Punjab-Haryana High Court
Jasbir Alias Dhillu vs State Of Haryana on 14 August, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.D-496-DB of 2008
.....
Date of decision:14.8.2012
Jasbir alias Dhillu
...Appellant
v.
State of Haryana
...Respondent
....
Coram: Hon'ble Mr. Justice Satish Kumar Mittal
Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. Akshay Kumar Goel, Advocate, Amicus Curiae for the
appellant.
Mr. Vinod S. Bhardwaj, Additional Advocate General, Haryana
for the respondent-State.
Mr. Ashwani Bhardwaj, Advocate for the complainant.
......
(2) Criminal Appeal No.D-500-DB of 2008
.....
Sonu
...Appellant
v.
State of Haryana
...Respondent
....
Present: Mr. Rajbir Sehrawat, Advocate for the appellant.
Mr. Vinod S. Bhardwaj, Additional Advocate General, Haryana
for the respondent-State.
Mr. Ashwani Bhardwaj, Advocate for the complainant.
......
Inderjit Singh, J.
This judgment will dispose of Criminal Appeal No.D-496-DB of 2008 filed by Jasbir alias Dhillu and Criminal Appeal No.D-500-DB of Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [2] 2008 filed by Sonu as these arise out of the same judgment and order dated 17.4.2008/24.4.2008 passed by the learned Additional Sessions Judge, Jhajjar whereby the appellants in both the appeals have been held guilty for the offences punishable under Sections 364-A, 302 read with Section 34 of the Indian Penal Code (`IPC' - for short) and they have been sentenced to undergo rigorous imprisonment for life; besides, pay a fine of `2,500/- each for the offence under Section 364-A read with Section 34 IPC. They have also been sentenced to undergo rigorous imprisonment for life; besides, pay a fine of `2,500/- each for the offence under Section 302 read with Section 34 IPC. In default of payment of fine, they have been ordered to undergo imprisonment for one year. The sentences of imprisonment have, however, been ordered to run concurrently.
The brief facts of the prosecution case are that on 20.8.2006 at about 7.00 p.m. wife of Rakesh received a telephone call from unknown person from STD telephone No.320915 on their telephone No.240471 and the caller was asking to talk with Rinku son of Rakesh. At that time, Rinku was away, therefore, caller was asked to ring after some time. At about 7.20 p.m. again from telephone No.240999 received a telephonic call which was received by Rinku who was aged about 14 years and was studying in 7th class. The caller asked complainant's son to come out of the house. Then Rinku left the house with that boy and not returned back. A search was made by the family members along with villagers. On the next day at 12.15 p.m., Rakesh Kumar son of Ram Sahai father of Rinku went to the Police Post, Badli and presented application, on the basis of which DDR No.10 Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [3] dated 21.8.2006 was recorded. In this application it was also stated by Rakesh that he has been intimated that Rinku had gone on a motorcycle with unknown boys. When Rinku was not traced, then on 23.8.2006 Rohtas uncle of Rinku gave an application to the In-charge, Police Post, Badli stating that on 20.8.2006 in the evening two boys called his nephew Rinku on telephone and took him on a motorcycle with them. They reported about his missing to the Police and since then they were searching for him. On that day, they came to know that his nephew Rinku had been taken by his (Rohtas's) real sister's son Sonu son of Ram Dhari and his friend Sombir alias Sonu son of Chandan on motorcycle No.HR-13-A-7671. It was also stated in this application that as per conspiracy, Amit and Kala son of Dilbag met them at Village Doboda in a car. They had kidnapped Rinku with an intent to raise a demand for ransom. There may be some more companions. They had suspicion that they had confined and murdered Rinku. On the basis of complaint, `Ruqa' was sent and FIR was registered under Section 364-A read with Section 34 IPC.
On 23.8.2006, ASI Satbir Singh along with other Police officials was present at turning point of Badli, Gurgaon. Thereafter, the Police party headed by ASI Satbir Singh along with Rohtas-complainant and Risal Singh, Sarpanch went to Village Kharman, where accused-appellant Sonu was apprehended from his house and brought him to Police Post, Dulhera. On interrogation, he made disclosure statement regarding his involvement and other accused-appellant Jasbir alias Dhillu and disclosed that he could demarcate the place and get the dead body recovered. The Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [4] disclosure statement was recorded which was signed by appellant-Sonu. Thereafter, Sonu led the Police party in pursuance of his disclosure statement and got recovered the dead body which was lying in a well. The dead body was taken out from the well which was identified by Rohtas and Risal Singh PWs. One bottle of water was also taken out from the well and a sealed parcel was prepared. He got the dead body photographed while it was lying in the well and also after taking it out from the well. The Investigating Officer conducted the inquest proceedings and prepared inquest report and recorded the statements of Rohtas and Risal Singh. The dead body was sent to Government Hospital, Bahadurgarh for post-mortem from where it was referred to PGIMS, Rohtak for post-mortem.
