imprisonment for a period of five years and to pay fine of `1,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of six months each for commission of offence punishable under Section 201 IPC. However, vide impugned judgment, they were acquitted of the offence punishable under Section 364 IPC.
Case of the prosecution is that Mangat Rai (deceased) was running shop for the sale of televisions and refrigerators etc. in bus stand Mehatpur, Nakodar and had employed Sandeep Sengal (deceased) as his driver. Both went missing on 05.06.2006. When Gagan Banger, complainant son of Mangat Rai came to the shop, he was told by the shop keepers of adjacent shops that his father and Sandeep Kumar had been abducted in a motor car make Opel Kores bearing registration No. PB-67- A-0558, belonging to Dilbagh Singh, a friend of his father, by some unidentified persons. Complainant and his relatives kept on tracing them, but could not get any clue. On 06.06.2006, complainant Gaggan Banger made written application EX.PA, before Rupinder Singh, ASI, who after making his endorsement Ex.PA/1, thereon, sent the same to Police Station Nakodar, where, formal FIR Ex.PA/2 was recorded under Section 364 IPC by Surjit Singh, ASI, on the basis of application Ex.PA.
Rupinder Singh, ASI went to the place of occurrence and prepared site plan Ex.PJ, in respect, thereof, with correct marginal notes after spot inspection. On 07.06.2006, Chain Singh (PW1) was present in his house, where both the appellants alongwith Manjit Singh (since deceased) came to him and disclosed that on 05.06.2006, they had kidnapped Mangat Rai and his driver Sandeep Kumar and they took them to the kothi of Mangat Rai, situated at Jalandhar, where they killed both of them and, thereafter, took their corpses to the State of Himachal Pradesh, where, these were thrown in gorges. They requested Chain Singh to CRA NO.D-660-DB of 2009 3 produce them before the police and he asked them to come on the next day, but, thereafter, they never came to him. Statement of Chain Singh under Section 161 of the Code of Criminal Procedure ( 'Cr.P.C' for short) was recorded on 08.06.2006 by the police.
On 09.06.2006, Sukhdev Singh, SI received secret information that both the appellants were sitting in bus stand of Nangal Jiwan. Thereupon, he accompanied by Harvinder Singh, ASI, Paramjit Singh, ASI and other police officials went there, and on the way, joined Lal Chand in the police party. On the identification of Lal Chand (supra), Sukhdev Singh. SI arrested both the appellants and interrogated them. During interrogation, Pardeep Kumar appellant suffered a disclosure statement Ex.PK to the effect that he alongwith his wife Anita appellant and Manjit Singh abducted Mangat Rai and Sandeep Kumar on 05.06.2006, took them to Kothi No. 114 situated in Udhey Nagar, Jalandhar and murdered them there. Later, their corpses were thrown in different gorges in the State of Himachal Pradesh and only, he had the knowledge about the places where those corpses were thrown and could get those recovered.
Anita appellant was also interrogated by Sukhdev Singh, SI, who also suffered similar disclosure statement Ex.PL, which was suffered by her husband (co-appellant). Thereafter, Sukhdev Singh, SI took the appellants to Udey Nagar and on their pointing, he prepared rough site plan Ex.PS of the house, where the deceased were taken after abduction. Thereafter, the police party took the appellants to the State of Himachal Pradesh. Lovedeep, Lal Chand and Mohinder Singh, ASI were also joined in the police party. From Ravi Dass Police Post, Surinder Kumar, Incharge of that police post, was also joined. Police party reached in the limits of village Darag Chelia. A request was made to the Tehsildar, Palampur, who sent Parkash Chand Azad, Naib Tehsildar and in the presence of the latter, as also, in the presence of the police officials and other witnesses, CRA NO.D-660-DB of 2009 4 appellants got recovered corpse of Mangat Rai, which was identified by Lal Chand from the place disclosed in the disclosure statement (supra).
Photographs Ex.P9 to Ex.P14 regarding that recovery were also taken by Mohinder Singh, ASI. Video film was also got prepared by the police. Subsequently, compact disc of the video film was also prepared. Corpse of Mangat Rai was seized vide memo Ex.PH. Sukhdev Singh, SI prepared inquest report Ex.PU on the corpse of Mangat Rai and sent it to the mortuary of Civil Hospital, Jalandhar for autopsy alongwith his application Ex.PU/1. Later, appellants took the police party to a place in the limits of village Darkata in the limits of Police Station Haripur, District Kangra, where Munish Chaudhary, Naib Tehsildar, on the direction of Sub Divisional Magistrate, joined the said party for recovery of corpse of Sandeep Kumar. Appellants got recovered corpse of Sandeep Kumar from the place disclosed in the disclosure statement, which was identified by his brother Lovedeep. Photographs Ex.P3 to Ex.P8 were also taken by Mohinder Singh, ASI, who also prepared video film regarding the recovery of proceedings and compact disc was also prepared.
The corpse of Sandeep Kumar was seized vide memo Ex.PY. Inquest report Ex.PT was also prepared on the corpse of Sandeep Kumar which was also sent to the mortuary of Civil Hospital, Jalandhar alongwith application Ex.PT/1 for autopsy. Autopsy on the corpses of Mangat Rai and Sandeep Kumar could not be conducted in Civil Hospital, Jalandhar, as those were in advance stage of decomposition, which were sent to Government Medical College, Amritsar, where a board of doctors consisting of Dr.Deepak Walia, Dr. Kirpal Singh and Dr. Rahul Chawla was constituted by the Principal and Professor and Head, Department of Forensic Medicine of that college for conducting autopsy upon the corpses (supra), which was performed by that board of doctors on 10.06.2006. CRA NO.D-660-DB of 2009 5
Four ante mortem injuries were found on the corpse of Sandeep Kumar and it was opined by the board of doctors that the injuries were to the vital organs and cause of death was due to those injuries which were sufficient to cause death in the ordinary course of nature. During the autopsy on the corpse of Mangat Rai, five ante mortem injuries were found, alongwith burns and board of doctors opined that cause of death was due to shock and hemorrhage, which was sufficient to cause death in the ordinary course of nature. On 09.06.2006, Rupinder Singh, ASI collected receipt book from the Toll Tax Barrier, Gagret, which contained the receipt regarding entry of car (Open Kores) into the State of Himachal Pradesh and the same was seized vide a recovery memo.
