Punjab-Haryana High Court
Shankar vs State Of Punjab on 17 November, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1) Criminal Appeal No. 929-DB of 2004
Date of Decision: 17.11.2011.
Shankar .......Appellant
Vs.
State of Punjab ......Respondent
(2) Criminal Appeal No. 309-DB of 2005
Tara .......Appellant
Vs.
State of Punjab ......Respondent
(3) Criminal Appeal No. 216-DB of 2007
Om Parkash .......Appellant
Vs.
State of Punjab ......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Ms. Tanu Bedi, Advocate and
Mr. Ajit Attri, Advocate
for the appellants (Amicus Curiae).
Mr. Rajesh Bhardwaj, Addl. A.G., Punjab.
.....
SABINA, J.
Vide this judgment, the above mentioned three appeals would be disposed of as they have arisen out of the common judgment passed by the trial court dated 05.8.2004. Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 2- The present case relates to kidnapping and murder of a minor boy with a view to quench the thirst of appellant Tara to conceive a baby boy. Prosecution story in brief is that on the night intervening 01/02.7.2000, complainant Rajpal was watching television along with other family members in the house of his brother Lakhan. Younger son of the complainant Deepa aged about 5 years had gone out to urinate. After watching the television at about 12.30 A.M., when they looked for Deepa, they found that he was not present there. He searched for Deepa in the nearby huts but he could not be found. The complainant along with his brothers searched for his son throughout the night but could not locate him. The complainant believed that Om Parkash, so called Baba, Shankar and Tara wife of Hari Chand in connivance with each other had kidnapped his son Deepa with the intention to kill him. Om Parkash had come from Uttar Pardesh about 1½ months ago and had started living in their huts on the brick-kiln and practiced sorcery. Om Parkash lived in the house of Hari Chand and used to tell the general public that Hari Chand could be blessed with a son by offering blood of human child to Devi Mata. The said fact was told by Tara wife of Hari Chand to other ladies. She said that Om Parkash was a man of deeds and she would soon conceive a male child. Om Parkash, Tara and Shankar had disappeared from the brick-kiln on the previous night. He was confident that all the three, in connivance with each other, had abducted his son with the intention to kill him.
On the basis of the statement of the complainant, formal FIR No. 105 dated 02.7.2000 was registered at Police Station Sahnewal under Section 364/34 of the Indian Penal Code Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 3- ('IPC' for short).
Inspector J.S.Khaira Station House Officer, Police Station Sahnewal, after registration of the FIR, visited the spot along with the complainant and his brother. He prepared the rough site plan and inquired from the persons present at the spot. At about 2.30 P.M., Inspector J.S.Khaira along with other police officials, complainant Rajpal, his brother Rishi Pal and Darshan Singh, owner of the brick-kiln, were present on the brick-kiln of Shingara Singh where they received a secret information that Om Parkash had been seen near the Bus Stand Katani. On the basis of the said information, raid was organised and appellant Om Parkash was apprehended. On inquiry about the kidnapped child, appellant Om parkash suffered a disclosure statement that after kidnapping Deepa along with Shankar and Tara, they had committed his murder. The blood drawn from the child in a steel Kauli (bowl) was offered to Tara and she drank the same. Thereafter, he had told his companions to run away from the spot and assured that he would dispose of the body. The appellant further stated that he had concealed the dead body of the child in the fields of Jaswant Singh near the brick-kiln. On the basis of the said statement, appellant Om Parkash got recovered the dead body of Deepa from the disclosed place. The dead body was identified by Rajpal and Rishi Pal. Blood from the place of recovery of the dead body was lifted from the spot and the dead body of Deepa was sent for post mortem examination. On the same day, raid was conducted at Railway Station, Doraha and Sahnewal. Accused Tara and Shankar were arrested. All the accused were got medically examined.
On 04.7.2000, appellants Shankar and Tara were Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 4- interrogated by Sub Inspector Kuldeep Singh in the presence of PWs Darshan Singh and Manjit Singh. During interrogation, appellant Shankar suffered a disclosure statement and on the basis of the same, he got recovered Dah from the disclosed place. Appellant Tara during interrogation suffered a disclosure statement and got recovered the Kauli from the disclosed place. The recovered articles were taken in possession.
After completion of investigation and necessary formalities, challan was presented against the appellants.
During trial, prosecution examined 17 witnesses in support of its case.
After the close of prosecution evidence, the appellants when examined under Section 313 of the Code of Criminal Procedure ('Cr.P.C.' for short), prayed that it was a false case and PWs had deposed falsely.
The appellants did not examine any witness in their defence.
The trial court vide judgment/order dated 05.8.2004 convicted and sentenced the appellants for commission of offence under Section 364 and 302/34 IPC. Hence, the present three appeals by the appellants.
