Punjab-Haryana High Court
Vikram Singh vs State Of Haryana on 26 May, 2006
Equivalent citations: 2007CRILJ1077
Author: Uma Nath Singh
Bench: Mehtab Singh Gill, Uma Nath Singh
JUDGMENT Uma Nath Singh, J.
1. This common judgment shall also dispose of the connected matters being (i) Crl. Appeal No. 400-DB of 1998 (A. Surender Singh v. State of Haryana), (ii) Crl. Appeal No. 505-SB of 1998 (Yadvinder Singh v. State of Haryana), (iii) Crl. Appeal No. 520-SB of 1998 (Manjit Kaur v. State of Haryana) and (iv) Crl. Revision No. 1142 of 1998 (Phool Kishan Kundu v. Vikram Singh and others), as all these cases arise out of the impugned judgment of conviction and sentence passed in Sessions case (No. 27 of 1996) by learned Sessions Judge, Kurukshetra on 5-6-1998. Vide the said judgment, accused-appellants Vikram Singh and Surender Singh have been held guilty of offences under Sections 449/ 34, 376(g), 302/34 and 392, IPC read with Section 397, IPC whereas accused appellants Yadvinder Singh and Manjit Kaur, brother-in-law and sister of accused Surender Singh, have been convicted under Section 411, IPC. Appellants Vikram Singh and Surender Singh have been found to have committed : (a) house trespass by entering into the dwelling house of Smt. Usha Kundu for commission of murder, (b) gang rape on the person of the deceased, (c) murder by intentionally causing death of Prof. Smt. Usha Kundu, aged 52 years, in the premises of the Kurukshetra University, and (d) robbery as a result of causing death with deadly weapon during commission of theft of household articles, jewelleries and other valuables in furtherance of the common intention, and, thus, they have been each sentenced to undergo RI for ten years with a fine of Rs. 250/-, in default of payment of fine, to undergo further RI for one month on the first count; ten years' RI with a fine of Rs. 250/-, in default of payment of fine, to undergo further RI for one month on the second count; imprisonment for life with a fine of Rs. 250/-, in default of payment of fine, to undergo further RI for one month on the third count; and RI for seven years with a fine of Rs. 250/-, in default of payment of fine, to undergo further RI for one month on the fourth count. However, other two appellants Yadvinder Singh and Manjit Kaur, who were only held guilty of offence under Section 411, IPC have been sentenced to RI for one and half years each.
2. The prosecution case is based on a statement (Ex. PQ) of Phool Kishan Kundu (PW 25) made on 20-2-1996 at 6.15 p.m. to Inspector Rattan Singh (PW 32). Pursuant to the said statement, an FIR (Ex. PQ/2) was registered at 6.25 p.m. on that day initially under Section 460, IPC. A special report pursuant thereto was sent to the Chief Judicial Magistrate the same day at 9.25 p.m. PW 25 narrated that he was running a stationery shop in the University market. His elder brother Dr. C.L. Kundu was the Vice Chancellor of Shimla University, and his wife, deceased Usha Kundu, was Professor in Regional Engineering College, Kurukshetra University. On 16-2-1996, the deceased told him that she would be visiting her son Sanjay Kundu, an IPS Officer, on Shivratri day. A day before 20-2-1996, at about 7.00 p.m., he visited the House No. F-2; University Campus, Kurukshetra, of his deceased sister-in-law and found it locked. He gathered an impression that she would have gone out somewhere as she was supposed to return on the next day of the her visit to her son. He went around the house and returned home. On 20-2-1996, he visited the house at 1.30 p.m. being accompanied by Shiba Kishan Kaul, his first cousin (mother's sister's son) but the house was found locked. He again went around the house, however, found the chairs lying in the varandah. He thought that since chairs were lying outside, Smt. Usha Kundu would have returned home after visiting her son. They stayed for about 10-15 minutes in the varandah. Thereafter, they went to the Regional Engineering College, the place of her employment, to enquire about her where-abouts. They were told that it was a holiday. He then made a telephonic call to his brother Dr. C.L. Kundu at Shimla (husband of the deceased) to find out about the deceased. He also made a telephonic call to the residence of Shri Sanjay Kundu at Chandigarh, and then, came to know that he (Shri Sanjay Kundu-son of the deceased) had gone to Bombay with his children. He also made two-three calls to Janju but no one lifted the receiver. Thereafter, he went to his shop. At about 4.30 p.m., he came to know that one D. S. Yadav had opened the lock of the house and found that the dead body of deceased Usha Kundu was lying inside the house. The complainant, therefore, rushed to the spot, and saw that the dead body of Smt. Usha Kundu was lying in the corridor and her articles were scattered. The almirah of the bed room, which contained the valuables like ornaments, cash, important articles and papers etc., was also lying open. The keys of the almirah used to be in custody of deceased Usha Kundu. Raj Kumar, a domestic help of the deceased, had seen her last on 18-2-1996 at 7.30 p.m. As per report, some unknown culprits having forced entry into the house in the intervening night of 18/19-2-1996 murdered the deceased by causing injuries. They had committed robbery and taken away ornaments, cash and other important articles, and then they had locked the house from the outside. The statement was read over to him, which he found to be correct. As the Inspector prima facie found the commission of offence under Section 460, IPC, he recorded a ruqa as such and sent the original copy to the Police Station through HC Sat Pal for registration of an FIR. The FIR was registered by ASI Baldev Singh and copies thereof were sent to the Illaqa Magistrate, SP and DSP through Constable Anil Kumar. The I.O. Rattan Singh started the inquest at 4.30 p.m. on 20-2-1996 and in the inquest report (Ex. PA/1) noted the age of the deceased about 52 years. He also noticed the presence of rigor mortis and the following injuries on the body of the deceased.