On 11.06.2006, Paramjit Singh, SI alongwith other police officials was present in village Mudhan, where Paramjit Singh, Sarpanch of village Saidpur came to him and disclosed that corpse of Manjit Singh was lying in the fields and he accompanied by Narinder Pal Singh, Gurpal Singh, Photographer and others went to that place and found that Manjit Singh had committed suicide by hanging himself with a tree. That corpse was identified by Narinder Pal Singh. Photographs Ex.P3 to Ex.P7 were taken by Gurpal Singh, who also prepared video film and compact disc of that video film later.
Paramjit Singh, SI prepared inquest report Ex.PZ/1 on the corpse of Manjit Singh and he also recovered two written notes Ex.P1 and Ex.P2 from that place alongwith pair of chapals. He converted pair of chapal and clothes into a parcel, which was sealed with the seal bearing impression 'PS'. That parcel and the handwritten notes of Manjit Singh (deceased) were seized vide memo Ex.PQ. Corpse of Manjit Singh was later sent to the mortuary of Civil Hospital, Jalandhar for autopsy through Manjit Singh, ASI. Search of house of Manjit Singh was conducted and a torn notebook Ex.P3 was recovered from that place, which was seized vide CRA NO.D-660-DB of 2009 6 a memo Ex.PR. On return to police station, Sukhdev Singh aforesaid deposited the case property with Gurdial Singh, MHC.
Motor car was also got recovered by the appellants and that was seized vide a memo. On the same date, Paramjit Singh, SI interrogated Pardeep Kumar appellant, in the presence of Satpal and other police officials, who suffered disclosure statement Ex.PN, to the effect that he has kept concealed `62,000/- in cash in a polythene envelope in the water tank of flush seat made in the courtyard of his house, as also, he has kept concealed a 'daat' after wrapping the same in a piece of cloth on the roof of that flush toilet and he could get those same recovered from that place. During interrogation, Anita appellant also suffered disclosure statement Ex.PA to the effect that she has kept concealed `10,000/- and a gold bracelet after putting the same in small purse in a small safe of almirah lying in her house and could get the same recovered from that place.
Pursuant to his disclosure statement, Pardeep Kumar appellant got recovered `62,000/- from the water tank of toilet seat and one 'daat' from the roof of the toilet, whose rough sketch Ex.PO/1 was prepared and that was converted into a parcel, which was sealed by Paramjit Singh, SI with his seal bearing impression 'PS'. Sealed parcel and the currency notes recovered from Pardeep Kumar appellant were seized vide memo Ex.PQ. Rough site plan of the place of recovery Ex.P2/3 was also prepared. Later Anita got recovered `10,000/- and bracelet of gold from the place disclosed in her disclosure statement and those were seized vide memo Ex.PP. Paramjit Singh, SI also prepared rough site plan of place of CRA NO.D-660-DB of 2009 7 recovery Ex.P2/4 with correct marginal notes. On return to Police Station, he deposited the case property with MHC. Gaggan Banger came to Paramjit Singh, SI in Police Station Nakodar and produced one carton Nokia 1600 and one notebook, last page of which was signed by Mangat Rai and those were seized vide memo Ex.PB.
On 29.06.2008, photographs and compact disc were produced before Sukhdev Singh, SI by the photographer, which were seized vide a memo. On 12.07.2006, Arjun Singh produced before Sukhdev Singh, SI, cell phone make Nokia MO5 and one scooter make Chetak bearing registration No. PB-08-AM-3670, which were seized vide memo Ex.PU.
During investigation, details of calls made from mobile phone Nos. 9876715279 and 9815919036 were collected from the Bharti Airtel Limited. The sealed parcel containing daat (sickle) was sent to Forensic Science Laboratory, Punjab, Chandigarh through Jugal Kishore, HC on 19.06.2006, who deposited it in that office with seals intact. After examination, it was reported by the Deputy Director of that Laboratory that the same was stained with human blood. The written notes recovered from the corpse of Manjit Singh and his admitted handwriting were sent to the Forensic Science Laboratory, Punjab, Chandigarh and it was reported by Asstt. Director of that Laboratory that those were the result of common authorship.
After completion of investigation, Station House Officer of Police Station Nakodar, instituted police report under Section 173 Cr.P.C before the Illaqa Magistrate to the effect that it appears that the appellants CRA NO.D-660-DB of 2009 8 had committed offences punishable under Section 364, 302 and 201 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were furnished to the appellants by the Illaqa Magistrate, who later committed the case to the Court of Session for trial.
On receipt of this session case on commitment, learned Session Judge framed charge under Sections 364, 302 and 201 IPC against the appellants, whereto, they pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined Chain Singh as PW1, Gagan Bangar, complainant as PW2, Daljit Kaur, Junior Asstt. DTO Office, Jalandhar as PW3, Mukhtiar Singh, Clerk, SDM, Shahkot as PW4, Mohinder Singh. ASI as PW5, Lovedeep as PW6, Dr.Deepak Walia as PW7, Mandhir Singh as PW8 and Parkash Chander Azad, Naib Tehsildar as PW9, Chanchal Singh, HC as PW10, Rupinder Singh, ASI as PW11, Lal Chand as PW12, Satpal as PW13, Narinder Pal as PW14, Gurpal Singh @ Pali as PW15, Sukhdev Singh, SI as PW16, Jugal Kishore, HC as PW17, Sunil Rana as PW18, Munish Chaudhary, Naib Tehsildar, Baroh, District Kangra as PW19, Gurpal Singh, HC as PW20, Paramjit Singh, SI as PW21 and Harwinder Singh as PW22 and closed the evidence.
