Punjab-Haryana High Court
Karan Bahadur vs State Of Haryana on 23 October, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
CRA-D No.1029-DB of 2009
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D No.1029-DB of 2009(O&M)
Date of decision: 23.10.2013
Karan Bahadur .... Appellant
versus
State of Haryana .... Respondent
CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL
HON'BLE MS. JUSTICE ANITA CHAUDHRY
Present: Mr. Sameer Sachdeva, Advocate
for the appellant.
Mr. Dhruv Dayal, DAG, Haryana.
*****
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Anita Chaudhry, J.(Oral)
This is a case where the life of a nine-year old boy was snuffed in the Gurukul, which is considered to be a safe sanctorum. Attempt was made to sodomize the child. He was killed thereafter as he would have exposed him. The victim had not even seen ten summers of his life. His life was taken in an institution where the parents had thought that good values would be imbibed in him. Destiny had something else in store for him. It is with great pain that investigations were not carried out properly in this case. There were only few members in the Gurukul. It would have been easy to identify the person and collect clinching evidence to nail him had Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -2- scientific investigation been carried out. The reasons will follow.
First the facts, Karan Bahadur was a cook at the Gurukul. He was tried and convicted and has preferred an appeal against the judgment of conviction dated 29.04.2009 and order of sentence dated 30.04.2009 passed by Addl. Sessions Judge, Ambala. The appellant was convicted in FIR No.265 dated 10.11.2005 registered under Sections 302, 377 and 511 IPC at police station Ambala City. He was sentenced to undergo life imprisonment along with a fine of Rs.5,000/- under Section 302 IPC. In default of payment of fine, he was to further undergo imprisonment for a period of six months. He was also sentenced to undergo rigorous imprisonment for a period of five years along with a fine of Rs.1,000/- for commission of offence punishable under Section 377 read with Section 511 IPC. In default of payment of fine, he was to further undergo imprisonment for a period of three months. All the sentences were directed to run concurrently.
The police received a call from Sh. Atma Wallabh Shrmnopasak Gurukul, Ambala City (hereinafter referred as 'Gurukul') on 10.11.2005. The DSP along with other police officials reached the Gurukul. Harish Jain-complainant, father of the Neeraj Jain (deceased) had by then reached there. He made a statement Ex.P-39 and formal FIR Ex.P-29 was registered. Harish Jain had been called from Ludhiana by the inmates of the Gurukul. He disclosed to the police that his son was admitted in the Gurukul six months earlier. Arvind Jain, Secretary of the institute had informed him telephonically that morning that his son had suddenly died. He got another call after ten minutes and was asked whether he would come to take the body Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -3- or they should arrange to send it. Harish Jain told him that he would be coming. Arvind Jain did not state any reason for the death. Harish Jain reached the Gurukul at 8.00 am. He found the dead body lying in the corridor on the first floor. He noticed injury marks, which were more apparent on the neck, abdomen near the naval, on the back and right side of the body and near the right foot and ankle. Manish Jain, nephew of the complainant, was also a student of the same Gurukul and was sleeping in the adjacent room. Harish Jain enquired from him and was told that he had found Neeraj's body lying under his bed with the head down and it appeared that someone after inflicting injuries had stored his body under the bed.