Dr. P.K. Paliwal, Professor and Head, Department of Forensic and Medicine, PGI MS, Rohtak (PW-12) conducted the post-mortem on the dead body of Rinku aged about 13 years on 24.8.2006 and found that there were number of bruises of size 0.5 to 0.3 cm on both sides of angle of mouth and nostrils with infiltration of blood. Skull and scalp were normal and brain was liquefied. Thorax wall described. Ribs and cartileges were normal, pleura was decomposed. Larynx and trachea were congested, hyoid was intact. Both sides, Lungs were congested. Post-mortem bully was present over the surface and heart was empty from both sides, soft and flabby. The doctor opined that cause of death in this case, in his opinion, was smothering. However, bone was preserved for diatom test. The doctor also gave the opinion that there was 3 to 4 days duration between the death and post-mortem. After receiving the FSL report, diatoms were not present Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [5] either in water or in bones. The exact cause of death was smothering in this case. In cross-examination, the doctor also stated that diatom test is conducted to ascertain whether the death was on account of drowning or not. The smothering is closing of mouth and nostril i.e. close of air passages.
On 27.8.2006, the Investigating Officer arrested appellant- Dhillu alias Jasbir and during interrogation, he suffered disclosure statement in presence of Rakesh and HC Randhir Singh regarding his involvement in the murder of Rinku and he disclosed that the motorcycle used by him in the commission of offence had been kept concealed by him near the abandoned brick kiln in the area of Village Daboda Khurd and he could get the same recovered and also demarcate the place where the dead body was thrown after committing murder of Rinku in the abandoned well. Then in pursuance of his disclosure statement, he got recovered motorcycle bearing registration No.HR-13-A-7671 which was taken into Police possession vide recovery memo. The statements of the witnesses were recorded. Site plan of the place of recovery of motorcycle was also prepared. Scaled site plan from Halqa Patwari was got prepared.
After completion of investigation, the challan was filed in the Court. On presentation of challan, the trial Court finding prima facie charges against both the accused-appellants framed charges for the offences under Sections 364-A and 302 read with Section 34 IPC. The accused pleaded not guilty to above charges and claimed trial.
To prove its case, the prosecution examined PW-1 Giani Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [6] resident of Bhupiana Road, Badli, STD Booth, who mainly deposed that on 20.8.2006 at about 7.30 p.m. when he was sitting on his STD Booth, two boys came on Rajdoot motorcycle, who made a telephone call from his STD Booth telephone No.240999 to telephone No.240471 and paid him two rupees. He identified appellants-Sonu and Jasbir present in the Court. PW- 2 Sharmila wife of Rakesh and mother of deceased also deposed regarding receiving first telephone call at 7.00 p.m. on 20.8.2006 from telephone No.320915 on their telephone No.240471. She also deposed that after 7-8 minutes, Rinku came and she then went to her `Ghair' and when she came Rinku was not found present in the house. Then she told about the telephone call to her husband Rakesh Kumar. PW-3 Rakesh Kumar father of the deceased deposed as per prosecution version. He stated that on 23.8.2006, his sister's son Sonu got recovered the dead body of his son Rinku from a well situated in field in the area of Village Daboda. He also deposed regarding disclosure statement made by Jasbir alias Dhillu on 27.8.2006 regarding concealing of motorcycle used in the crime and then in pursuance of his disclosure statement recovery of the motorcycle was made. This witness also deposed regarding the telephone calls and verified the numbers from where these calls originated which were found of STD Booths in Village Bhupiana and Badli. PW-4 Constable Jagbir Singh is a formal witness, who delivered the special report to Illaqa Magistrate. PW-5 Jasbir Singh, Patwari, Halqa Daboda Kalan mainly deposed regarding preparing of site plan. PW-6 HC Surender Kumar, Photographer mainly deposed regarding taking of photographs. PW-7 Constable Raj Kumar is a Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [7] formal witness, who deposed regarding tendering his affidavit in evidence. PW-8 HC Rajesh Kumar also mainly deposed regarding getting conducted the post-mortem on the dead body of Rinku. PW-9 Rohtas is the complainant. He deposed as per prosecution version. He also deposed regarding the disclosure statement made by appellant-Sonu and then recovery of the dead body from the abandoned well. PW-10 Kamlesh Rani Gill, Senior Scientific Officer, FSL Madhuban, Karnal deposed regarding FSL report. PW-11 Devender mainly deposed that at about 7.30 p.m. on 20.8.2006, he was waiting for a vehicle at Badli-Gurgaon turn, Village Badli for going to Ambala in connection with Police recruitment. In the meantime, he saw one motorcycle of