After the closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C, wherein, they denied the allegations of prosecution, pleaded innocence and false implication in this case.
Pardeep Kumar gave his own version that the corpses had already been recovered.
The appellants were called upon to enter in defence and they examined Sunil Manchanda, LDC as DW1, Bhim Sain as DW2 and Sh.Rakesh Kumar, Civil Judge (Senior Division) cum Additional CJM, CRA NO.D-660-DB of 2009 9 Gurdaspur as DW3 and closed the defence evidence,later.
After hearing both the sides, learned trial Court vide impugned judgment and order of sentence, convicted and sentenced the appellants as described in the first paragraph of this judgment. Aggrieved, thereagainst, the appellants, who were accused before the learned trial Court, have come up in this appeal with prayer for acceptance, thereof, and for acquittal of the charge framed against them by the learned trial Court for commission of offences punishable under Sections 302 and 201 IPC.
Learned counsel for the appellants and learned Senior Deputy Advocate General for the respondent have been heard and record of the learned trial Court perused with their assistance.
First of all, it is to be seen as to what the prosecution witnesses deposed in this case.
PW1, who was Sarpanch of his village and now a Numberdar, testified that on 07.06.2006, at about 04:00 p.m, he was present in his house located in village Daroli where both the appellants and Manjit Singh (since deceased) came and disclosed him that on 05.06.2006, they had kidnapped Mangat Rai and his driver Sandeep Sehgal, took them to the kothi of Mangat Rai at Jalandhar and killed both of them and, thereafter, threw their corpses in the State of Himachal Pradesh in gorges. He further testified that they requested him to produce them before the police and he told them to come on the next morning for their production before the police, but on the next day, they did not turn up and, thereafter, he went to the Station House Officer and made his statement.
PW2 also testified that his father Mangat Rai Banger was running a shop for the sale of T.Vs and refrigerators under the name of 'Banggar Gift Centre" at Nakodar and on 05.06.2006, he at about 05:00 p.m, went to that shops, where he was told by the shopkeepers of adjacent shops that his father had been kidnapped in a car bearing No.PB-67A- CRA NO.D-660-DB of 2009 10 0558, belonging to one Dilbagh, friend of his father, by two unidentified persons alongwith his driver. He testified that they kept searching his father and driver at their own level uptil evening and on the next morning, he moved application Ex.PA in respect of kidnapping of his father. He further testified that his father was having mobile phone no. 9888602058 and he again met police on 07.06.2006 and suffered a statement before the police. He also testified that his father used to wear golden bracelet on his right arm. He also testified that on 11.06.2006, police came to his house and disclosed that his father had been murdered and they showed one mobile phone and golden bracelet belonging to his father, which was identified by him and he signed memo Ex.PB dated 11.06.2006.
PW3 also testified that as per entry of the register maintained in the office of DTO, Jalandhar, car bearing registration no. PB-08-AM- 3670 was registered in the name of Manjit Singh son of Gurnam Singh, r/o Nangal Jiwan, District Jalandhar and he identified the signature of Sh.R.S.Jassal, ADTO, Jalandhar on the registration certification Ex.PC of this vehicle.
PW4 testified that as per the entry of register maintained by SDM, Shahkot, vehicle bearing No. PB-67A-0558 was registered in the name of Dilbagh Singh son of Baldev Singh, resident of Aloakh, Post Office Meham and the same was not further transferred to anyone.
PW5 also testified that on 09.06.2006, he was posted at CIA staff and used to work as photographer and on that date, he accompanied police party headed by Pritam Singh, SP to the State of Himachal Pradesh and took photographs of the corpse with the help of digital camera. He also testified that he took the card of digital camera to K.G Photo Max and got prepared the photographs Ex.P3 to Ex.P8. He also testified that he had taken video camera with him and prepared video film regarding the recovery of corpse. He also went to other place in Himachal Pradesh, CRA NO.D-660-DB of 2009 11 where other corpse was lying and he took photographs of that with the help of digital camera Ex.P9 to Ex.P14. He also made video film with the video camera. Two parcels containing CDs Ex.P15 and Ex.P16 were produced during the deposition of this witness, who produced these photographs and CDs before Sukhdev Singh, SI and the latter seized those vide memo Ex.PD, during investigation, which was attested by him (PW5).
PW6 Lovedeep @ Matt also testified that Sandeep Sehgal was his brother, who used to work with Mangat Rai as a driver and on 05.06.2006, they both (Mangat Rai and Sandeep) were kidnapped and he went to police station Nakodar alongwith other persons for lodging the report; on 09.06.2006, he was called to Nangal Jeeva by the police and at that place, both the appellants were present with the police and they took them in a vehicle to the State of Himachal Pradesh, from where, the corpse of his brother was recovered and the same was identified by him and inquest report, thereof, was prepared by the police and he (PW6), put the signatures on the inquest report. He also testified that Tehsildar and other police officials were with him when he went to that place and he was sent back from that place by the police and his statement was recorded.
PW8 also testified that after visiting the spot, he prepared map Ex.PG dated 03.06.2008, at the instance of Sukhdev Singh, SI.
PW9 also testified that on 09.06.2006, he was directed by the Tehsildar on phone that Punjab police had come and he should go to the spot in the limits of village Drang Chelia and he went there and both the appellants were with the police party and they took him and police party inside the gorge where, a corpse was lying in the water in a decomposed condition and Sukhdev Singh, SI identified that corpse as that of Mangat Rai and memo Ex.PH, in this regard was prepared, which was signed by him. He also testified that one private person was also with the police party.
