Punjab-Haryana High Court
Vinod And Another vs State Of Haryana on 12 December, 2008
Author: Sabina
Bench: S.S.Saron, Sabina
Criminal Appeal No.241-DB of 2005 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.241-DB of 2005
Date of decision:12.12.2008
Vinod and another
......Appellants
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MR.JUSTICE S.S.SARON
HON'BLE MRS. JUSTICE SABINA
Present: Mr. Ramesh Sharma, Advocate,
for the appellants.
Mr.J.S.Toor, Addl. A.G.Haryana.
****
JUDGMENT
SABINA, J.
Vinod and Prem Singh have filed this appeal challenging their conviction and sentence under Section 302, 392/397 IPC vide impugned judgment and order dated 29.1.2005 and 31.1.2005 respectively passed by Additional Sessions Judge, Fast Track Court, Gurgaon.
Prosecution story in brief is that complainant Ghaghad Ram Dayal was serving as Security Supervisor on behalf of the DLF in Ridgewood apartments. On 5.4.2002 complainant was on duty Criminal Appeal No.241-DB of 2005 2 and at about 4.30 p.m. he was informed by Mrs. Harbux Bajwa resident of Flat No.E-33 Ridgewood Apartments and Mr. S.K.Mishra, Lakashmi Security Supervisor that Mrs.Bajwa had gone to deliver the keys of Almirah to Flat No.H-44 but nobody responded to the call bells. Noise of a weeping child was coming from inside the flat which was unlocked. Complainant accompanied them to the said flat. He pressed the call bell a number of times but nobody responded. However, the noise of a weeping child could be heard. Complainant along with the above mentioned informants entered the flat and found that television was on and dead body of a lady, who was naked from abdomen till her feet was lying on the bed. A knife was found thrust in her stomach. There were also two other wounds of knife on her stomach. Some blood had oozed out from her mouth. Iron wire was found tied around her neck and her both hands were also tied with a wire. The child aged about 4/5 months was weeping nearby. The house hold articles were lying in order. On inquiry, he found that the name of the deceased was Kairolin Yadav wife of Naveen Yadav.
On the basis of the statement of the complainant formal FIR No.138 dated 5.4.2002 was registered by the police of police Station DLF Gurgaon.
Inspector Sajjan Kumar went to the spot and got the place of occurrence photographed. He took in possession one pajami and a towel from the spot. He also took in possession two receipts regarding issuance of compact discs and two cable linkers Identity cards. He prepared the inquest report with regard to dead body of Criminal Appeal No.241-DB of 2005 3 deceased Kairolin Yadav and sent it for postmortem examination.
Dr. Nawal Kishore conducted the postmortem examination on the dead body of Kairolin Yadav on 6.4.2002 at and found as under:-
"It was a dead body of stout female wearing read coloured T-shirt. No corresponding cut mark. No blood stained on the T-shirt. There were ligature marks present all around the neck. 2 to 3 millimeter wide at the level of thyroid cartridge. A metal wire was tied with a knot on left side of the neck. Mark was double on left and single on right. Front of neck also showed double mark. This mark was corresponding to the wire, found in her neck. Face was congested, neck and upper part of neck was also congested. There were petechial haemorrhage in the conjuctiva. Bleeding both nostrils was present. Stains were present over right side of face upto trigus. Rigour mortis was present all over with early passing out stage. Post mortem staining were present over back of chest abdomen, both thighs. Both hands were also tied at the wrists by a separate wire. There was no external mark of injury over private parts. Contusions were seen over fact. Both maleour emences and left side of the face near angle of mouth. On dissection there were subcutaneous echhymosis were present. I found the following injuries on the dead body:-Criminal Appeal No.241-DB of 2005 4
1. A vertically placed stab wound of 5 cm below umbilicus in the midline. It was 2.5 cm in length and about 13 cm in depth. Knife was in its position. Seen directed forwards with a sharp edged facing towards face. Knife was recovered and sealed after preparing a diagram.