1. There is a mark of injury towards the right side of nose.
2. There is bluish injury mark towards left side of neck.
3. There is a deep mark of injury in the abdomen towards left side of belly.
4. There is a deep mark of injury towards left side of the flank.
5. There is a deep mark of injury towards left side of the ribs.
6. There is a mark of deep cut on the left elbow.
7. Blood stained injury near left ear.
8. Cut injury mark on upper and lower lip.
9. Injury mark on the left leg.
10. Injury on the right ankle.
Blood after oozing out from abdomen, left flank, left ribs, elbow and left ear is clotted. The injuries appear to have been caused with sharp edged weapon. There is a bluish injury mark on the neck towards right.
The apparent cause of death, according to the I.O., was the injuries caused with a sharp edged weapon. After recording of the statements (Ex. PQ) of the complainant (PW 25) and his son Vinay Kundu during the inquest proceedings, Investigating Officer Rattan Singh (PW 32) sent a VT message to call the dog squad, crime team, fingerprint expert and a photographer. The sniffer dog brought by Constable Jai Prakash from Ambala did not come out of the house and returned after taking a round thereof. Pawan Kumar (PW 9), photographer, took 12 photographs of the dead body from different angles/sides as per direction. Dr. K. P. Singh Khushwaha (PW 2), Assistant Director, FSL, Madhuban, Karnal, arrived with his team and a fingerprint expert. They scanned the scene of occurrence thoroughly and carefully. The Investigating Officer also prepared a site plan of the scene of occurrence. The site plan indicated the position of the dead body and also the locations of blood stains at different places. However, the blood stains could not be lifted. He also completed the proceedings under Section 174, Cr.P.C. and filled up the Form No. 25.35 (B). He recorded a statement of complainant Phool Kishan Kundu (PW 25) under Section 175, Cr.P.C. Complainant Phool Kishan Kundu reiterated his earlier statement (Ex. PQ) and further stated that the death of Smt. Usha Kundu was caused due to injuries caused with sharp edged weapons by some unknown persons, after entering into her house in order to commit theft. Some valuable articles, including jewelleries, were found to have been stolen away and the house had been locked from the outside. He identified the dead body. He was read over the statement, which he found to be correct. Another such statement recorded under Section 175, Cr.P. C. was that of Vinay Kundu son of Phool Kishan Kundu. He also reiterated the statement of his father as such. However, he has added that his uncle (husband of the deceased) was working as the Vice Chancellor of Shimla University and his deceased aunt was living alone in the house. He also identified the dead body. Thereafter, the dead body was sent for post-mortem examination with an application and the inquest report. Dr. S. N. Bansal (PW 1), Medical Officer, L. N. J. P. Hospital, Kurukshetra, along with Dr. D. S. Saini, S. M. O., Dr. K. K. Chawla, M. O. and Dr. Sushma Saini, lady M. O., conducted the post-mortem on the dead body at 9.00 a.m. on 21-2-1996. Apart from Dr. S. N. Bansal (PW 1), the prosecution has examined 32 more witnesses, as the entire prosecution case is based on the circumstantial evidence. The defence side has also examined 8 defence witnesses to counter the prosecution case. The other prosecution witnesses so examined are Dr. K. P. S. Kushwaha (PW 2), Assistant Director, FSL, Madhuban, Karnal. He inspected the scene of occurrence in the presence of the Investigating Officer in the intervening night of 20/ 21-2-1996. Dr. Hans Raj Aggarwal (PW 3) was the Assistant Director, FSL, Madhuban, Karnal. He had received 4 sealed parcels on 12-4-1996. Dr. S. K. Nagpal (PW 4) was the Senior Scientific Officer, FSL, Karnal. He