CRA NO.D-660-DB of 2009 12
PW10 testified that on 06.06.2006, he was posted in police station Nakodar and on that date, MHC gave special report of this case to him for delivering the same to the Magistrate and the other officer and first of all, he delivered this special report to the Magistrate and then to other officers and his statement was recorded by the police.
PW11 also testified that on 05.06.2006, he was posted as incharge of police post Nakodar and on that date, he was present on Ambedkar Chowk, Nakodar, where Gagan Banger presented an application Ex.PA for registration of a case and, thereon, he put endorsement Ex.PA/1 and sent the same to the Police Station Nakodar, where formal FIR Ex.PA/2 was recorded by Surjit Singh, ASI. He further testified that on 09.06.2006, he was present in Police Staion and was joined by Sukhdev Singh, SI in the police party and they went to bus stand of village Nangal Jeeva and appellants were found in bus stand of that village and were apprehended. He further testified that Sukhdev Singh, SI in his presence, as also, in the presence of other police officials, first interrogated Pardeep Kumar appellant and during interrogation, latter suffered a disclosure statement Ex.PK, to the effect that they had thrown the corpse of Mangat Rai Bangar and his driver at different places in the state of Himachal Pradesh and later Anita appellant was interrogated, who also suffered disclosure statement Ex.PL that they have thrown the corpses of Mangat Rai and his driver in the state of Himachal Pradesh and, thereafter, they went there on the same day and from the toll tax Barrier at Gagret, receipt book Ex.P1 was seized vide a memo and then they went to village Rani Lall and corpse of Sandeep was recovered from that place and then he was sent back.
PW12 further testified that Mangat Rai Bangar was the son of elder brother of his father, who was kidnapped on 05.06.2006 and that both the appellants were arrested in his presence at the bus stop of Nangal CRA NO.D-660-DB of 2009 13 Jeeva and both appellants made a joint statement that they alongwith Manjit Singh had committed the murder of Mangat Rai Banger and his driver and threw their corpses in the state of Himachal Pardesh and could get those recovered; thereupon, they took them to Himachal Pradesh where, Parkash Chander, Naib Tehsildar was joined in the police party and the appellants took them to Kangra and then to Palampur and corpses were got recovered by them from Drang Chelia from a gorge, which was about 20 feet deep and he identified the corpse as of Mangat Rai Banger and the police recorded proceedings at the spot, whereon, his signatures were obtained by the police.
PW13 also testified that on 11.06.2006, he had received a message from police station that Pardeep Kumar and other accused had committed the murder and he went to the police station and both the appellants were present in the police station and they were interrogated and during interrogation, Pardeep Kumar appellant suffered a disclosure statement Ex.PN to the effect that currency notes of ` 62,000/-, as also, a datar have been lying in his house and he could get those recovered and later Anita appellant also made disclosure statement Ex.PO, that she had kept concealed bracelet and currency notes of ` 5,000/- in her house and she could get those recovered and her statement Ex.PO was recorded and later, they got recovered the currency notes and bracelet, whereon, words 'MRV' were ascribed and those were seized vide memo Ex.PP and gold bracelet Ex.MO was produced in the Court during the deposition of this witness.
PW14 also testified that he knows Manjit Singh of his village and on 11.06.2006, Paramjit Singh, Sarpanch gave information to him that one corpse was lying in his field and he went CRA NO.D-660-DB of 2009 14 to that place and at that time, he was accompanied by Ashok Kumar, Sarpanch and they found the corpse of Manjit Singh and he had committed suicide by hanging himself with a tree and two papers Ex.P1 and Ex.P2 were recovered, which were seized vide memo Ex.PQ and after lunch, they went to the house of Manjit Singh and the torn notebook Ex.P3 was recovered and was seized vide memo Ex.PR.
PW15 also testified that he has been running a photo studio under the name of Pali Studio at Bus Stand Nakodar and he received message from police station to reach village Nangal Jeeva and he went to that place and he saw one corpse lying at that place and he took 10/15 snaps, as also, prepared video film and positive prints of the photographs are Ex.P3 to Ex.P17 and he also prepared two compact discs MO1 and MO3 and further testified that his statement was recorded.
PW16 is the Investigating Officer of this case, who testified that on 09.06.2006, he apprehended appellants and first he interrogated Pardeep Kumar, who suffered a disclosure statement Ex.PK to the effect that the corpses of Mangat Rai Banger and Sandeep Kumar were thrown by them in gorges in Himachal Pradesh and then he interrogated Anita appellant, who also suffered disclosure statement Ex.PR and then he went to New Deol Nagar, Jalandhar and prepared rough site plan Ex.PS and then he received message from Pritam Singh, DSP that the police was to go to Himachal Pradesh for recovery of the corpses, which were recovered from District Kangra and he prepared inquest report Ex.PT CRA NO.D-660-DB of 2009 15 on the corpse of Sandeep Kumar and sent that for autopsy through Ravinder Singh, ASI alongwith application Ex.PT/1 and then they went to area of Palampur for recovery of other corpse and Parkash Chander Azad, Naib Tehsildar and Brahm Datt, ASI of Illaqa were also called and he prepared inquest report Ex.PU on the corpse of Mangat Rai Banger, which was sent to mortuary at Jalandhar through Nirmal Singh, HC alongwith application Ex.PU/1 for autopsy.
