Punjab-Haryana High Court
Surender And Another vs State Of Haryana on 4 March, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-484-DB of 2009
Date of decision : 04.03.2013
Surender and another
.... Appellants
VERSUS
State of Haryana
.... Respondent
CORAM : HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE INDERJIT SINGH
***
Present : Mr.K.D.S.Hooda, Advocate,
for the appellants.
Mr.Sandeep Vermani, Addl. Advocate General, Haryana, for the respondent-State.
*** INDERJIT SINGH, J The instant appeal is directed against the judgment of conviction dated 01.05.2009 and order of sentence dated 02.05.2009, passed by Addl. Sessions Judge, Hisar, vide which appellants Surender and Bhal Singh alias Sonu have been held guilty for the commission of offence punishable under Sections 302, 201 and 387 read with Section 34 IPC and accordingly they have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of two months each under Section 302 read with Section 34 IPC; rigorous imprisonment Criminal Appeal No.D-484-DB of 2009 [2] for three years and to pay a fine of Rs.2500/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one month each under Section 201 read with Section 34 IPC and rigorous imprisonment for three years and to pay a fine of Rs.2500/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one month each under Section 387 read with Section 34 IPC. All the sentences were ordered to run concurrently.
Brief facts of the prosecution case are that on 22.06.2005, an application was given by Onkar Chaudhary, which was addressed to SHO, Police Station Civil Line, Hisar, in which it is stated that on 21.06.2005, at about 3:15 O'clock, applicant's son Sahil, aged about 16 years had gone to the shop of Suresh, Mechanic, situated near CMC. Hisar, for getting repaired Maruti car. In the meantime, a telephonic call came from someone on Sahil's mobile phone No.9416216688, which he was having with him. Upon this call, Sahil left the car with Suresh, Mechanic and went away. After about half an hour, applicant's wife Santosh received a telephonic call at her domestic telephone from Sahil through his own phone, who while weeping told that he had been kidnapped and soon thereafter some unknown person took his phone and asked to pay Rs.10,00,000/- otherwise it would not be good. Applicant further stated that those criminals made 7-8 calls from their phone No.98120-35611 on his phone No.98132-77499 and demanded Criminal Appeal No.D-484-DB of 2009 [3] Rs.10,00,000/- as ransom and also abused in filthy language. At this, applicant alongwith his brother-in-law (wife's brother) Ved Parkash was going to Delhi by his car but from village Sampla, they came back to Hisar and inquired from Suresh, Mechanic, who told him that Sahil had given him a slip on which phone Nos.9416216688 and 9812035611 were written and he (Sahil), while going, had asked to call him on those numbers if any necessity arises. It is further stated in the application that till that time they were searching his son but no clue could be found. On the basis of this application, FIR No.235 dated 22.06.2005 was registered under Sections 364-A and 387 IPC at police Station Civil Line, Hisar.
On the same day, another FIR No.425 dated 22.06.2005 was registered under Sections 302 and 201 IPC at Police Station Sadar, Hisar, on the basis of statement (Ex.P17) of one Amir Singh, which was recorded by Sub Inspector Bhupinder Singh, Police Station Sadar, Hisar at 8:35 a.m. on 22.06.2005. In his statement, Amir Singh stated that he is resident of village Gorchhi, Hisar and used to do agriculture work. His field is at about one kilometer from village Gorchhi on Panihar Check road. He had sown Jawar seed in his field and for its guard, he used to sleep in the field during the night. On 21.06.2005, he started from his house for his field, as usual, and reached there at about 8:30 p.m. and saw that big cotton sticks heap was burning. By going nearby, he saw dead body of a human being, burning in the said cotton sticks. The complainant Criminal Appeal No.D-484-DB of 2009 [4] became perplexed. He returned to his house and narrated that fact to his father Birsal Singh. His father, alongwith complainant, Chattar Singh, Sarpanch, Juglal, Lambardar, Nathu Ram and Ram Sarup, Chowkidar reached the field and saw that whole of the cotton sticks had been burnt and the dead body of unknown person had been burning. They, by putting water over the fire, extinguished it. Dead body was half burnt, which was of a human being and it seemed to be of a man. Unknown assailants, after killing the unknown person, have thrown the dead body in the heap of their cotton sticks and have set on fire for screening away the dead body. Complainant further stated that inquires were made in villages Gorchhi, Panihar, Sarsna, Rawalwas etc. for identification of the dead body, but no clue had been found out. After leaving Nathu Ram, Chowkidar near the dead body for its guarding, when the complainant was going to police station to report the matter, the police party met him on the way and his statement was recorded. Ruqa was sent to the police station on the basis of which FIR was registered. Sub Inspector Bhoop Singh, who was posted at Police Station Sadar, Hisar on 22.06.2005, alongwith other police officials reached the spot and prepared rough site plan Ex.P20 of the place of occurrence. He conducted the proceedings under Section 174 Cr.P.C. and prepared inquest report Ex.P21. Thereafter, dead body was sent for postmortem examination through Constable Jagdish Rai. Sub Inspector Bhoop Singh also recorded the statements of witnesses.