Knife was blood stained. It was single edged with plastic black handle.
2. An incised wound was present 6 cm from umbilicus on left side. Vertically placed it was of size 2 cm in length, skin deep with gaping.
3. Stab wound over right side of abdomen 5 cm from umbilicus obliquely placed with sharp edged with single edged and 10 cm abdomen."
In his opinion the death was due to asphyxia caused by strangulation. Time between injuries and death was instantaneous/ immediate and between death and postmortem was within 24 to 48 hours.
On 13.4.2002, Navneet Sethi and Pardeep Mangla resident of DLF, Gurgaon produced accused Vinod and Prem Singh before Inspector Sajjan Kumar. Accused were formally arrested on 14.4.2002.
Accused Vinod in the presence of Naveen Yadav and SI Sukhbir Singh suffered a disclosure statement that he had kept concealed jewellery items stolen by him and offered to get the same recovered. On the basis of his disclosure statement he got Criminal Appeal No.241-DB of 2005 5 recovered one gold chain with locket, gold ring (challa) and Rs.140/- from the disclosed place. Initially before SI Sajjan Kumar, appellant Vinod in his disclosure statement stated that mobile set stolen by them had been sold to a bus conductor. However, he again suffered a disclosure statement before SI Naresh Kumar on 18.4.2002 that he had kept concealed the mobile phone and offered to get the same recovered. On the basis of his disclosure statement the mobile phone was got recovered by appellant Vinod from the disclosed place, which was taken in possession. On the same day SI Sajjan Kumar interrogated Prem Singh in the presence of SI Sukhbir Singh and PW Naveen Yadav. On the basis of the disclosure statement accused got recovered one ladies watch, two gold ear rings, one gold ring (challa) from the disclosed place. He further disclosed that amount of Rs.140/- which had come to his share had been spent by him.
On 14.4.2002 Dr.V.K.Thapar medico legally examined accused Vinod and gave his opinion that there was nothing to suggest that Vinod could not perform intercourse and there was no fresh mark of injury on his person. On the same day he also medico legally examined accused Prem Singh and found following injuries on his person:-
1. Healed scar on right side of face 1.3 x 0.3 cm. 2 cm of right eye, almost vertically.
2. 1.3 x 0.2 cm healed scar on the right side of cheek/obliquely placed.
There was nothing to suggest that Prem Singh could not Criminal Appeal No.241-DB of 2005 6 perform intercourse. The possibility of injuries on his person with nail could not be ruled out. The injuries were simple and caused by blunt weapon and were of more than 7days' duration.
After completion of investigation and necessary formalities accused were sent up for trial. Charge against the accused was framed under Section 376 (2) (g), 302, 392 read with Section 397 IPC on 27.8.2002. Accused did not plead guilty and claimed trial.
Prosecution in order to prove its case examined 22 witnesses at the trial. After close of prosecution evidence accused, when examined under Section 313 Cr.P.C. prayed that they were innocent and had been falsely involved in this case. They did not examine any witness in their defence despite the opportunity having been granted.
Learned trial Judge believed the prosecution version and convicted the accused under Section 302 IPC and sentenced them to undergo imprisonment for life and a fine of Rs.2,000/-. They were also convicted under Section 392 read with Section 397 IPC and were sentenced to undergo rigorous imprisonment for seven years and a fine of Rs.1,000/-. Both the sentences were ordered to run concurrently. Accused were acquitted of the charge framed against them under Section 376 (2) (g) IPC. Hence, the present appeal.