PW16 also testified that on 11.06.2006, Paramjit Singh, SHO interrogated the appellants and during interrogation, Pardeep Kumar appellant suffered disclosure statement Ex.PN that he has kept concealed the weapon of offence on the roof of his toilet as also cash and, thereafter, Anita appellant also suffered disclosure statement Ex.PO that she had kept concealed ` 10,000/- and a bracelet in the almirah of her house and she could get those recovered and later pursuant to these disclosure statements, the appellants got recovered aforementioned articles, which were taken into possession and rough sketch of the datar Ex.PO/1 was also prepared and cash and bracelet were seized vide memo Ex.PP. He further testified that on the same day, he accompanied Avtar Singh, ASI and went to village Nangal Jeeva for collecting the handwriting of Manjit Singh accused, who had already died and in the presence of Narinder Pal, Sarpanch, copy containing handwriting of that accused was taken into possession vide memo Ex.PR and on 29.06.2006, he took into possession the compact disc regarding the video film of the corpses of Sandeep Sehgal and Mangat Rai Banger and he also seized photographs and prepared memos in this regard. He also CRA NO.D-660-DB of 2009 16 testified that on 12.07.2006, Arjun Singh produced before him the mobile phone and scooter bearing registration no. PB-08-AM-3770 and those were seized vide memo Ex.PU. Mobile MO5 and scooter MO6 were produced during the deposition of this witness.
PW17 tendered in evidence his affidavit Ex.PN.
PW18 Sunil Rana produced the record pertaining to mobile telephone connection no.98159-19036, which was issued on 14.01.2006 in the name of Manjit Singh. He also brought sheet containing the record of the calls, which were made from this mobile telephone from 01.06.2006 to 30.06.2006 and he also testified that mobile phone no.9876751279 was issued in the name of Gurmeet Singh son of Hukam Singh, resident of Sighana Hari Singh, District Jalandhar and he also produced call details sheet Ex.PV, in respect, thereof, and also produced call detail sheet Ex.PX relating to mobile phone No. 9815919036.
PW19 testified that he was posted as Naib Tehsildar, District Kangra and on application filed before the SDM of that Sub Division by the police of police station Nakodar, he was directed by the SDM, to accompany the police party and accordingly, he after accompanying the police party went to the spot in the area of village Darkata police station Haripur, District Kangra; Police party was also accompanied by some other person and on the pointing out of Pardeep Kumar and Anita, appellants present in the Court, corpse of Sandeep Sehgal was recovered, which was identified by his brother Lovedeep and was seized vide memo Ex.PY.
PW20 tendered in evidence his affidavit Ex.PZ.
CRA NO.D-660-DB of 2009 17PW21 testified that on 08.06.2006, he was posted as Station House Officer of police station Nakodar and on that date, he was present in the police station, where Chain Singh, resident of Rauli came to the police station and made his statement, wherein, he named appellants and Manjit Singh as accused of this case and at that place, Paramjit Singh, Sarpanch of village came to him and stated that the corpse of Manjit Singh was lying in the fields and accordingly, he went to that place and conducted proceedings under Section 174 Cr.P.C, as also, he prepared inquest report in respect of that corpse Ex.PZ/1, which was identified by Narinder Singh and Ashok Kumar and from the spot, two handwriting notes, one pair of chapal and one piece of yellow cloth were recovered, which were converted into a parcel and that was sealed by him with his seal bearing impression 'PS' and that sealed parcel and the handwriting notes were seized vide recovery memo Ex.PQ. Pair of chapal MO4 and piece of cloth MO5 were produced during the deposition of this witness, who further testified that he took the corpse of Manjit Singh in his possession vide memo Ex.PZ/2 and sent the same to the mortuary of Civil Hospital, Jalandhar for autopsy, thereon, through Amarjit Singh, ASI and on return to Police Station, he deposited the case property with Gurpal Singh, MHC.
PW21 also testified that at that time, both the appellants were in the police lock up and he interrogated them and Satpal, public witness, was joined in this regard and Pardeep Kumar appellant disclosed that he had kept concealed a datar in the roof over the toilet of his house and that he had kept concealed ` 62,000/- CRA NO.D-660-DB of 2009 18 after wrapping those in a polythene bag in the water tank of his toilet and his statement Ex.PN was recorded. He futher testified that later, he interrogated Anita appellant in the presence of Gurpal Kaur, lady constable and during interrogation, she disclosed that she had kept concealed one bracelet and ` 10,000/- in almirah of her house and her statement Ex.PO in this regard was recorded and that both got recovered the articles aforesaid and rough sketch of datar Ex.PO/1 was prepared and was made into a parcel, which was sealed with his seal bearing impression 'PS' and also he took the currency notes vide recovery memo Ex.PQ. The currency notes Ex.P16 to Ex.P95 and Ex.P96 to Ex.P117 were produced during the deposition of this witness.
PW21 also testified that he prepared rough site plan Ex.P2/3 and he went to the house of Anita appellant and she got recovered currency notes of `10,000/- and a bracelet, whereon, words 'MRB' were engraved and he seized bracelet MO1 and currency notes of denomination of ` 1,000/- Ex.P118 to Ex.P126 and purse MO5 vide memo Ex.PP. He also testified that he prepared rough site plan of the place of recovery Ex.PZ/4. He further testified that at that place, Gagan Banger met him and he produced before him one carton of Nokia 1600 Ex.P118 and one notebook, last page of which was signed by Mangat Rai Banger Ex.P127, and he seized those vide memo Ex.PB. He further testified that on 15.06.2006, he was present in police station, where Paramjit Singh resident of Jalandhar came and got recorded his statement.
PW22 testified that he was posted as Incharge toll tax CRA NO.D-660-DB of 2009 19 barrier, Gagret and tax book is being maintained at this barrier, wherein, entries are made regarding all the motor vehicles crossing that barrier. He identified the book lying on the spot containing slips no.13201 to 13600 and he further testified that he has seen the slip No. 13416, which was issued in respect of car, which had come from the side of Hoshiarpur and had gone towards Chintapurni.
DW1 brought file of case No. 805 titled State v. Avtar Singh and Balraj Kaur, pertaining to FIR No. 198/2006 (pertaining to this case) from judicial record room of Tishazari Court, Dellhi. She testified that this case was decided by Mrs. Seema Maini, Additional District Judge-cum- Chief Metropolitian Magistrate, Delhi.