Criminal Appeal No.D-484-DB of 2009 [5] On 22.06.2005, Sub Inspector Ramesh Kumar, posted at Police Station Civil Line, Hisar, who partly investigated the case,went to the place of occurrence and prepared the rough site plan Ex.P66. Statement of Suresh Kumar was recorded, who produced the chit on which two mobile phone numbers were written. The said chit was taken into police possession vide recovery memo Ex.P3. On 23.06.2005, Inspector Om Parkash, SHO, Police Station Civil Line, Hisar, took the investigation of this case from Sub Inspector Ramesh Kumar. During investigation, Inspector Om Parkash recorded the statement of Sachin. On 20.07.2005, he alongwith other police officials went to Patiala House, Delhi Court and moved an application there for joining both the accused in the investigation. After seeking permission, Inspector Om Parkash joined both the accused in the investigation and obtained their transit remand for producing them before concerned Illaqa Magistrate. On 21.07.2005, he produced both the accused before the Illaqa Magistrate and obtained their police remand. During interrogation, both the accused suffered disclosure statements Ex.P35 and Ex.P36 regarding the murder of Sahil and regarding parking of the vehicle in the premises of Civil Hospital, Hisar, which was used in the offence. In pursuance of their disclosure statements, the accused pointed out the place from where Sahil was kidnapped and where his dead body was burnt etc. vide pointing out memos Ex.P37 to Ex.P39. On 22.07.2005, both accused Surender and Bhal Singh were again interrogated and they Criminal Appeal No.D-484-DB of 2009 [6] suffered disclosure statements Ex.P41 and Ex.P42 regarding preparing of fake driving licence. On 23.07.2005, both the accused were again interrogated and during interrogation, accused Bhal Singh suffered disclosure statement Ex.P25 regarding concealing of a stereo of car and one string etc., which were kept in a plastic bag and the same were concealed in the house of Surender. Accused Surender also suffered disclosure statement Ex.P26 regarding concealing of aforesaid articles in his house. Both the accused also pointed out the place of parking of the car and demarcation memo Ex.P29 regarding the same was prepared. The car was already taken into possession by CIA Staff under Section 102 Cr.P.C. Investigating Officer went there and took into possession car bearing registration No.HR-12-C-9469 vide recovery memo Ex.P5. On 26.07.2005, Investigating Officer visited Delhi and took into possession photocopies of FIR Ex.P44, recovery memo Ex.P45 of photographs, recovery memo Ex.P46 of mobile phone and sim card, seizure memo Ex.P47 of driving licence, disclosure statement Ex.P48 of accused Bhal Singh, FIR No.103 of 2005 dated 04.07.2005 Ex.P49, recovery memo Ex.P50 of key and sim card, recovery memo Ex.P51 of mobile phone, seizure memo Ex.P52 of key, SIM card, driving licence and gold rings etc. Statements of witnesses were recorded. After necessary investigation, challan against the accused was presented before the Court.
On presentation of challan, copies of challan and other Criminal Appeal No.D-484-DB of 2009 [7] documents were supplied to accused under Section 207 Cr.P.C. Finding a prima facie case against the accused, they were charge- sheeted for the offences punishable under Sections 302 read with Section 34, 201 and 387 read with Section 34 IPC to which they pleaded not guilty and claimed trial.