Learned counsel for appellants has submitted that the prosecution had miserably failed to prove its case. The appellants had been falsely involved in this case merely on the basis of suspicion and hearsay evidence. No independent witness had been joined/examined by the prosecution to substantiate its case. Recoveries of weapon had been falsely foisted on the appellants. The appellants had no motive to kidnap the minor child of the complainant and thereafter, commit his murder. The Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 5- statement of PW-11 Jagdev Singh had been recorded later on by the investigating officer to introduce the circumstance of last seen. In fact, the appellants had been beaten up by the investigating agency and thereafter, they were falsely involved in this case. Learned counsel for the appellants has placed reliance on 'Varkey Joseph versus State of Kerala', AIR 1993 Supreme Court 1892, wherein it was held as under:-
"Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt."
Learned counsel for the appellants has next placed reliance on 'Manjunath Chennabasapa Madalli versus State of Karnataka', AIR 2007 Supreme Court 2080, wherein it was held as under:-
"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446) ; State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 6-
circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
Learned state counsel, on the other hand, has submitted that the prosecution witnesses had deposed in a most natural manner. The prosecution witnesses had no ill will against the appellants to falsely involve them in this case. Moreover, recoveries of the dead body, dah and Kauli had been effected by the appellants on the basis of their disclosure statements. The statement of PW Jagdev Singh had been recorded on 02.7.2000 itself.
The present case rests on circumstantial evidence. It is settled proposition of law that the prosecution is required to establish the complete chain of circumstances which would lead to the inference that the offence has been committed by none else but the accused. Let us examine the circumstances brought on record by the prosecution to prove its case.
PW-2 Dr. Raj Kumar Kaura deposed that on 03.7.2000, he had conducted the post mortem examination on the dead body of deceased Deepa. As per the post mortem report Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 7- Ex. P-3, the age of the deceased has been mentioned as 5 years and it appears that due to inadvertence, the age of the deceased has been typed as 8 years while recording the statement of PW-2. This witness further deposed that on examination of the dead body, he found following injuries the person of the deceased:-
1. 1" x 3/4" x /1/2" right chask, 4 cm. from the right orbit. Bone deep.
2. 1½" x ¼" x bone deep below lower lip 1/2"
underlying mendible broken, dislocating under teeth front.
3. 3½ x 1" muscle deep on neck 1" from Mendible lower border.
4. 4" x 3/4" cutting lower portion of the skull, right sided cutting ear pinna right from the middle.
5. 3" x 1¼" x ½" on the neck running laterally on the neck right side.
6. 4" x 4" on the neck supraclavicular right sided cutting spins and under lying muscles.
7. 2½" x 1/2" muscle deep supraclavicular on the right side in the supraclavicular fossa.
8. Superficial and deep abrasions over the right shoulder.
9. Deep incision 3/4" x 1/4" x 1/4" over the lower left Palmer area.
10. 1" x 1/2" bone deep incision on the scal 1 cm. from the left ear pinna. Cut through and through. The cause of death in his opinion was due to multiple injuries suffered by the deceased which were sufficient to cause Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 8- death in the ordinary course of nature. As per this witness, the stomach of the deceased contained food particles.
Complainant Rajpal, while appearing in the witness box as PW-7, has deposed as per the contents of the FIR and has further deposed that after registration of the FIR, police had accompanied him to the spot. He further deposed qua the apprehension of accused Om Parkash from the room of the Bus Stand of village Katani Kalan. He further deposed that on the basis of the disclosure statement by accused Om Parkash, dead body of his son was recovered from the disclosed place.
PW-8 Lakhan has corroborated the statement of the complainant qua the contents of the FIR.
PW-9 Munesh Kumari, mother of the deceased, has corroborated the statement of the complainant qua the contents of the FIR. She further deposed that about 15-20 days prior to the occurrence, appellant Tara was sitting along with other ladies. She was also present in the said gathering. Tara accused told the ladies that accused Om Parkash who called himself "Akhoti Baba" had told her that in case she drinks the blood of a sacrificed male child, she would be able to give birth to a male child.