DW2 testified that a fax message was received from SSP Jalandhar, that Avtar Singh and Balraj Kaur were somewhere in Delhi, who were wanted in FIR No.198 dated 06.06.2006 registered in police station Nakodar and he arrested them. He further testified that on 16.06.2006, a secret informer informed that those wanted accused were present in house no.206, Block B, Bhajanpura Delhi and he recorded one report in the DDR of Police Special Cell, Delhi and disclosed all the facts to ASP. He further testified that he constituted a raiding party for conducting raid at the said house and arrested them and conveyed message to Sukhdev Singh, SI for their arrest under Section 41.1(1) Cr.P.C and he presented Kalendra against them in the Court of Mrs. Seema Maini, Chief Metropolitan Magistrate, Delhi. He proved cetified copy of kalendra Ex.DA. He further testified that the kalendra is in his handwriting and Sukhdev Singh, SI had come to that Court and had got discharged Balraj CRA NO.D-660-DB of 2009 20 Kaur then and there.
DW3 testified that he cannot identify the accused present in the Court, as also, he cannot tell, on which date, they were produced before him. He had seen application dated 12.06.2006 in the judicial file and he testified that on that date, he was posted as Sub Divisional Magistrate, Nakodar and this application bears his signature and that order is Ex.DB. He was also shown order dated 14.06.2006 Ex.DC, which bears his signature. He was also shown application dated 19.06.2006 and thereon, he had passed order Ex.DD. He was also shown another application dated 18.06.2006 and he had also passed order, thereon, Ex.DE.
Learned counsel for the appellants contended that since the latter were acquitted by the learned trial Court for an offence punishable under Section 364 IPC, yet, it contradicted itself by convicting the appellants for commission of offence punishable under Section 302 IPC. So, he contended that when the appellants were not guilty of abduction of the deceased, they, therefore, could not be held guilty of their murder. So, he contended that possibly someone else than the appellants abducted both the deceased and killed them and their corpses had been foisted upon them for making them liable for their murder.
Learned counsel for the appellants also contended that there is delay in lodging the FIR and the same was not lodged pronto after the occurrence, albeit, the police station being very near to the alleged place of abduction of the deceased. Learned counsel for the appellants also contended that alleged extra judicial confession of CRA NO.D-660-DB of 2009 21 the appellants allegedly suffered by them before PW21 is not believable, as PW1 himself did not produce the appellants before the police. He also contended that this alleged extra judicial confession before PW1 could have some value if he had produced appellants before the police. He also contended that the alleged disclosure statements of the appellants also do not inspire confidence and no reliance could be placed, thereon, by the learned trial Court for holding the appellants guilty of murder of the deceased Mangat Rai Bangar and Sandeep Sehgal.
Learned counsel also contended that the alleged recoveries of datar and money also do not inspire confidence and those have been just fabricated in order to fasten the liability of murder, of Sandeep Sehgal and Mangat Rai upon the appellants. He also contended that the corpses of Mangat Rai and Sandeep Sehgal had been decomposed and purtified and were beyond recognition. Even it is not established on record that these were of Mangat Rai and Sandeep Kumar.
He also contended that the motive of alleged murder of the deceased by the appellants has not been proved and he also contended that possibility cannot be ruled out that Manjit Singh alone committed the murder of deceased Mangat Rai and Sandeep Sehgal and the appellants have been falsely involved in this case.
On the other hand, learned Senior Deputy Advocate General also contended that although the case is based upon circumstantial evidence, but the chain of circumstance has been completed. He also contended that Murders were committed by the CRA NO.D-660-DB of 2009 22 appellants alongwith Manjit Singh (since deceased) and motive was ransom and first the appellants and Manjit Singh kidnapped both the deceased from Nakodar and then they kept them at Jalandhar where they murdered them and later threw their corpses in Himachal Pradesh, which were got recovered by them pursuant to their disclosure statements and the corpses were recovered in the presence of the gazetted officers of the Himachal Pradesh, who had no motive to depose falsely against the appellants.
He also contended that the gold bracelet belonging to Mangat Rai deceased was got recovered by the appellants and that recovery connects them in the commission of murder of Mangat Rai and Sandeep Sehgal. He also contended that the currency notes were recovered from the appellants and the deceased was murdered by the appellants and Manjit Singh in order to grab their money and if the murderers would not have been traced,obviously that money and gold bracelet, which were got recovered by the appellants, during investigation would have been appropriated by them He also contended that death of both of the deceased was homicidal and the medical evidence in this regard inspire confidence. He also contended that the corpses were ofcourse decomposed and putrefied, but these were identified by PW6 Lovedeep and PW12 Lal Chand. So, he contended that the impugned judgment and order do not suffer from any illegality or infirmity which thus should be upheld, and affirmed.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties. The CRA NO.D-660-DB of 2009 23 complainant, who appeared as PW2, learnt about the kidnapping of his father Mangat Rai Bangar on 05.06.2006 at 05:00 p.m. It is no doubt true, that the incident was reported to the police on next day at 06:40 p.m, yet that delay cannot be said to be fatal to the prosecution case. Since the kidnapping of the father of the complainant had taken place, it was more essential for him and his family members to trace the deceased and, therefore, tracing of the deceased was given precedence over the reporting of the matter to the police. Even in the FIR, appellants and their accomplice Manjit Singh (since deceased) have not been named as accused, so this, delay of one day in lodging the FIR cannot cause any doubt in the prosecution version.
If the appellants had been named as accused in the FIR, then, it could be held that the delay has been used for fabricating a false case against the appellants. So, the learned trial Court rightly came to the conclusion that the delay of lodging the FIR in the case is inconsequential to the appellants to whom no benefit of doubt can be given due to this delay in lodging the FIR. There is thus, no illegality or impropriety in this finding of the learned trial Court.