The prosecution, in support of its case, examined PW1 Sachin, who has not supported the prosecution version and turned hostile. PW2 Suresh Kumar mainly deposed that about one year ago, Sahil son of Onkar Chaudhary came to his workshop for repairing of his car. At about 3/4:00 p.m., he left the car in his workshop and went away. Sahil gave a slip to him whereupon a telephone number was mentioned. He asked him to give a ring on that number after repair of the car. After sometime, Bittu, person of Onkar Chaudhary, came to him and he (PW2) gave that slip to him. He did not give that slip to the police. This witness did not support the prosecution case further and was declared hostile. PW3 EASI Ishwar Singh mainly deposed that on 05.07.2005, ASI Dushyant Kumar handed over a car bearing registration No.HR-12-C-9469 to him which was taken into police possession. He further deposed that on 23.07.2005, he handed over that car alongwith registration certificate to Inspector Om Parkash, SHO, Police Station Civil Line, Hisar. PW4 ASI Karnail Singh mainly deposed that on 05.07.2005, he was posted as Finger Print Expert. On that day, he was called by ASI Dushyant Kumar. Thereafter, he went to Government Hospital, Criminal Appeal No.D-484-DB of 2009 [8] Hisar. A Maruti car bearing registration No.HR-12-C-9469 was lying parked in the parking of the said hospital. After examining the car, he gave his report Ex.P7. After applying suitable graphite powder, he developed the chance prints on several parts of the car. PW5 Atam Parkash, Contractor of parking of Government Hospital, Hisar, mainly deposed that in the year 2005, he was having contract of parking of vehicles at General Hospital, Hisar. A Maruti van remained standing in the said parking for the whole night. He went to his house at 5:00 p.m. and when he came back to the parking spot next morning at about 7:00 a.m., a police official was standing near that vehicle. This witness (PW5) also did not support the prosecution version and was declared hostile. In cross-examination, he stated that he told the police that Maruti car was parked and not Maruti van. PW6 Head Constable Sakattar Singh, PW7 Constable Om Parkash, PW8 Head Constable Jagdish Parshad and PW9 Constable Krishan Kumar are the formal witnesses, who tendered into evidence their affidavits Ex.P11 to Ex.P14 respectively. PW10 Subhash Chander, Draftsman, mainly deposed regarding preparing of scaled site plans Ex.P15 and Ex.P16. PW11 Sub Inspector Bhoop Singh, who was posted at Police Station Sadar, Hisar on 22.06.2005, mainly deposed regarding recording the statement of Amir Singh and conducting the inquest proceedings etc. PW12 Amir Singh mainly deposed as per prosecution version. PW13 Sub Inspector Sajjan Singh is a formal witness, who tendered into evidence his affidavit Ex.P23. PW14 Criminal Appeal No.D-484-DB of 2009 [9] Inspector Azad Singh mainly deposed regarding recording the statements of Subhash Chander, Draftsman, ASI Karnail Singh, Finger Print Expert, Constable Om Parkash, MHC Sakattar Singh and Constable Shiv Charan under Sections 161 Cr.P.C. He further deposed regarding preparing of report under Section 173 Cr.P.C. PW15 Onkar Chaudhary, complainant, father of deceased Sahil, deposed as per prosecution version. PW16 Subhash Gaba, Sub Divisional Officer (Civil), mainly deposed that on 06.07.2005 he was called by the police near Sewak Sabha Hospital, Hisar regarding taking of blood sample of Onkar Chaudhary and Santosh by Dr.J.R.Verma, Pathological, Government Hospital, Hisar. Dr.J.R.Verma took four blood samples each of Onkar Chaudhary and Santosh. All the blood samples were converted into parcels and he (PW16) affixed his seal on it and the same were taken into police possession vide memo Ex.P32. PW17 ASI Nafe Singh (Retd.) is a formal witness, who tendered into evidence his affidavit Ex.P33. PW18 ASI Miya Singh, photographer, mainly deposed regarding clicking of photographs of chance print developed by ASI Karnail Singh. PW19 ASI Dushyant Kumar, mainly deposed regarding taking into police possession Maruti car bearing registration No.HR-12- C9469 from the parking vide recovery memo Ex.P34 under Section 102 Cr.P.C. He further deposed that Atam Parkash, Contractor, told him that two young boys had left the said car in the parking without taking receipt. PW20 ASI Raj Kumar mainly deposed regarding Criminal Appeal No.D-484-DB of 2009 [10] joining of investigation of this case with Inspector Om Parkash. He further deposed regarding recording