In appeal it has been argued that the appellants had been involved in this case on the basis of suspicion. Many persons had visited the flat in question. Identity cards of the appellants alleged to Criminal Appeal No.241-DB of 2005 7 have been recovered from the spot had not been shown in the site plan prepared by the Investigating Officer. No register maintained at the gate was produced in evidence to prove the visit of the appellants to the flat in question. Nobody had seen the appellants entering the flat in question. Rajiv Mishra (PW-14) had stated that register maintained by them regarding visitors to the flat had been taken in possession by the police, whereas, the Investigating Officer had stated that no such register was taken in possession. No effort was made by the Investigating Agency to interrogate the alleged husband of the deceased i.e. Naveen Yadav or his wife Vandna Yadav as they could have a motive to commit murder of the deceased due to illicit relationship of Naveen Yadav with the deceased. No reliance could be placed on the alleged extra judicial confession suffered by the appellants before their employer. Investigation in this case was not conducted in a fair manner. No finger prints were lifted from the spot. In fact, initially no physical clue could be lifted from the spot with regard to involvement of any person in the murder of the deceased. It was also not believable that the appellants after committing murder at about 2/2.30 p.m. would have gone to borrow money from their employer at 5/6 p.m. or would have taken tea at a tea stall after the occurrence. Learned counsel has lastly argued that at the most it was a case of retention of stolen property by the appellants.
Learned State counsel, on the other hand, has argued Criminal Appeal No.241-DB of 2005 8 that Naveen Yadav had no reason to commit murder of the deceased as he was having a good relationship with her. Appellants had absconded from the spot which led to the presumption that they were guilty of the offence. Stolen property had been recovered from the appellants and their Identity cards were also recovered from the spot. Since the appellants were cable operators they might have been allowed to enter the apartment without signing the register. The fact that the infant was weeping at the spot showed that it was a case of recent murder. Wires used by the cable operators were tools for committing the murder which also strengthened the prosecution case. It was natural for the appellants to have suffered an extra judicial confession before their employer and hence, the same has been rightly believed by the trial Judge. Accused Prem Singh had also suffered injuries and in view of the opinion of the doctor, the same might have been inflicted on his person by the deceased while she tried to save/defend herself. The hands of the deceased had been tied and she had been strangulated. This showed that there was involvement of more than one person in the crime.
Present case rests on circumstantial evidence. It has been held in Vasa Chandrasekhar Rao v. Ponna Satyanarayana, 2000(3) Recent Criminal Reports 96 (SC) that in a case of circumstantial evidence, in order to establish the guilt of the accused, it was necessary to prove the circumstances fully and it was further held as under:-
Criminal Appeal No.241-DB of 2005 9
(i) "Circumstances should be conclusive in nature.
(ii) All facts so established, should be consistent only with hypothesis of the guilt and inconsistent with innocence.
(iii) Circumstances should exclude the possibility of guilt of any person other than the accused.
(iv) In order to justify an inference of guilt, circumstances must be incompatible with innocence of accused.
(v) Cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offence beyond reasonable doubt.
(vi) Where accused on being asked, offers no explanation or explanation is found to be false, then that itself forms an additional link in chain of circumstances."
The prosecution case is to be examined in this perspective as to whether a complete chain has been formed to establish the guilt of the accused or not.
The present case was set in motion on the basis of the statement of complainant (PW-1), Security Supervisor in Ridgewood Apartment DLF, Gurgaon. The complainant went to Apartment No.H- 44 at the instance of Smt.Harbux Bajwa and Sh. Mishra and dead body of deceased Kairolin Yadav was discovered. It was brought to the notice of the police and investigation of the case started. Smt.Harbux Bajwa (PW-13) and Rajiv Mishra (PW-14) have duly corroborated the statement of the complainant in this regard. Criminal Appeal No.241-DB of 2005 10
In order to establish the presence of the appellants at the spot prosecution has examined some witnesses. Narender (PW-11) has deposed that on 5.4.2002 at about 12.30 noon, appellants had taken tea at his shop. He knew the appellants and their names were Vinod and Prem Singh. In his cross-examination, he deposed that the appellants were his regular customers. Although the said witness has not supported the prosecution case with regard to the visit of the appellants to Ridgewood Apartments but he establishes the presence of the appellants in the area in question at the relevant time.
