Delhi High Court
Gian Singh & Anr. vs The State on 21 December, 2009
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved On : 15.12.2009
% Date of decision : 21.12.2009
+ CRL. A. No.43 of 1996
GIAN SINGH & ANR. ...APPELLANTS
Through: Ms.Meena Chaudhary
Sharma, Advocate
for appellant No.2.
Appellant No.1
died on 18.05.2002.
Versus
THE STATE ...RESPONDENT
Through: Mr. Sunil Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
SANJAY KISHAN KAUL,J.
1. Ms.Rani, appellant no.2, used to reside in a cluster of jhuggis known as Nangla Machi located near the Old Railway Bridge on the banks of river Yamuna. PW- 9/Chandrawati was also living in the same cluster. CRL. A. No.43/1996 Page 1 of 12
2. It is the case of the prosecution that appellant No.2/Rani had an affair with appellant No.1 which was known to PW- 9/Chandrawati. PW-9/Chandrawati had confided about this fact to her husband PW-8/Devi Ram who in turn informed the father of appellant No.2/Rani Thakur Om Prakash, which resulted in great annoyance to both the appellants.
3. On 10.05.1990, PW-1/Kumari Sanju, who was aged about eight years then, brought Harkesh, aged about a few months, the son of PW-9/Chandrawati, from her mother to play around with him in the cluster of jhuggis. Appellant no.2/Rani knew PW-1/Kumari Sanju and approached her with a request to accompany her to the jungle as appellant no.2/Rani wanted to ease herself. PW-1/Kumari Sanju accordingly accompanied appellant no.2/Rani and carried the child Harkesh with her. Appellant no.2/Rani was carrying a can of water which spilled on the way and she asked PW-1/Kumari Sanju to go and fetch some more water. It is also the case of the prosecution that on PW- 1/Kumari Sanju's refusal, appellant no.2/Rani slapped her and snatched the child from her and told her to go and fetch some water. However when PW-1/Kumari Sanju came back with the water, she found that appellant no.2/Rani was missing with the child. A frantic search produced no result and thus the parents of Harkesh, PW- 9/Chandrawati and PW-8/Devi Ram were informed about the same.
CRL. A. No.43/1996 Page 2 of 12
4. The aforesaid incident resulted in lodging of a report by PW-8/Devi Ram indicating that he suspected the hand of both Gian Singh/appellant no.1 and Rani/appellant no.2 in the kidnapping of his child due to prior acrimony. On the complaint of PW-8/Devi Ram a case under Section 363 of IPC was registered and assigned to SI Bachan Singh (PW-
22) for investigation. Neither appellant no.1/Gian Singh nor appellant no.2/Rani nor the child could be located. Search was carried out of the room in occupation of appellant no.1/Gian Singh from where some photographs were recovered. It is only after about a month and a half, on receipt of some information, that appellant no.1/Gian Singh and appellant no.2/Rani were arrested on 25.06.1990 from Ring Road near bus stand Sarai Kale Khan. On their interrogation, it transpired that Harkesh had been taken away by them and he was dead. The dead body of Harkesh was got recovered on the pointing out of appellant no.1/Gian Singh from a nala in village of District Gurgaon. The body of Harkesh was highly decomposed and the skeleton was identified by PW- 8/Devi Ram, father of Harkesh.
5. Pursuant to recovery of the dead body, provisions of Sections 120-B, 302, 364 and 201 r/w Section 120-B of IPC were added.
6. On completion of investigation, challan was filed. On the charges being framed under sections 120-B, 302, 364 and 201 r/w Section 120-B of IPC, both the appellants pleaded CRL. A. No.43/1996 Page 3 of 12 not guilty and claimed trial. On the trial being completed, in terms of the impugned judgment dated 02.02.1996, both the appellants were convicted for offences punishable under Sections 120-B of IPC, 364 r/w Section 120-B of IPC, 302 r/w Section 120-B of IPC and 201 r/w Section 120-B of IPC and sentenced vide Order on Sentence of the even date.
7. The appellants during pendency of the appeal were granted bail. Appellant no.1/Gian Singh passed away on 18.05.2002 and the appeal qua appellant no.1/Gian Singh abated and now the appeal survives only in respect of appellant no.2/Rani.
8. The prosecution has examined 25 witnesses in the present case. The testimony of the principal witnesses is discussed hereinafter.