of disclosure statements of accused Surender and Bhal Singh and preparing of demarcation memos Ex.P37 to Ex.P39. PW21 Head Constable Yudhvir Singh also deposed regarding the investigation of this case. He deposed that on 04.07.2005, he was posted in Special Cell at Lodhi Colony, Delhi. On that day, in case FIR No.102 of 2005, he arrested accused Surender Bishnoi. Similarly, in case FIR No.103 of 2005, he arrested accused Bhal Singh. Both the accused suffered disclosure statements and in para No.8 of their disclosure statements, they disclosed the facts regarding this case. On the basis of disclosure statements of both the accused, photograph Ex.P43 of Sahil was recovered from the purse of Surender Bishnoi accused and the same was taken into police possession vide recovery memo Ex.P45. Two mobile phones were recovered from the possession of accused Surender Bishnoi which were also taken into police possession vide recovery memo Ex.P46. Two mobile phones were also recovered from the possession of Bhal Singh and the same were taken into police possession vide recovery memo Ex.P51. Out of these mobile phones, one mobile phone No.9416216688 belongs to Sahil (deceased) as told by Bhal Singh. PW22 Inspector Partap Singh deposed regarding partly investigation conducted by him in this case and regarding recording of statements of MMHC Jagdish Chander and ASI Sajjan Kumar under Section 161 Cr.P.C. PW23 Dr.Jagdish Criminal Appeal No.D-484-DB of 2009 [11] Rai Verma mainly deposed that on 06.07.2005 he was posted as Medical Officer, General Hospital, Hisar. On that day, on the application moved by the police, which was marked to him by the Civil Surgeon Hisar, he alongwith Subhash Chander, Sub Divisional Magistrate and other police officials, went to the house of Onkar Chaudhary which was situated near Sewak Sabha Hospital and took four samples each of Onkar Chaudhary and Santosh Devi for DNA examination. PW24 Parveen Kumar mainly deposed that he is owner of car No.HR-12-C-9469 which was stolen from Rohtak in the month of June, 2005. Lateron, he came to know that his car was parked in Police Station Sadar, Hisar and he got it released on superdari. In cross-examination, he deposed that his car was stolen on 13.06.2005 and he got registered an FIR at Rohtak. Police told him about the recovery of his car in the month of July, 2005. PW25 Constable Shiv Karan mainly deposed regarding delivery of special reports to Ilaqa Magistrate etc. PW26 Dr. Luv Kumar Sharma mainly deposed that on 22.06.2005, Police station Sadar, Hisar moved an application Ex.P64 alongwith a badly burnt body of which only fragmentary remains were present. Identification of the body could not be done, so the same was referred to PGIMS, Rohtak for the opinion of Forensic Expert and for taking DNA sample. He mainly deposed regarding conducting of postmortem examination on the said burnt dead body. As per his opinion, the dead body was of young adult male individual. The cause of death was kept pending Criminal Appeal No.D-484-DB of 2009 [12] subject to result of chemical analysis of viscera. Head injury was ante-mortem in nature. The probable time that elapsed between the death and postmortem was between three to five days volunteered it could be dated 18.06.2005. He also stated that he had sent clavicle bone for DNA analysis and as per DNA report Ex.P67, the DNA profile of the source of Ex.A (bones said to be the clavicle of the deceased) matches with DNA profile of the source of Ex.B and Ex.C (blood samples of Smt.Santosh Devi and Sh.Onkar Chaudhary). The DNA test performed on the exhibits provided is sufficient to conclude that the source of Ex.A (bones) is from the biological offspring of the source of Ex.B and Ex.C. PW27 Inspector Ramesh Kumar is the Investigating Officer. He mainly deposed regarding partly investigation conducted by him in this case. PW28 DSP Om Parkash is also the Investigating officer in this case. He mainly deposed regarding part investigation conducted by him in this case. Public Prosecutor, after tendering into evidence Forensic Science Laboratory report Ex.P70, closed the prosecution evidence.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and confronted with the evidence of prosecution. The accused denied the correctness of the evidence and pleaded themselves as innocent. They also deposed that they have been falsely implicated on wrong information against them. Police has collected false and inadmissible evidence. They have no concern with the alleged crime.