Muntu (PW-15) has deposed that on 5.4.2002 he was on duty w.e.f. 8.00 a.m. to 4.00 p.m. as a security guard in Ridgewood Apartments Phase IV, Gurgaon. He remained on duty in front of the lift and staircase. At about 11.15 a.m. a person had come and informed him that he wanted to go to flat No.H-44 along with purchun articles. Thereafter, appellants Vinod and Prem Singh, who were working as cable operators came to him at about 2.00 p.m. and they also wanted to go to flat No.H-44 on the pretext that they had to repair the cable in that flat. They came back at about 2.30 p.m. and went towards the tea stall of Narender. Thereafter, a man and woman came with a slip and said that they wanted to go to flat No H-
44. He allowed them to go as they told him that they were called by the occupants of the flat for a job. They came back within two minutes from the flat and informed him that none had opened the door of the flat despite their ringing the call bell for sufficiently long Criminal Appeal No.241-DB of 2005 11 time. At about 3.00 p.m. a person came with cassettes and wanted to go to Flat No.H-44 on the pretext that the cassettes had to be delivered to the lady occupant of the flat. He allowed the said person to go but he returned back after 5/10 minutes and informed him that none had opened the door despite the call bell rung by him for a sufficiently long time. He (PW-15) went to his house after 4.00 p.m. Thus, from the statement of this witness it is evident that the appellants had returned from the flat after half an hour. Had the appellants not committed the murder of the deceased, or if it had been committed earlier by the visitor who had gone to the said flat at 11.15 p.m., then they would have informed the security guard (PW-
15) that the deceased was lying dead in her flat. Although PW-15 had not seen the appellants entering the flat but from his statement, it is evident that he had allowed them to go to Flat No.H-44. He may not have taken signatures of the appellants in the register maintained for visitors for visiting the flats because they were working as cable operators/technicians and might have been regular visitors to the apartments. So far as the man and woman, who had visited the flat after the visit of the appellants, are concerned they had returned back within two minutes as the door was not opened despite their ringing the bell. Similarly the person who had gone to the flat in question at 3.00 p.m. with the cassettes had also returned back within 5-10 minutes as nobody had opened the door despite his ringing the call bell. Vikas (PW-16) has deposed that the person sent by him with the cassettes had returned back and told him that the Criminal Appeal No.241-DB of 2005 12 door of the flat of the deceased was found closed and none had responded there. In these circumstances, we do not find any force in the argument raised by learned counsel for the appellants that many persons had visited the flat on the day of occurrence and, as such, the appellants had been roped in merely on the basis of suspicion. Since the appellants had returned down stairs after half an hour it leads to the inference that they had entered the flat in question.
As per Security guard (PW-15) they were maintaining a register with regard to the entry of visitors. PW-14, who was also serving as a security supervisor in the Ridgewood Apartments deposed in his cross-examination that the police had taken the register in possession during investigation. The Investigating Officer (PW-19), on the other hand, in his cross-examination deposed that he had not taken the register in possession. It appears that no entry was made with regard to the visit of the appellants in the register as they were working as cable operators in the area and had gone to the flat on the pretext of repair of cable wires. The register might have been inspected by the Investigating Officer but since it was not signed by the appellants with regard to their visit, it might not have been formally taken in possession. Hence, we do not find any force in the contention raised by learned counsel for the appellants that because register was not taken in possession, the presence of the appellants at the spot was not established.