The police summoned the dog squad and finger print expert. They found blood stains on the outer wall of the room. The police again visited the Gurukul on the next day and made detailed enquiries from the residents. On the basis of statement given by Kapoor Chand Jain, the religious teacher, the police joined Karan Bahadur in the investigation and he was formally arrested. The police joined independent witnesses and interrogated him and he suffered a disclosure statement that he had gone out in the evening of 09.11.2005 and had told Kapoor Chand Jain that he would be coming late and door of the Gurukul should be kept open and he had returned at 10.30 pm and went to Neeraj's room and found him sleeping and he picked up the boy and brought him down-stairs but on the way, he woke up. Karan Bahadur then tried to sodomize the child and ejaculated in his handkerchief . Neeraj had protested and told him that he would inform the authorities. Karan Bahadur got scared and Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -4- pushed Neeraj against the wall and closed his mouth, caught his neck and strangulated him. The child died. Thereafter he stuffed the body beneath his bed and returned to his room. He also told that he had thrown the handkerchief under his bed and could get the same recovered. The police prepared the memo Ex.P-53, which was signed by Anil Garg and Vijay Kumar Bhasin and thereafter the accused led the police to his room and got the handkerchief recovered as per disclosure. The police obtained police remand and when they were near the Court complex, Karan saw Anand Jain and Mahinder Pal Jain, officials of the Gurukul coming from the other side. Karan requested the police and he was allowed to speak to Mahinder Pal Jain with whom he had worked for 14-15 years. The investigating officer permitted him to meet Mahinder Pal Jain. Thereafter Mahinder Pal Jain produced a extra-judicial confession Ex.P-45 suffered by the accused. The police approached the Court to record the confessional statement of the accused but permission was not granted. The blood sample of the accused was obtained and the handkerchief as well as the blood samples were sent to the Chemical Examiner for DNA test. The investigations were completed and a report under Section 173 Cr.PC was laid in the Court against the accused.
Charge for commission of offence under Sections 302 and 377 read with Section 511 was framed against the accused. The accused pleaded not guilty and claimed trial.
The prosecution examined Harish Jain, complainant-PW-15, Arvind Jain, Secretary of Gurukul - PW-14, Mahinder Pal Jain, Cashier of Gurukul - PW-16, Manish Jain, Nephew of Harish Jain - PW-17, Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -5- Kapoor Chand Jain-PW-18 and Gurinder Singh - PW-12, who noted the unnatural conduct of the accused on the next day of the incident when he came to take delivery of the milk from his diary. Besides them, the prosecution examined Dr. Darshan, medical officer - PW-7 and Dr. Shashi Tripathi, Officer of the Central Jail - PW-9 and the investigating officer.
Dr. Darshan, Medical Officer, Civil Hospital, Ambala City - PW-7 had conducted the postmortem examination on the dead body of Neeraj Jain and had noted the following injuries on his person:
Injuries:
Face from the upper part of neck, severally congested, froth coming from both nostrils.
1. Superficial abrasion involving upper part of neck extending on the right side of the neck up to the latrin margin of sterno cleno mastoid muscles with the width in size 1 to 1.15 cm with length of 12.5 cm with intermittent healthy area in the interior part.
2. Superficial lenore abrasion of 3.5 cm x 0.2 cm in breath present in the left side of abdominal wall in apegestic region.
3. Two superficial side by side abrasions present over the right side of the back below scapular region.
4. Two superficial abrasion over the right lateral malleolus antero lateral part of foot.
5. There is a accymosis with a little swelling in the left Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -6- lower part of lip scalp and scull and vertebra healthy.
6. Membrainces, pain, spinal cod healthy.
The cause of death was asphyxia from compression of external airways due to strangulation as described in the PMR. All the injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. The medical officer gave its opinion that there was an attempt of sodomy as human semen was detected on Ex.2 i.e. handkerchief.
In the statement recorded under Section 313 Cr.PC, the accused pleaded false implication.
It has to be noticed here itself that the trial Court summoned six witnesses. Arvind Kumar - CW-1, he brought the record of students staying in the room of deceased Neeraj Jain. CW-2 to CW-6, who were examined as Court witnesses, were students of the Gurukul.
The trial Court accepted the evidence and convicted the appellant on both the counts and sentenced him to the imprisonment mentioned hereinbefore. It however, rejected the evidence so far as the extra judicial confession suffered by the accused.
We have heard the submissions made by learned counsel for the parties and with their assistance examined the record minutely.