black colour coming from the side of his village which was driven by Sonu-appellant present in the Court on that day. Rinku his cousin brother and Dhillu son of Raj Singh were the pillion riders. Rinku was sitting in between Sonu and Dhillu. They went towards Bahadurgarh Bhupiana road. He knew Dhillu-accused as he used to visit two-three times in their house along with Sonu-accused. Thereafter, he left for Ambala and returned on 23.8.2006. Then he came to know that dead body of his cousin Rinku had been found in a well in the field of Village Mahandipur Daboda. He stated that he is sure that Rinku had been murdered by Sonu and Dhillu-accused for some monetary gain. On 23.8.2006, the Police recorded his statement. PW-12 Dr. P.K. Paliwal mainly deposed regarding the post-mortem conducted on the dead body of Rinku. PW-13 Risal Singh, Sarpanch of the village deposed regarding disclosure statement made by Sonu and then recovery of the dead body and Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [8] regarding the identification of the dead body. PW-14 HC Naresh Kumar is a formal witness, who tendered in evidence his affidavit (Ex.P.38). PW-15 Tatbir Singh, ASI also mainly deposed regarding registration of the FIR on the basis of `Ruqa'. PW-16 Satbir Singh, ASI is the Investigating Officer of the case and mainly deposed regarding the investigation of the case.
At the close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and were confronted with the evidence of the prosecution. They denied the correctness of the evidence and pleaded themselves as innocent. Accused-Sonu deposed that he has been falsely implicated in this case due to previous enmity as deceased was his maternal brother and his mother had asked the father of deceased to get the ancestral land partitioned, but he had refused and had warned previously that if she insist for partition of ancestral land then she and her family members would face the consequences. Accused-Jasbir alias Dhillu deposed that he is innocent and had been falsely implicated in this case. Sombir alias Sonu son of Chandan, was named as accused in this case and he was the registered owner of motorcycle bearing registration No.HR-13A-7671. Said Sombir and his motorcycle were wanted in this case. He was having enmity with Sombir alias Sonu on the pretext of election of Chhattar Singh Rathi, and Sombir manipulated the false accusation of his with the help of Chhattar Singh Rathi, President Haryana Wrestling Sangh, resident of Kharman. Said Chhattar Singh Rathi had contested the election from Badli Legislative Assembly and was the looser candidate but is very politically influential person now/those days and he was implicated falsely in this case.
Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [9] His parents ran from pillar to post before the authorities to prove his innocence but despite assurance nothing needful was done.
From the evidence on record, the learned trial Court convicted and sentenced the accused-appellants for the offences as mentioned above.
We have heard learned counsel for the parties and with their assistance have gone through the evidence on record carefully.
At the time of arguments, the learned counsel for the appellants argued that the recovery of the dead body in pursuance of disclosure statement has been fabricated by the Investigating Officer. No independent witness was joined at the time of recovery. He next contended that PWs are interested witnesses and cannot be relied upon. Learned counsel for the appellants next contended that the appellants have been falsely implicated as the mother of Sonu was demanding share from the property. Learned counsel for the appellants next contended that in view of the physical condition of the dead body, doctor's opinion creates reasonable doubt. They next contended that last seen evidence cannot be believed as there is unexplained delay of three days in recording the statement of this witness. They also contended that there was a gap of three days in the last seen and the recovery of dead body which shows that there is no proximity of time. Learned counsel for the appellants further argued that except the present appellants, names of other accused were given, who were later on not challaned and the name of accused Jasbir was not given in the FIR which shows reasonable doubt exists against accused-appellant Jasbir alias Dhillu. They also argued that the offence under Section 364-A IPC is not made out Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [10] as there is no evidence that any ransom was demanded.
On the other hand, learned Additional Advocate General, Haryana argued that the case of the prosecution has been duly proved. There is last seen evidence. Dead body was got recovered by appellant- Sonu and the motorcycle used in the crime was got recovered by appellant- Jasbir. However, both these accused have been identified by PW-1 Giani from whose STD Booth they made the second telephone call to Rinku. He also argued that there is no reason or ground as to why the witnesses will depose falsely against their sister's son.