PW1 Chain Singh deposed that on 07.06.2006, at about 04:00 p.m, when he was present in his house, where both the appellants and Manjit Singh (since deceased) came and disclosed to him that on 05.06.2006 they had kidnapped Mangat Rai and his driver Sandeep Sehgal and later killed them and threw their corpses into the gorges at different places in the State of Himachal Pradesh. The evidence of this witness, during cross examination, could not be CRA NO.D-660-DB of 2009 24 shattered. No motive can be ascribed to him to testify falsely in this case. He is Numberdar and former Sarpanch of the village and possibly due to his respectability and close association with the police, choice of the appellants fell upon him to make disclosure of their crime. They were told by PW1 to come on the next day, but they did not turn up and, thereupon, PW1 went to Station House Officer of the police station to make his statement in this regard.
It is candid from his cross examination that deceased were known to him and he had hardly visited the house once or twice. He even denied that both the deceased were god brothers. Now the question arises as to whether the closeness of PW1 with the deceased can be a ground for rejection of his evidence and eventually according benefit of doubt to the appellants, the answer shall be no, as no animus or hostility has been alleged by the appellants against him and that being so, he had no motive to testify falsely in this case.
Extra judicial confession may or may not be a weak evidence. Each case is required to be examined on its own facts as held by the Hon'ble Supreme Court of India in Shivakumar v. State by Inspector of Police 2006(1) RCR(Criminal) 208, wherein, it was further held that it is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. An extra judicial confession, if voluntary and true, and made in a fit state of mind, can be relied upon by the Court. It was further held that the confession will have to be proved like any other fact.
In the judgment (supra), the accused had made extra CRA NO.D-660-DB of 2009 25 judicial confession before village headman. It was held that this confession is admissible. Village headman is not a police officer. While carrying out his duty to inform the police or the Magistrate, in terms of Section 40 Cr.P.C, village headman does not act as a public servant, removable only by or with the sanction of the local government nor he acts in his capacity as a Magistrate. It was held that a village headman is not a village Magistrate and therefore, is not empowered to record confessional statements in terms of Section 162 and 164 Cr.P.C. It was also held that the post of a village Magistrate since 1973 does not exist.
Section 40 of the Cr.P.C, as per the judgment (supra), enjoins a duty upon every officer employed in connection with the affairs of a village and every person residing in a village to communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever, is nearer any information, which he may possess respecting the matters enumerated, therein. Sub section 2(iii) of section 40 of Cr.P.C defines "Officer employed in connection with the affairs of the village" to mean a member of the panchayat of the village and includes the headman and every officer or other person appointed to perform any function connected with the administration of the village.
So, in this view of the matter, PW1, who is the Numberdar of the village was an appropriate person, before whom the appellants could make confessions about the occurrence and it became the bounden duty of the former to report the confessions made by the CRA NO.D-660-DB of 2009 26 latter to the police and he did his duty as per law. He also, faced lengthy cross examination intrepidly and emerged, therefrom, unscathed.
There was no inducement or threat to the appellants when they suffered extra judicial confessions about this occurrence before PW1. They voluntarily came to him and left after suffering the confessions and informed them to come on the next day. They might have been awaited by PW1 and when they did not turn up, no alternate was left with him but to report the matter by suffering statement before the police in this regard. So, both the appellants suffered extra judicial confessions before PW1, which cannot be said to be under any inducement, threat or promise. This must be held to be voluntary in nature and is perfectly admissible under the evidence Act in view of Sidharth etc. etc. v. State of Bihar, 2005(4) RCR (Crl.) 651(SC), wherein, extra judicial confession was made by the appellant before prosecution witness and it was held that the same is perfectly admissible under the law.
In Piara Singh and others v. State of Punjab (1977)4 SCC 452, it was observed by the Hon'ble Supreme Court of India that the learned Sessions Judge regarded extra judicial confession to be a weak type of evidence and, therefore, refused to rely, thereon. It was held that the learned Sessions Judge committed a clear error of law. The law does not require that the evidence of an extra judicial confession should in all cases be corroborated. So, this judgment is fully applicable in this case against the appellants as in the instant case, the extra judicial confession was proved by PW1, Numberdar CRA NO.D-660-DB of 2009 27 of the village, and he had no animus against the appellants. The Hon'ble Supreme Court of India in the aforesaid case held that there was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty from the place of occurrence.
In the present case also, on the basis of extra judicial confession of the appellants, recoveries of the corpses of the deceased were made at the instances of the appellants, who also got recovered belongings of the deceased, as also, the car, wherein, the deceased were transported to the places in the state of Himachal Pradesh, where, their corpses were thrown into the gorges.
In State of Rajasthan v. Raja Ram 2003(4) RCR(Crl.) 238(SC), it was held by the Hon'ble Supreme Court of India that it is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on nature of circumstances, the time when the confession was made and credibility of the witnesses, who speak to such a confession, which can be relied upon and conviction can be founded, thereon, if evidence about confession comes from the mouth of the witnesses, who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused. It was further held that after subjecting the evidence of witness to rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis CRA NO.D-660-DB of 2009 28 of a conviction, if it passes the test of credibility.
Even during cross examination, PW1 was not confronted with his statement recorded by the police during investigation. Even it has not been contended on behalf of the appellants that PW1 made improvements in his statement made by him before the police during investigation while appearing as PW1. It is no doubt true, that the learned trial Court believed the extra judicial confession of the appellants regarding commission of murder of Mangat Rai and Sandeep Sehgal and or having thrown their corpses, but from this, it cannot be said that the trial Court contradicted itself by convicting and sentencing the appellants for commission of offence punishable under Sections 302/301 IPC. After all, the trial Court was to sift the grain from the chaff, in view of non applicability of principle of Falsus in uno, falsus in omnibus in India.