It was contended on behalf of the appellant that this is a case where people, who were incharge of the Gurukul tried to mislead the complainant and they got an innocent person implicated, which he shall demonstrate. It was urged that the father was called and he was Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -7- informed that his son had died and it was a natural death and at one stage it has come in evidence that it was disclosed to be a case of heart failure but the boy had injuries, which can be seen in the photographs and in the postmortem report. It was urged that the authorities wanted to send the body to Ludhiana where the father was living and they were screening the main offender and the investigating officer did not bother to record the statement of the children nor allowed the police to examine them and Arvind Jain conveyed to the investigating officer that he suspected Karan Bahadur and that is how Karan Bahadur was a suspect and the police took him away and they cooked up a story of a disclosure statement and recovery of his handkerchief. It was urged that the prosecution has submitted a DNA report and the semen on the handkerchief was compared with the blood of the accused and it was of the same person. It was submitted that the appellant was an adult and married person and the presence of semen on his clothes was normal and it would have been a different case if the semen had been found on the private parts of the boy. It was urged that the prosecution had brought up the extra judicial confession circumstance suffered by the accused, however, the trial Court had rightly rejected that piece of evidence. It was urged that there was no necessity for the appellant to unburden himself as he had already disclosed the incident to the police. It was urged that the father did not express any doubts on Karan Bahadur and he approached the Hon'ble High Court and wanted the investigations to be handed over to another agency but his efforts failed. It was contended that Karan Bahadur was not involved in the incident and he Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -8- remained in the Gurukul even after the incident as he was innocent. It was urged that the police had introduced Gurvinder Singh - PW-12, who had spoken about the conduct of Karan Bahadur the next morning but Gurvinder Singh did not disclose this fact to the police for a month though he had come to know of the murder, the next morning. It was contended that there is no circumstance, which connects the appellant to the crime. It was contended that Mahinder Pal Jain did not say that Gurvinder Singh had told him about Karan's behaviour and it was an important fact which should have been spoken of by Mahinder Pal Jain. It was contended that the Court was not satisfied with the evidence produced on record and called all the children of the Gurukul and they had spoken in favour of Karan Bahadur and about his good conduct. It was urged that it was the management, who knowingly sent all the children away the next day in order to shield someone from the Gurukul and the police has helped that person and an innocent man was implicated in the crime to save the culprit.
On the other hand, the contention raised on behalf of the State was that the accused had suffered a disclosure statement and had admitted to the crime and he also sought help from Mahinder Pal Jain with whom he had worked for 14-15 years but the trial Court has rejected the circumstance of extra judicial confession, however, there is enough evidence, which nails the appellant and the prosecution had fully established its case and the appeal deserves to be dismissed.
Where the prosecution case is based on circumstantial evidence then three conditions must be satisfied: (i) the circumstance Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -9- must be cogently and firmly established (ii) the circumstance should be of definite tendency unerringly pointing towards the guilt of the accused (iii) the circumstance taken cumulatively should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused.
In MG Agarwal and Anr. vs. State of Maharashtra (AIR 1963 SC 200) the Hon'ble Apex Court in the similar vein and without any contra note stated the law with utmost lucidity in the manner noted below:
"It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -10- person or not, and in dealing with this aspect of the problem the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt."
The incident had occurred in the Gurukul, which houses a large number of children and teachers. Neeraj was a student of 4th class and just nine years old child. As ususal after having dinner he slept in the room along with his other companions. His dead body was discovered the next morning by his room mates. The body was lying under the bed. The body was taken out and brought in the corridor. Harish Jain received a telephonic message from Arvind Jain that his son had died. The father was shocked and asked the reason as his son was hale and hearty on the previous day. Arvind Jain replied that Neeraj had died on account of heart attack. Harish Jain while deposing before the Court had also stated that he got another call after 10 minutes and Arvind Jain told him that they were coming with the body. The complainant immediately told him that he would be coming to the Gurukul to take the body and thereafter he along with his brother reached the Gurukul at 8.00 am.
Mahinder Pal Jain - PW-16 had stated that he got a telephone call at 6.00 am from Kapoor Chand Jain that Neeraj had not woken up. He was asked to come to the Gurukul immediately and he reached the Gurukul and found the body lying under the cot. Mahinder Pal Jain had also deposed that they had called Dr. Shiv Kumar, who had examined Neeraj and they were told that he had died a natural death. Mahinder Pal Jain had also stated that Harish Jain Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -11- arrived in the Gurukul, he had seen the dead body and found marks on the neck and other part of the body and he suspected it to be a case of murder therefore, they called the police.
The management, its employees and the children had seen the body, which had injury marks on different part of the body and later the police had discovered that there were blood stains on the wall and on the floor but these facts were never disclosed by the management to the father and instead they wanted to send the body home so that the truth should not come out. It has also come in evidence that before the police had arrived the place had been washed. There was an attempt to mislead the complainant and also the police.