9. PW-22/SI Bachan Singh was posted at PS Tilak Marg at the relevant time and was on patrolling duty when around 8 P.M. he was informed by PW-8/Devi Ram about his missing child and his statement (ExPW12/A) was recorded on which endorsement (ExPW22-A) was made and the same was sent for registration of FIR No.157/1990 (ExPW2/B). PW-22/SI Bachan Singh, during the course of investigation, recorded the statement of PW-5/Smt.Maya Devi, who had seen appellant no.2/Rani taking away Harkesh(deceased) on the date of occurrence while going towards the Ring Road. It is PW-22/SI Bachan Singh, who had ultimately arrested the two appellants and recorded CRL. A. No.43/1996 Page 4 of 12 disclosure statement of appellant no.1/late Gian Singh (ExPW8-B). The disclosure statement of appellant no.2/Rani was also recorded as ExPW8/C. The dead body of Harkesh at the pointing out of the appellant no.1 was also recovered by the said police officials. The dead body had a Tagri wrapped around the waist. Recovery of one piece of cloth of the shirt of the deceased and a frock was made at the time of recovery of skeleton which was sent for post mortem. The site plan was got prepared at the site.
10. The important testimony is of PW-1/Kumari Sanju who was aged about 8 years at the time of incident and was about 10 years when she was examined in the court on 03.03.1992. As per the Trial Court, the said witness gave intelligent and cogent answers and her story was in line with the statement made by PW-8/Devi Ram.
11. PW-4/Jamil is a vegetable vendor who used to sell vegetables in DESU colony. He was met by appellant no.1/Gian Singh on the fateful day at 5.45 A.M. They were together for some time till he saw appellant no.2/Rani coming with a child in her lap after which both the appellants started looking for a three wheeler which they could not get at the site and on reaching Gate No.1 of Pragati Maidan, they managed to get a scooter and proceeded towards Ashram.
12. The prosecution also examined PW-8/Devi Ram and PW-9/Chandrawati, parents of Harkesh. As per PW- CRL. A. No.43/1996 Page 5 of 12 9/Chandrawati, the problem originally arose about 15 days prior to the incident when she met appellant no.2/Rani while waiting for a bus. Appellant no.2/Gian Singh met them there and after completing the daily chores, photographs were clicked by a photographer which fact was not liked by PW-9/Chandrawati and she confided about the same in her husband. Since the news travelled further to the father of appellant no.2/Rani, the same, according to her, was not appreciated by the two appellants.
13. The room where the two appellants were staying after kidnapping the child was rented from PW-12/Inder Singh. He affirmed to the fact that the two appellants were staying there as husband and wife and stated that the child was of their relative. The child was, however, not found with them till about 15 days prior to the arrest of the appellants. The factum of the two appellants living together is also established by the testimony of PW- 15/Pritam Sharma, who was a co-tenant in the same house where the appellants were staying. PW-20/Mohan Lal, younger brother of appellant no.1 Gian Singh, has denied any knowledge about any affair between the two appellants though he has stated that the two appellants got married while on parole. There are two doctors examined in respect of the case of the prosecution. PW- 23/Dr.Jagdish Lal Chaudhary had referred the dead body to be taken to Rohtak Medical College for post mortem. CRL. A. No.43/1996 Page 6 of 12 PW-16/Dr.Basant Lal, conducted the post mortem on the dead body of the deceased. He opined that the dead body was in a skeleton form and was of a male child aged about 10 months, but the cause of death could not be established as it occurred about 2-3 weeks ago.
14. The plea of learned counsel for appellant no.2 was that the case of the prosecution based on circumstantial evidence did not have a complete chain of events and there were missing links. She pleaded that PW-1/Kumari Sanju was a tutored witness, who could not be relied upon. PW-4/Jamil who was the person who had last seen the deceased child with the appellants had failed to identify the photo (Mark X-1). PW-3/HC Sheikher Lal, has turned hostile. No independent witness had been when the house of the appellant no.1/Gian Singh was searched. Though PW-9/Chandrawati had referred to the fact that the skeleton had no identification mark expect the fact that he was wearing a Tagri of black colour having two mankas and one small brass ghungroo, there was no such mention of the same in the FIR recorded on the report of PW-8/Devi Ram, father of the deceased. No independent witnesses had been joined from the place where recovery of the dead body of Harkesh was made. PW- 9/Chandrawati was alleged to be deposing only on hearsay.
15. Learned counsel for appellant no.2, though a common appeal was filed, sought to shift the focus on the CRL. A. No.43/1996 Page 7 of 12 deceased appellant no.1/Gian Singh by contending that it was appellant no.1/Gian Singh who got the dead body of Harkesh recovered. This has some material bearing in view of the endeavour of the learned counsel for appellant no.2/Rani to contend that the case against appellant no.2 at best was one under Section 365 of IPC.
16. Learned counsel for the State, on the other hand, has strongly defended the judgment by contending that the well reasoned order of the Trial Court records how the prosecution has been able to complete the links in this case which is based on circumstantial evidence. In this behalf, learned counsel submitted that the circumstantial evidence establishes the following:
i) The worthy testimony of PW-1/Kumari Sanju, albeit a child, established the evidence of kidnapping as the deceased child was taken away by appellant no.2/Rani.
ii) The two appellants were seen with the child by PW-
4/Jamil when they left in a three wheeler scooter.
iii) Both the appellants were absent from their respective places of residence for a long period of time.
iv) Both the appellants were living together with the child in Gurgaon and this fact is established by the testimony of the landlord PW-12/Inder Singh and another witness PW-15/Pritam Sharma.