The next material evidence led by the prosecution to establish the chain of circumstance is the extra judicial confession Criminal Appeal No.241-DB of 2005 13 suffered by the appellants before their employer Navneet Sethi (PW-
17). The said witness has categorically deposed that on 13.4.2002 both the appellants had met him in his office and had confessed before him that they had committed the rape and murder of an Anglo Indian girl in flat No.H-44, Ridgewood Apartments, DLF Phase IV, Gurgaon. They had further confessed before him that they had stolen some gold articles, cash and a mobile phone. He also deposed that he had issued identity cards to the appellants, who were under his employment and he proved the said identity cards Ex.PL/1 of appellant Vinod and Ex.PL/2 of appellant Prem Singh. Police had met him on 6.4.2002 and he had told the police that the appellants were his employees. Vinod had taken leave on 5.4.2002 on the plea that he was suffering from abdomen pain and had also taken Rs.1,000/- from him. Prem Singh had been deputed to leave Vinod at his residence as desired by Vinod. They had left at about 5/6 p.m. on 5.4.2002 and had, thereafter, returned back on 13.4.2002.
Navneet Sethi (PW-17) is none other than the employer of the appellants and the extra judicial confession suffered by the appellants before the said witness cannot be doubted. It was normal for the appellants to have reposed confidence in their employer and confess their guilt. Moreover, he had no reason to falsely involve them in this case.
The next chain of circumstance against the appellants proved by the prosecution is the recovery of identity cards of the appellants from the spot. Although the Investigating Officer has not Criminal Appeal No.241-DB of 2005 14 shown the place of recovery of the identity cards in the site plan but the factum of recovery of identity cards was mentioned by him in the zimni prepared by him. The Investigating Officer has also explained in his cross-examination that at the relevant time, he did not show the table from where the identity cards were recovered in the site plan because at that time he was not aware that the same would relate to this case or not but he had mentioned the said fact in the zimni. We have also gone through the zimni prepared by the Investigating Officer available on record, wherein the said fact is mentioned. Moreover, the identity cards of the appellants were shown to Navneet Sethi (PW-17) on 6.4.2002 and he had identified the same to be of the appellants. The appellants in this case were arrested on 13.4.2002, whereas, the identity cards were taken in possession on 5.4.2002 and were also shown to the employer of the appellants on 6.4.2002 before the arrest of the accused. Hence, it cannot be said that the identity cards were prepared after the arrest of the appellants and planted against the accused. The possibility that the identity cards were later created to involve the appellants falsely in this case is ruled out.
The next chain of circumstance against the appellants proved by the prosecution is the recovery of articles from the appellants on the basis of their disclosure statements. On the basis of disclosure statement suffered by appellant Vinod, one gold chain with locket, gold ring (challa), mobile phone and Rs.140/- were recovered from the disclosed place at his instance. Similarly on the Criminal Appeal No.241-DB of 2005 15 basis of the disclosure statement suffered by appellant Prem Singh, one ladies watch, two gold ear rings and one gold ring (challa) were recovered from the disclosed place. The said appellant had spent Rs.140/- coming to his charge. The articles recovered on the basis of the statements of the appellants were duly identified by Naveen Yadav (PW-18). The receipt of the said mobile phone was produced by PW Naveen Yadav on 18.4.2002 before the recovery could be effected.
We do not find any force in the contention raised by learned counsel for the appellants that motive to commit murder of the deceased was with Naveen Yadav or his wife Vandna Yadav as Naveen Yadav was not legally married to the deceased. It is evident from the testimony of Naveen Yadav that he has tried to avoid to answer the question as to whether he was married to the deceased or not. Investigating Officer Sajjan Kumar (PW-19) deposed that it was correct that Naveen Yadav has concealed the factum of his marriage with the deceased from his family members.
As per Exhibit D-1 Vandana Yadav had filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 against Naveen Pal Singh. A perusal of the same reveals that marriage between the parties was solemnized on 19.2.1999 at Gurgaon according to Hindu rites . Thus, it is evident that Naveen Yadav, who was married to Vandana Yadav, was also maintaining the deceased as his wife. Apparently, due to his marriage with Vandana Yadav, Naveen Yadav tried to hide his relationship with the Criminal Appeal No.241-DB of 2005 16 deceased when he was examined in the witness box. However, there is nothing on record to suggest that his relationship with the deceased had gone sour and due to this reason he had any motive to commit murder of the deceased. Moreover, there is nothing on record to suggest that Naveen Yadav had visited the flat in question on the alleged day of occurrence.