PW-10 Darshan Singh, owner of the brick-kiln, deposed that he was running the brick-kiln in the area of village Katani Kalan. Most of the labour working on his brick-kiln belonged to Uttar Pardesh or Bihar apart from some local residents. Some huts had been put up near the brick-kiln for residential purposes of the labour. About three years ago, Deepa aged about 5/6 years had gone to urinate while the other persons were watching television. However, Deepa could not be Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 9- located, thereafter the matter was reported to the police. He also came to know about the occurrence and reached the brick-kiln. He accompanied the police to the bridge in the area of Katani canal where Om Parkash appellant was found sitting in a room. Appellant Om Parkash was apprehended and on the basis of his disclosure statement, dead body of Deepa was recovered from the disclosed place. On 04.7.2000, Tara and Shankar were arrested from Railway Station, Sahnewal. On the basis of disclosure statement suffered by appellant Tara, one Kauli was recovered from the disclosed place. Similarly, on the basis of the disclosure statement suffered by appellant Shankar, one dah was recovered from the disclosed place. Kauli as well as dah were taken in police possession by the investigating officer.
PW-11 Jagdev Singh deposed that he was working as a Munshi on the brick-kiln of Darshan Singh at village Katani Kalan. On the night of 01.7.2000, he was present in his room above the office of brick-kiln along with his family. He had gone to urinate and saw Om Parkash carrying a child in his lap. Shankar was following him armed with a dah. Tara was carrying a shining kauli in her hand. Thereafter, he went to sleep and in the morning, he left for Ludhiana for some work. He returned back to the brick-kiln at about noon time on 02.7.2000 and came to know about the present occurrence. His statement was recorded by the police.
PW-14 Jaswant Singh deposed that he was the resident of village Katani Kalan. On 02.7.2000, he reached his fields from where the dead body of Deepa was recovered by the police on 02.7.2000.
Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 10- The other witnesses are official witnesses and relate to investigation carried out before the preparation of final report.
There is no force in the argument raised by learned counsel for the appellants that the prosecution case was based on hearsay evidence. In the present case PW-9 Munesh Kumari- mother of the deceased was present in the gathering where appellant Tara had proclaimed that she had been told by Baba Om Parkash that in case she drinks the blood of a sacrificed male child, she would be able to give birth to a male child. This aspect of the statement of PW-9 could not be shaken during her cross examination. Hence, we are not convinced with the argument raised by the learned counsel for the appellants that the present case was based on hearsay evidence.
We are also not convinced with the argument raised by the learned counsel for the appellants that the present case was merely based on suspicion. In the present case, PW-9 had heard appellant Tara disclosing to the other ladies that she would be able to conceive a male child in case she drank the blood of a sacrificed male child as told to her by appellant Om Parkash. PW-11 Jagdev Singh had last seen the appellants carrying the child. The dead body of the child was recovered on the basis of the disclosure statement suffered by appellant Om Parkash from the fields of PW Jaswant Singh. Hence, it cannot be said that the appellants had been held guilty by the trial court qua kidnapping and murder of deceased Deepa merely on the basis of suspicion.
In a case of circumstantial evidence motive gains significance. In the present case, it is apparent from the prosecution evidence that appellant Tara had the motive to Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 11- kidnap and commit the murder of deceased Deepa as she had been made to believe by appellant Om Parkash that she would be able to give birth to a male child in case she drank the blood of a sacrificed male child. Appellant Om Parkash naturally helped appellant Tara in achieving her goal as it would have lent credence to his witchcraft. Appellant Shankar also lived in the huts put up on the brick-kiln of Darshan Singh and helped the other appellants to achieve their goals. The dah used at the time of murder of the deceased was recovered on the basis of the disclosure statement suffered by appellant Shankar from the disclosed place. Hence, all the appellants had a strong motive to commit the crime.
Recoveries were effected on the basis of the statement suffered by the appellants during investigation. On the basis of disclosure statement suffered by appellant Om Parkash, dead body of deceased Deepa was recovered from the fields of Jaswant Singh. In this regard, the statement of official witnesses are duly corroborated by PW-7 Rajpal, PW-8 Lakhan and PW-10 Darshan Singh. PW-10 Darshan Singh is an independent witness. The said witness is the owner of the brick-kiln and had no ill will against any person. The said witness has corroborated the prosecution version qua the recovery of dead body of the deceased from the fields of Jaswant Singh on the basis of the disclosure statement suffered by appellant Om Parkash. So far as appellant Shankar is concerned, dah was recovered on the basis of the disclosure statement suffered by him on 04.7.2000 before Sub Inspector Kuldeep Singh during interrogation. PW-10 Darshan Singh has corroborated the recovery of dah on the basis Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 12- of disclosure statement suffered by appellant Shankar. Similarly, recovery of kauli on the basis of disclosure statement suffered by appellant Tara before PW-17 Sub Inspector Kuldeep Singh during interrogation, has been duly corroborated by PW-10 Darshan Singh. Since, in the present case the recoveries effected from the appellants on the basis of their disclosure statements are duly corroborated by independent witness PW-10 Darshan Singh, the possibility that the recoveries have been falsely foisted on the appellants, is ruled out.