Criminal Appeal No.D-484-DB of 2009 [13] No evidence was led in defence.
The trial Court, after appreciation of evidence, convicted and sentenced both the appellants-accused as stated above.
At the time of arguments, learned counsel for the appellants contended that it is a case of circumstantial evidence and prosecution has failed to connect the accused with the crime. There is no cogent evidence on the record to prove the guilt of the accused in this case. A reasonable doubt exists in the prosecution version. Accused are innocent and have been falsely implicated in this case. Learned counsel for the appellants further contended that the disclosure statements made by the accused at Delhi are inadmissible in evidence being confession before the police. As per the statement of Dr. Luv Kumar Sharma (PW26), the age of the person (burnt dead body) was 25 to 40 years whereas as per prosecution case, Sahil (deceased) was 16 years old. Learned counsel for the appellants next contended that no call details have been brought on record to connect the accused with the crime. Therefore, the present appeal should be accepted and the appellants should be acquitted accordingly.
On the other hand, learned Addl. Advocate General, Haryana, contended that the case of the prosecution has been duly proved on the basis of disclosure statements made by the accused, during their interrogation in the case registered at Delhi. They were nominated in this case after getting the report of DNA test and till Criminal Appeal No.D-484-DB of 2009 [14] then nobody was knowing whether Sahil was murdered or not. Learned Addl. Advocate General, Haryana further contended that there is sufficient evidence on record to connect the accused with the crime. The mere difference of age, as stated by doctor, at the most can be treated as the opinion of the doctor. The DNA test is a perfect science and its report cannot be doubted. Learned Addl. Advocate General, Haryana further contended that the mobile phone belonging to Sahil (deceased), who was kidnapped, has been recovered from the accused vide recovery memo Ex.P51 which has been duly proved by PW21 Head Constable Yudhvir Singh. Therefore, the appeal having no merit should be dismissed.
We have heard learned counsel for the appellants and learned Addl. Advocate General, Haryana and with their assistance, we have gone through the evidence on record minutely and carefully.
From the evidence on record, we find that it is a case of circumstantial evidence and chain of circumstances should be complete and there should not be any missing links. It is settled law that in the case of circumstantial evidence if all the facts and circumstances put together, it should form a complete chain pointing towards the guilt of accused only and none else. From the evidence on record, we find cogent evidence on record, produced by the prosecution, to connect the accused with the crime. The contentions of learned counsel for the appellants that appellants are innocent and have been falsely implicated in this case have no merit. As per Criminal Appeal No.D-484-DB of 2009 [15] prosecution evidence, Sahil (deceased), minor son of Onkar Chaudhary (PW15), was kidnapped on 21.06.2005 when he went to get his car repaired. PW2 Suresh Kumar though has not supported the prosecution version in toto but he supported this version that Sahil son of Onkar Chaudhary came to his workshop for repair of his car and at about 3/4:00 p.m. he left the car in his workshop and went away. PW2 Suresh Kumar has also stated that Sahil gave a slip to him whereupon a telephone number was mentioned and he asked him to give a ring on this number after the car was repaired. In cross-examination by the Public Prosecutor, he has stated that he has seen the slip Ex.P1 whereupon two telephone numbers are mentioned. In cross-examination, he admitted his signatures on the recovery memo Ex.P3 of said slip. He also deposed that his signatures on recovery memo Ex.P3 of slip were obtained at his shop. He further deposed in cross-examination that mobile phone numbers on slip Ex.P1 were mentioned by Sahil. On the slip Ex.P1, two mobile phone numbers have been mentioned, one is 9416216688 which is of Sahil (deceased) and other is 9812035611, which is written to be of Surender. We have seen this slip Ex.P1 very carefully. The name and numbers are appeared to be written with the same ink, in the same flow and at the same time. This slip Ex.P1 has been duly proved by PW2 Suresh Kumar and the