A finger was pointed towards Karan Bahadur by Kapoor Chand Jain and it is only then the police joined Karan Bahadur in the investigation and subsequently arrested him. Karan Bahadur throughout was present in the Gurukul. The prosecution had put up several circumstances i.e. (i) Disclosure statement (ii) Recovery of handkerchief containing the semen stain (iii) post conduct of the appellant (iv) extra judicial confession (v) DNA report, which are necessary to be examined.
It has now to be seen whether the circumstances set up by the prosecution prove the charges set up by the prosecution. The accused had been arrested immediately when the inmate of the Gurukul sounded the police that the conduct of Karan Bahadur was suspicious. The case of the prosecution is that he was interrogated and he suffered a disclosure statement and in that statement Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -12- he revealed that he had gone out of the Gurukul and was to return late and had called up Kapoor Chand Jain and had told him to keep the door open as he would return late. Karan Bahadur had also revealed that he tried to commit unnatural offence with the child and since he threatened to reveal to his superiors, therefore, he inflicted injuries and strangulated him and then put the body under the bed. He had also revealed that while committing the unnatural offence, he ejaculated and used his handkerchief, which was now lying in his room. The police had collected the clothes of the child. There was no redness or injury on the private parts but there were injuries on the abdomen, neck, foot and ankles.
The police had obtained the blood sample of the accused and had sent it to the Chemical Examiner for comparison with the semen found on the handkerchief. It was bound to match as it was of the accused. The appellant is an adult married man and presence of semen on his clothes was natural. The DNA report is of no help to the prosecution nor it is a circumstance, which points towards the guilt of the accused.
The next circumstance set up by the prosecution was the abnormal conduct of Karan spoken to by Gurvinder Singh - PW-12. He had noted the nervousness on the part of the appellant the next morning. But it is strange that Gurvinder Singh did not disclose about it to the police or to the senior members of the Gurukul. Gurvinder Singh disclosed this fact to the police after a gap of one month. This fact had not been spoken of even by Mahinder Pal Jain while testifying in the Court. It appears that this is a circumstance which has been Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -13- introduced subsequently just to make the case stronger against the appellant. Had the appellant committed the offence, he would not have associated himself and would have escaped and would have kept himself confined to his room. The police had arrived in the Gurukul in the early hours on the next day and there was not enough time to compose. This circumstance has not been proved.
The circumstance of extra judicial confession set up by the prosecution was rejected by the trial court and rightly so as there was no need for the appellant to make another statement when he had already made disclosure statement as alleged by the prosecution. The appellant was in police custody. The police would not have even allowed Karan Bahadur to meet someone during police custody.
The complainant was not satisfied with the investigation and had approached the Hon'ble High Court but that fact also did not alert the police. It appears that they were shielding someone for reasons only known to them.
The police failed to carry out scientific investigation in this case. Blood had been found on the anal swab taken from the body of Neeraj Jain but the blood group could not be ascertained. It could have been a strong link to nail the appellant. It could be that it was purposely not done as it would have exposed someone. The blood sample drawn from the appellant during the investigation had to match with the semen sample found on the handkerchief found in the room of the accused.
The prosecution had miserably failed to bring up strong circumstances against the appellant. There is not even a single Bura Sonia 2013.11.11 14:08 I attest to the accuracy and integrity of this document Chandigarh CRA-D No.1029-DB of 2009 -14- circumstance, which shows his involvement. The trial Court had made an effort to seek support from the children, who were living in the same room of the Gurukul and they were summoned as Court witnesses but all of them had a good word for the appellant. They did not even suspect him. The management on the other hand had sent these children away from the Gurukul when the police arrived in the Gurukul . The investigation in the case was shoddy. The adult members should have been called for interrogation and that would have helped. The prosecution had failed to prove its case.
Accordingly, the appeal filed by the appellant is allowed and the judgment of conviction and order of sentence passed by the trial Court is set aside.
(M.Jeyapaul) (Anita Chaudhry)
Judge Judge
23.10.2013
sonia
Bura Sonia
2013.11.11 14:08
I attest to the accuracy and
integrity of this document
Chandigarh