PW-11 Jagdev Singh had last seen the appellants with the deceased. The said witness worked as a Munshi on the brick- kiln of Darshan Singh and is, thus, an independent witness. He is residing in a room above the office of the brick-kiln along with his family and saw Om Parkash appellant carrying child in his lap. The statement of the said witness was recorded under Section 161 Cr.P.C. on 02.7.2000. The said witness has deposed that he had gone to Ludhiana for some work in the morning on 02.7.2000 and had returned back at about noon time and thereafter, his statement was recorded by the police. The said witness had no ill will against the appellants to have falsely involve them in this case. Apparently, the said witness did not suspect any foul play when he saw appellant Om Parkash carrying a child followed by Shankar and Tara as he believed that they were going to do labour work. However, when he returned back from Ludhiana, he came to know about the occurrence and got recorded his statement. Hence, there is no force in the argument raised by learned counsel for the appellants that PW-11 had been joined at a later stage to strengthen the prosecution case. Rather, the statement of Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 13- PW-11 Jagdev Singh being natural inspires confidence.
Learned counsel for the appellants also has drawn our attention towards the medical examination of the appellants to substantiate the argument that the appellants had been given beatings by the investigating agency before falsely involving them in the present case. A perusal of Ex. PW-13/D, Ex. PW-13/E and Ex. PW-13/F reveals that some injuries were found on the person of the appellants during their medical examination. A perusal of the said documents further reveals that the duration of the injuries were 2-3 days. The appellants were examined on 03.7.2000. The appellants were arrested on 02.7.2000. The fact that the duration of the injuries were 2-3 days, falsifies the argument raised by learned counsel for the appellants that they had been inflicted injuries during investigation.
Learned counsel for the appellants in order to substantiate the argument that investigation in the present case had not been conducted in a proper manner, have drawn our attention to FIR Ex. PW-7/A wherein it has been noted by the Judicial Magistrate Ist Class that he had received the copy of the FIR on 7.30 P.M. through Constable Ajaib Singh whereas during trial, the prosecution had examined Constable Ravinder Singh PW-3 in this regard. A perusal of the FIR further reveals that Constable Ravinder Singh had been sent to deliver the special report to the concerned officers. Constable Ravinder Singh, while appearing in the witness box as PW-3, has categorically deposed that he delivered the special report to the Magistrate at 4.00 P.M. whereas as per the noting of the Judicial Magistrate Ist Class on the FIR Ex. PW-3/A, the copy of the FIR had been received at 7.30 P.M. through Constable Ajaib Singh. Be that as Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 14- it may, the said fact in itself would not be sufficient to discard the prosecution case. Moreover, in the present case, the FIR had been initially registered under Section 364/34 IPC. The offence under Section 302 had been added later on after the recovery of dead body of the deceased Deepa. Prosecution had been successful in bringing on record various circumstances which establish the guilt of the appellants and hence, this discrepancy, pointed out by the learned counsel for the appellants, cannot be said to be fatal to the prosecution case.
Thus, in the present case, prosecution had brought various circumstances on record which complete the chain leading to the inference that the appellants are guilty of the charges framed against them. There is no escape from the conclusion that the crime had been committed by the appellants and none else. Appellant Tara had been proclaiming that she would be able to conceive a male child in case she drank the blood of a sacrificed male child. The said belief had been sown in the mind of appellant Tara by appellant Om Parkash and with a view to conceive a male child, appellant Tara kidnapped the deceased along with appellants Om Parkash and Shankar. Appellant Om Parkash was residing in the hut of appellant Tara and obviously wanted to help her to establish his magical powers. It has come in evidence that appellant Shankar was living alone in his hut and he also joined hands with the other appellants for commission of the crime. All the appellants were last seen together by PW-11 Jagdev Singh with the child. Dead body of the child was recovered on the basis of the disclosure statement suffered by appellant Om Parkash. Weapon of offence was recovered on the basis of the disclosure statement suffered Crl. Appeals No. 929-DB of 2004, 309-DB of 2005 and 216-DB of 2007 - 15- by appellant Shankar. The medical evidence corroborates the infliction of injuries on the person of the deceased with a sharp edged weapon. PW-2 deposed that possibility of the injuries on the person of the deceased being caused with dah Ex.P-27 could not be ruled out. The appellants were found missing from their huts at the time of occurrence. There is no quarrel with the preposition of law settled vide the judgments relied upon by the counsel for the appellant but the same fail to advance the case of the appellants as in the present case prosecution has succeeded in proving its case. Hence, the trial court rightly convicted and sentenced the appellants for commission of offence under Section 364 and 302 read with Section 34 IPC.
Accordingly, all the three appeals are dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
November 17, 2011
Gurpreet