As regards the first contention of the learned counsel for the appellants, we find that the PWs have deposed regarding the disclosure statement made by Sonu regarding the dead body of Rinku thrown into the well. As per the PWs in pursuance of the disclosure statement the dead body was got recovered by appellant-Sonu. PW-3 Rakesh Kumar deposed that on 23.8.2006 his sister's son Sonu got recovered the dead body of his son Rinku from the well situated in field in the area of Village Daboda. He also deposed regarding the disclosure statement made by appellant-Jasbir alias Dhillu who got recovered motorcycle No.HR-13A-7671 from the deserted brick kiln in the area of Village Daboda Khurd. PW-9 Rohtas also deposed that accused Sonu made disclosure statement regarding the dead body of Rinku and then in pursuance of his disclosure statement he took the Police party to the abandoned well and there dead body of Rinku was lying facing downward. PW-13 Risal Singh also deposed regarding disclosure statement made by Sonu and then recovery of the dead body of Rinku in Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [11] pursuance of his disclosure statement.
We have perused the cross-examination of these PWs. They have consistently deposed regarding the prosecution version. There is nothing pointed out from their cross-examination from which it can be held that these disclosure statements are fabricated. It is in the evidence of these PWs that the well was abandoned well in the field and at a distance from the road. The well was surrounded by bushes and was having no `Chabutra' (platform). As per doctor's opinion, there was gap of three-four days in between the death and post-mortem. Post-mortem was conducted on 24.8.2006. Rinku was kidnapped on 20.8.2006 in the evening which means that Rinku was murdered on 20th itself. Therefore, when the dead body was thrown in the well there was nobody to see this occurrence. Otherwise also, as the well was abandoned and at a distance of `Abadi' of the village and away from the road surrounded by bushes etc., therefore, it looks natural that nobody noticed the dead body in the well. It was got recovered only by appellant-Sonu in pursuance of his disclosure statement. Otherwise also, Rakesh PW father of the deceased and Rohtas uncle of the deceased have deposed consistently regarding the prosecution version. PW-3 Rakesh Kumar and PW-9 Rohtas are deposing against their real sister's son Sonu and there is no motive or enmity proved on the record to depose falsely against Sonu or to falsely implicate him in this case. The defence version that his mother was demanding share from the property etc. is not proved. Even no suggestion was given by the counsel for Sonu-appellant to PW-9 regarding this defence version. The suggestion was given by the other co-
Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [12] accused Jasbir, who has no concern with the share in the property by mother of co-accused Sonu. Even mother of accused-Sonu, namely, Kamla has not appeared as defence witness to depose that the complainant has motive to falsely implicate the appellant etc. or to depose that she was demanding share in the property from her brothers etc. Therefore, defence version in the present case cannot be relied upon.
The contention of the learned counsel for the appellants that the witnesses are interested witnesses and, therefore, unreliable has no force. As per the opinion of the doctor the death was not due to drowning. Rather, it was by way of smothering. It is rather a strong circumstance against the appellants as to why PWs Rakesh and Rohtas would depose against their real sister's son in such a serious case. The question of independent witness in the present case does not arise. Similarly, the argument that at the time of recovery, no independent witness was joined has also no force specially when the PWs have consistently deposed regarding the recovery of dead body in pursuance of disclosure statement by Sonu and there is no motive or enmity to falsely implicate the accused especially of the Police officials.
As regards the next contention of the learned counsel for the appellants that there was difference in the physical condition of the dead body and the doctor's opinion, we find that firstly there is no cross- examination on this point to seek clarification from the doctor who was the expert witness. Secondly, from the opinion of the doctor it is clear that the death of Rinku was not due to drowning nor it is the case of the accused that he committed suicide or had fallen accidentally in the well. The doctor has Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [13] given the exact opinion after getting the report of diatom test that the cause of death in the present case is smothering which means by closing the passage of air by blocking mouth and nostril etc. Therefore, this argument also has no merit.
As regards the next argument that last seen evidence cannot be relied upon there being gap of three days when the deceased and the accused were seen together and the recovery of dead body on 23.8.2006. This argument has also no merit as the doctor has already given the opinion that there were three or four days' gap between the death and post-mortem. Therefore, from the opinion of the doctor it looks that Rinku was murdered on 20.8.2006 itself. The witness had seen the deceased sitting on pillion of the motorcycle in between appellants Sonu and Jasbir alias Dhillu at about 7.30 p.m. Therefore, in no way, it can be held that there was no proximity of time in the last seen by the witness and the death of Rinku. Rather, from the evidence on record, we find that Rinku was seen along with the accused immediately after his kidnapping and after that he was murdered.