It is only on the basis of extra judicial confession of the appellants and Manjit Singh (since deceased), PW1 informed the police about the place where the corpses of the deceased were thrown in the State of Himachal Pradesh. Extra judicial confession of the appellants becomes believable due to the fact that both the corpses were got recovered by the appellants from the gorges in the State of Himachal Pradesh, where these were thrown by them after killing both the deceased in a house at Jalandhar. Non examination of the neighbours of the house, where the deceased were killed cannot be said to be fatal to the case of prosecution, as the neighbours had occasion to learn about this only, if the appellants had disclosed this fact to someone in that vicinity like their disclosure CRA NO.D-660-DB of 2009 29 before PW1.
According to the testimony of PW16 Sukhdev Singh, on the basis of information, he arrested both the appellants on 09.06.2006 from bus stand of village Nangal Jeeva. At that time, he was accompanied by Harvinder Singh, ASI and other police officials. At that time, PW12 Lal Chand was also joined in the police party and on the identification of the latter, both the appellants were apprehended. The evidence of PW16, during cross examination on this point, could not be shattered and this factum of arrest of the appellants by PW16, on the basis of identification of PW12 cannot be disbelieved.
Even PW16 testified that both the appellants, during interrogation in police custody, suffered disclosure statements and pursuant, thereto, they got recovered corpses of Mangat Rai and Sandeep Sehgal. These proceedings cannot be said to be fabricated one. The testimony of PW16 cannot be repelled on the naïve reason that he is a police officer. It is well settled that evidence of police official is as good as the evidence of any other citizen and same has to be weighed in the same scale like any evidence. Apart from that, the testimony of PW16 Sukhdev Singh, SI on the point of arrest of the appellants and their disclosure statements under Section 27 of the Indian Evidence Act and resultant recoveries of the corpses of Mangat Rai and Sandeep Sehgal has been corroborated by the testimony of PW12 Lal Chand who also was subjected to searching cross examination like PW16, but his evidence, too, could not be shattered during cross examination. The testimonies of PW16 and CRA NO.D-660-DB of 2009 30 PW12 and recovery of the corpses of the deceased have made extra judicial confession, made by them before PW1 credible.
When, the cross examination could not cause any dent in the testimony of PW12 and PW16, the same has to be relied upon and the learned trial Court rightly did so, by concluding that it cannot be held that the disclosure statements Ex.PK and Ex.PR respectively were not made by the appellants.
The corpse of Mangat Rai was got recovered by the appellants in the presence of Parkash Chand Azad, Naib Tehsildar (PW9), who deposed on this line and his testimony has been reproduced in the earlier parts of this judgment, which, during cross examination could not be shattered. He testified that the corpse of Mangat Rai was in a decomposed condition and he (PW9) attested the recovery memo Ex.PH of corpse of Mangat Rai. Even PW12 Lal Chand was also present at the time of recovery of the corpse of Mangat Rai from the gorge in the State of Himachal Pradesh, which was 20 feet deep at the side of water stream and this corpse was identified by PW12, albeit, being decomposed. So, PW9, who is a public servant, cannot be said to have deposed falsely.
The corpse of Sandeep Sehgal was also recovered at the instances of the appellants in the presence of PW9 Manish Chaudhary, Tehsildar of Tehsil Dehra in District Kangra in the State of Himachal Pradesh. He joined the police party on the direction of the Sub Divisional Magistrate and in the area of village Darkata, both the appellants got recovered corpse of Sandeep Sehgal, which was identified by his brother Lovedeep Singh PW6. Evidence of PW19 CRA NO.D-660-DB of 2009 31 could not be shattered during cross examination. Even, the testimony of PW6 could not be shattered during cross examination.
It is no doubt true, that both the corpses were in decomposed condition and were beyond identification, but it is candid from the testimonies of PW6 and PW12 that these corpses were identified by them from their apparels and hair. So, both PW6 and PW12, being the relatives of the deceased were in a position to identify those corpses from their apparels and the hair and their testimony was rightly not disbelieved by the learned trial court who rightly concluded that it stands proved from their testimony that both the appellants, pursuant to their disclosure statements got recovered corpses of Mangat Rai and Sandeep Sehgal from the gorges in the State of Himachal Pradesh. The learned trial Court rightly concluded that these corpses could not be recovered by the police on mere search of that place. These recoveries of the corpses could only be made pursuant to the disclosure statements of the appellants. These recoveries are admissible in evidence under Section 27 of the Indian Evidence Act and those strengthen the credibility of the extra judicial confession made by the appellants before PW1.
PW16 Sukhdev Singh, SI, as already observed, prepared inquest report Ex.PT on the corpse of Sandeep Sehgal and sent the same to the mortuary for autopsy through Ravinder Singh, ASI alongwith his application Ex.PT/1. It has also come in the testimony of PW16 that after the recovery of corpse of Mangat Rai, he prepared inquest report Ex.PU and sent the same to the mortuary CRA NO.D-660-DB of 2009 32 for autopsy through Nirmal Singh, HC alongwith the application Ex.PU/1. This testimony of PW16, during cross examination, could not be shattered and that must be believed and the learned trial Court rightly did so. PW7 Deepak Walia conducted autopsy on the corpses of Mangat Rai and Sandeep Sehgal and found injuries, thereon, as have been mentioned in the earlier parts of this judgment. His testimony, during cross examination, could not be shattered. Even, at the time of arguments, learned counsel for the appellants failed to point out any defect in the testimony of PW7, to the effect that the death of Mangat Rai and Sandeep Sehgal occurred as a result of injuries caused to them with sharp edged and sharp pointed weapons. There is nothing on the record to hold that the injuries on the deceased were self suffered or self inflicted in nature. So, death of both the deceased was homicidal having been caused by appellants.
There is, thus, no illegality or impropriety in the impugned judgment of conviction and order of sentence dated 28.01.2009, which are hereby, upheld and affirmed.
Resultantly, appeal being devoid of any merit, ought to be and is, hereby, dismissed.
( S.P.BANGARH ) ( S.S.SARON)
JUDGE JUDGE
November 03, 2012
mamta