CRL. A. No.43/1996 Page 8 of 12
v) The recovery of the skeleton of the deceased child was at the instance of the appellant no.1/Gian Singh and this recovery is proved by the testimony of PW- 7/Girdhari Lal, PW-8/Devi Ram, PW-13/SI Som Dev, PW-17/HC Hukum Chand, PW-21/Const.Satish Kumar and PW-22/SI Bachan Singh. PW-7/Girdhari Lal proved the disclosure statement of the appellant no.1/Gian Singh and witnessed the recovery of the skeleton from Gurgaon. PW-8/Devi Ram and PW- 9/Chandrawati have proved the earlier quarrel while PW-12/Inder Singh was the landlord and PW-13/SI Som Dev of the Haryana Police was present when the recovery of the skeleton of deceased Harkesh was made. PW-15/Pritam Sharma was also a tenant in the same property at Gurgaon, Haryana. PW- 21/Const.Satish Kumar is the witness to the disclosure statement of appellant no.2/Rani as well as to the recovery of the skeleton of the deceased Harkesh and PW-22/SI Bachan Singh is the IO.
17. On examination of the evidence on record, we find no force in the submissions of the learned counsel for the appellant no.2/Rani.
18. A reading of the testimony of PW-1/Kumari Sanju shows that she has withstood the cross examination and has come out clean. She was undoubtedly eight years old when the incident occurred and deposed when she was CRL. A. No.43/1996 Page 9 of 12 about 10 years old. Her testimony is in consonance with what she had informed PW-8/Devi Ram who had made the report. She is the person who held the child when she was asked to accompany appellant no.2/Rani when the can of water being carried by appellant no.2/Rani spilled. Despite her resistance, she was forced to go back and get the water and the child was snatched by appellant no.2/Rani from the said PW-1. On her return, she found both the appellant no.2/Rani and child missing. PW- 4/Jamil thereafter saw both the appellants along with the child. He accompanied appellant no.1/Gian Singh whereafter appellant no.2/Rani along with the child had joined them and three of them left in a three wheeler scooter.
19. There is nothing brought on record in the statement under Section 313 of Cr.P.C. by the appellants to explain their absence over a period of one and half months from their respective residence. Their whereabouts after being apprehended were established by the testimony of PW- 12/Inder Singh who had let out the premises at Gurgoan, Haryana to them as also a co-tenant PW-15/Pritam Sharma. Both PW-12/Inder Singh and PW-15/Pritam Sharma have deposed to the child being alive at that time and playing around and thereafter not being seen. The child was last seen with the appellants and it was for the appellants to explain as to how the child died. CRL. A. No.43/1996 Page 10 of 12
20. The appeal is common to both the appellants and the endeavour of learned counsel for appellant no.2/Rani to now shift the blame on the deceased appellant no.1/Gian Singh cannot be accepted. In case the child had died of any natural cause, it was the bounden duty of both the appellants to have informed about the same. They, in fact, hid the fact. The ostensible reason could be that since they were apprehensive that the child may become an instrument to establish the case of kidnapping against the two appellants, he was put to death. The fact remains that the child died while with the two appellants and no explanation was forthcoming from these two appellants.
21. We are also unable to accept the plea of there being no identification of the skeleton of the dead body of the deceased Harkesh. The factum of Tagri and Gungroo helped in identification by PW-8/Devi Ram, father of the deceased, of the dead body of Harkesh. The absence of mentioning of these two items on the child at the stage of lodging of report does not in fact negate the case of the prosecution. The police officials and other witnesses, as referred to above, have proved the recovery of the dead body of Harkesh and at the behest of appellant no.2/Rani. It is not as if the child is elsewhere or there is another child since that aspect had to be explained by the appellants who had taken away the child and were living with him. It cannot be said that the complete link has not CRL. A. No.43/1996 Page 11 of 12 been established or that the prosecution has not been able to prove its case beyond reasonable doubt.
22. We are also unimpressed by the last argument sought to be advanced as an alternative plea by the learned counsel for appellant no.2 that at best a case of only kidnapping was made out against appellant no.2/Rani. This is predicated on shifting the case of murder only on appellant no.1/Gian Singh. Where clear facts are in evidence on record such a plea albeit appellant no.2/Rani being a woman and long time period having passed, has no place in criminal jurisprudence when the legislature has given no such option to the courts clearly setting out the consequences of conviction for the offences in question.
23. We find that the present appeal is meritless and dismiss the same.
24. Bail-cum surety bonds of appellant no.2/Rani stand cancelled and appellant no.2/Rani is directed to surrender before the Trial Court within a week.
SANJAY KISHAN KAUL, J.
December 21, 2009 AJIT BHARIHOKE, J.
dm
CRL. A. No.43/1996 Page 12 of 12