same was taken into police possession vide recovery memo Ex.P3 which bears the signatures of PW2 Suresh Kumar. Even in the application given Criminal Appeal No.D-484-DB of 2009 [16] by Onkar Chaudhary (PW15) on 22.06.2005 which was addressed to SHO, Police Station, Civil Line, Hisar, there is mention of the fact that when the applicant-complainant inquired from Suresh Kumar, Mechanic (PW2), he told him that Sahil had given him a slip on which mobile phone numbers 9812035611 and 9416216688 were written and asked him to call him on those numbers if any necessity arises. This fact proves two things firstly, at the time of kidnapping, Sahil (deceased) was having this mobile phone No.9416216688. Again this fact is further supported and corroborated by the averments that Sahil rang up from this telephone number and told his mother while weeping that he had been kidnapped. Therefore, this is the first circumstance that in Ex.P1, name of Surender has been mentioned alongwith mobile phone number which means that Surender had called him on telephone. The second circumstance connecting the accused with the crime is that accused were arrested on 04.07.2005 at Delhi in case FIR No.102 and 103 of 2005. At that time, the said mobile phone number i.e. 9416216688, which belonged to Sahil, was recovered from the accused and taken into police possession vide recovery memo Ex.P51. We have seen the original recovery memo Ex.P51 and this mobile phone number has been mentioned in it. There is no explanation how this mobile phone came into possession of the accused. In no way, it can be held that this mobile phone has been planted upon the accused by Delhi police because at the time of arrest of these accused at Delhi, it was not in the notice Criminal Appeal No.D-484-DB of 2009 [17] of anybody that Sahil has been murdered. The next circumstance which connects the accused with the crime is that the appellants- accused have been nominated in the present case only on the basis of their disclosure statements, recorded during interrogation, before Delhi police. Admittedly, those disclosure statements are inadmissible in evidence and on the basis of same, accused cannot be convicted. However, to connect the chain of circumstances as to how these accused are nominated in this case, this fact can be looked into. On the basis of these disclosure statements, the blood samples of Onkar Chaudhary and Santosh Devi, parents of deceased Sahil, were taken in the presence of Subhash Chander, Sub Divisional Officer (Civil) and the said samples and bones of Sahil (deceased) were sent for DNA test. As per Dr. Luv Kumar Sharma (PW26), the DNA report shows that the bone of Sahil (deceased) is matched with the blood samples of his parents and he was held as offspring of Santosh and Onkar Chaudhary. In other words, from the interrogation of the accused, this fact came to the notice that Sahil's body was burnt in the cotton sticks in the field of Amir Singh in village Gorchhi. Furthermore, when the appellants-accused were interrogated, they demarcated the places from where they kidnapped Sahil and also where they burnt his dead body. These demarcation memos are admissible in evidence as these facts have been discovered in consequence of information received from a person. Both these accused also demarcated the place where the stolen car Criminal Appeal No.D-484-DB of 2009 [18] was parked by them. All these facts point towards the guilt of the accused only and none else.
As regarding the discrepancy regarding the age, we find that there is direct evidence/deposition of Onkar Chaudhary that Sahil was of 16 years old and if the doctor has given the age between 25 to 40 years, the statement of Onkar Chaudhary will be believed and the opinion of the doctor is not binding and this fact also in no way creates any reasonable doubt in the prosecution version. From the evidence on record, we find that if finger print report has not been proved by the prosecution, it in no way creates any doubt as there is other cogent evidence on record to prove the guilt of the accused. Chain of circumstances is complete, pointing towards the guilt of accused only and none else.
Therefore, from the evidence on record, we find that the prosecution has duly proved its case by leading cogent evidence. As such, the judgment of conviction and order of sentence passed against the appellants are upheld and the appeal, having no merit, is dismissed.
(JASBIR SINGH) (INDERJIT SINGH)
JUDGE JUDGE
04.03.2013
mamta