In case Naveen Yadav wanted to get rid of his relationship with the deceased, he would have done away with the child also and not just the deceased. The fact that Naveen Yadav was tried in a case under Section 307/34 IPC also fails to advance the argument raised by learned counsel for the appellants that the murder might have been committed by Naveen Yadav because in the said case, Naveen Yadav was acquitted by the Additional Sessions Judge, New Delhi on 12.2.1998. The fact that wife of Naveen Yadav had filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights also fails to advance the argument of the learned counsel for the appellants that the murder might have been committed by Vandana or Naveen Yadav because the said case was filed in the year 2004 much after the murder of deceased Kairolin Yadav. The possibility that relations between Vandana and Naveen Yadav became sour after the occurrence cannot be ruled out as Vandana Yadav must have come to know about the relationship of her husband with the deceased. The said petition was, however, dismissed as withdrawn on 12.5.2004 as is evident from Exhibit D-3.
The fact that the appellants after committing murder had Criminal Appeal No.241-DB of 2005 17 gone to their employer at 5/6 p.m. does not lead to the inference that they were innocent. Apparently, the appellants were confident that they had not left any clue with regard to the murder committed by them and due to this reason no finger prints could be lifted from the spot. However, the appellants at that time might not have realized that they had left their identity cards at the spot.
Another chain of circumstance established by the prosecution is the injuries suffered by appellant Prem Singh. As per doctor V.K.Thapar, two injuries were found on the person of Prem Singh when he was examined on 14.4.2002. The doctor also opined that the possibility of the injuries having been caused by nail could not be ruled out. It was also opined that the injuries were of more than seven days' duration. The occurrence in this case had taken place on 5.4.2002 . Thus, the possibility that appellant Prem Singh had suffered injuries with nails of the deceased while she might have defended herself cannot be ruled out.
Appellants were working as cable operator/technicians. Hands of the deceased were tied with the wire and she had been strangulated with the help of a wire. It appears that the appellants must have gone to the flat and finding the deceased alone, they must have tried to molest her and when she resisted, they strangulated her with the help of wire after tying her hands. As per the medical evidence death of the deceased was due to strangulation.
Learned counsel for the appellants in support of his arguments has placed reliance on the case of Rahman v. The state Criminal Appeal No.241-DB of 2005 18 of U.P. AIR 1972 SC 110 wherein it was held that the circumstances forming evidence must be conclusively established and even when so established, they must form such a complete chain that it is not only consistent with the guilt but is inconsistent with any reasonable hypothesis of innocence. Absconding by itself is not conclusive either of guilt or of guilty conscience.
In the present case it is not abscondence of the accused in itself, which has let to their guilt but a complete chain of events have been proved by the prosecution, which leads to the inference of the guilt of the accused. Hence, the judgment relied upon by learned counsel for the appellants fails to advance the case of the appellants.
Learned counsel for the appellants has next placed reliance on the decision of the Apex Court in the case of Thankayyan v. State of Kerala 1994 SCC (Criminal) 1751. We have gone through the said judgment but the same fails to advance the case of the appellants as in the present case guilt of the accused is not based merely on the basis of recovery effected as per their disclosure statements, rather a complete chain of circumstances has been established against the accused by the prosecution, which leads to the inference of only guilt of the accused.
We have gone through the entire evidence on record and are of the opinion that the prosecution has been successful in proving a complete chain of circumstances which leads to the conclusion of guilt of the accused. Learned trial Judge had rightly Criminal Appeal No.241-DB of 2005 19 convicted and sentenced the appellants under Section 302, 392/397 IPC. The impugned judgment of conviction and order of sentence do not call for any interference.
Accordingly, the present appeal is dismissed.
(SABINA) JUDGE (S.S.SARON) JUDGE December 12 , 2008 anita