As regards the contention of the learned counsel for the appellants that name of Jasbir is not found in the FIR, it is well settled that FIR is not an encyclopedia of the facts concerning the crime. Merely, because of minutest details of occurrence were not mentioned in the FIR the same cannot make the prosecution case doubtful. It is not necessary that all details should be stated in the FIR. It is sufficient if a broad picture is presented and the FIR contains the broad features. For lodging FIR, in a criminal case and more particularly in a murder case, the stress must be on Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [14] prompt lodging of the FIR. The purpose of FIR is to put the Investigating Agency into motion when it appears that some cognizable offence has been committed. A perusal of application (Ex.P.26) given by Rohtas, on the basis of which FIR was registered, we find that it is no where stated by the complainant-Rohtas that Amit, Kala or Sombir were seen by him kidnapping Rinku. He had simply suspicion against them. Therefore, if the name of Jasbir was not mentioned in Ex.P.26, it will in no way leave to inference that he is innocent.
As regards the last contention of the counsel for the appellants that the prosecution has failed to prove the demand of ransom, we agree with the learned counsel for the appellants. There is no evidence on the record to show that any ransom was demanded at any time. Even PW-3 Rakesh Kumar father of the deceased in his cross-examination has stated that no ransom call was received by them regarding release of his son Rinku. Therefore, from the evidence on record, offence under Section 364- A IPC is not proved. Rather, from the evidence on record, we find that the offence under Section 364 IPC, which is a lesser offence, has been proved. Section 364 IPC deals with the offence where person is kidnapped or abducted in order that such person may be murdered. In the present case also Rinku was kidnapped and was murdered by the appellants. Therefore, the prosecution has duly proved that the offence in this case falls under Section 364 IPC instead of Section 364-A IPC.
From the above discussed evidence on record, we find that first of all PW-1 Giani had identified both accused Sonu and Jasbir who had Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [15] come to his STD Booth at Village Badli and gave a call on telephone No.240471 at about 7.30 p.m. on 20.8.2006. This version regarding receiving of telephone call from telephone No.240999 on their telephone No.240471 at about 7.20 p.m. on 20.8.2006 has been mentioned in the DDR No.10 of 21.8.2006 which means that this version has come at the earliest and this DDR duly supports and corroborates the statement of PW-1 Giani. Secondly, PW-11 Devender has seen both these accused Sonu and Jasbir taking away Rinku on motorcycle on 20.8.2006 at about 7.30 p.m. A perusal of statement of PW-11 Devender shows that there is nothing in his statement which makes his statement unreliable. He is a truthful and reliable witness. He has explained that he had gone for appearing in interview and had come back on 23.8.2006 when he came to know regarding the death of Rinku and his statement was also recorded on that very day i.e. on 23.8.2006.
Next we find that the recovery of dead body in pursuance of disclosure statement by Sonu is another circumstance showing the involvement of the accused in the commission of the crime. Again, we find that on 23.8.2006 when the FIR was lodged it was stated that Rinku was kidnapped on motorcycle No.HR-13A-7671. At that time, name of Jasbir accused was not there. Accused Jasbir got recovered this motorcycle which was used in the commission of the crime as per his disclosure statement. This circumstance also shows the involvement of the accused in the present crime. The oral statements of PW-2 Sharmila-mother of the deceased, PW-3 Rakesh Kumar-father of the deceased, PW-9 Rohtas-uncle of the deceased Cr. A. No.D-496-DB of 2008 and Cr. Appeal No.D-500-DB of 2008 [16] and PW-13 Risal Singh, Sarpanch of the village duly support and corroborate the prosecution version. There is nothing on record as to why they would depose falsely against the appellants-accused especially when Sonu is their close relative. As already discussed, defence version is not believable even mother of accused Sonu, namely, Kamla has not appeared as a defence witness to prove the defence version. The oral statements of the PWs are duly supported by medical evidence i.e. the opinion of the doctor that death was not due to drowning but cause of death is smothering. Further the version of the prosecution is duly supported by the Investigating Officer and other Police officials. The Police officials have no reason or ground as to why they would depose against Sonu.
Therefore, from the above, we find that appellants-Sonu and Jasbir have committed the murder of Rinku after kidnapping him and they are liable to be held guilty under Sections 302 and 364 read with 34 IPC instead of under Sections 302 and 364-A IPC read with Section 34 IPC. They are sentenced to undergo rigorous imprisonment for life; besides, pay a fine of `2,500/- each for the offence under Section 364 read with Section 34 IPC. However, the sentence imposed under other section shall remain same.
With the above modification, we find no merit in both the appeals and the same are dismissed.
(Satish Kumar Mittal) (Inderjit Singh)
Judge Judge
August 14, 2012.
*hsp*