had received certain parcels for examination. Dr. M. K. Goel (PW 5) was also an Assistant Director, FSL, Karnal. He proved his reports (Ex.PC and PC/1 to Ex. PC/4). He had also received certain parcels for examination. Dr. G. D. Mittal (PW 6) was the Medical Officer, L. N. J. P. Hospital, Kurukshetra. He had taken 10 mis. blood from the person of accused-appellants Vikram Singh and Surender Singh each, with the permission of the Tehsildar. Constable Sudeep Kumar (PW 7) prepared a scaled site plan (Ex. PM) of the scene of occurrence being Kothi No. F-2, Kurukshetra University, Kurukshetra. He prepared the site plan at the instance of Phool Kishan Kundu (PW 25) and Vinay Kundu and on the direction of the Station House Officer, Police Station City, Thanesar. He also prepared the site plan with correct marginal notes (Ex. PN) of Kothi No. E-16, Kurukshetra University, Kurukshetra, allotted to the father of accused Vikram Singh. He has withstood a rigorous cross-examination. Parveen Kumar (PW 8) was a dry-cleaner. His shop was known as Ashoka Dry-cleaning. He brought the relevant record of his shop. According to him, on 29-2-1996, accused Surender Singh visited his shop along with a coat (Ex. P46) and handed over the same to him for dry cleaning. Accused Vikram Singh also came to his shop on that date, i.e. 29-2-1996 with a jacket (Ex. P47). While handing over the jacket for dry-cleaning, accused Vikram Singh told that the jacket contained a stain of betel (Pan). He had issued two slips in respect of both the clothes, being Ex. P 48 and Ex. P 49. Pawan Kumar (PW 9) was the photographer. On 20-2-1996 at about 9.30 p.m. under the direction of the police, he took the photographs of the dead body (Ex. P-50 to Ex. P-62) and their negatives are Ex. P63 to Ex. P75. He also took the photographs of three fellows of different shoes. Smt. Kamlesh Sharma (PW 10) was the clerk-cum-cashier of State Bank of India, RECK Branch, Kurukshetra University, Kurukshetra. She submitted the record of bank account of deceased Smt. Usha Kundu. Account No. 188-2 stood in the joint names of the deceased and her husband Prof. C. L. Kundu. Her evidence was relevant inasmuch as the pass books of the deceased and her family members had been found to be one of the items seized from the accused. That apart, Indira Vikas Patras, cheque books and driving licence of deceased Usha Kundu had also been seized. Malkiyat Singh (PW 11) was produced in the witness box to show that he had sold his plot at Kurukshetra in the month of August, 1995, to Dalip Singh, father of accused Surender Singh, for a consideration of Rs. 50,000/-. Baldev Singh (PW 12) is the Assistant Sub-Inspector of Police. He had formally registered the FIR (Ex. PQ/2) on receipt of ruqa (Ex. PQ). On 2-3-1996, he had also got accused Vikram Singh and Surender Singh, medico legally examined by the Medical Officers of L. N. J. P. Hospital, Kurukshetra. Suresh Kumar Goel (PW 13) was a Financier and Transporter of Bhiwani. He knew Sanjay Kundu (IPS), son of the deceased. Being a local businessman, he used to visit all District Officers and, thus, he had met Shri Sanjay Kundu. On 29-2-1996 at about 2.00 p.m., maternal uncle of accused Vikram Singh, namely, Rattan Singh, with accused Surender Singh and Vikram Singh had come to him. He knew Rattan Singh for the past about 4-5 years. Rattan Singh had told him that the accused had committed murder of Usha Kundu at Kurukshetra and the accused be produced before the police. Accused Vikram Singh confessed the date, time and manner of commission of offence before him. He also stated that he was accompanied by Surender Singh, who gave a kirpan blow to the deceased. He also confessed that both of them had committed rape upon the deceased. He further confessed to have caused knife injury to the deceased. Since this witness was unwell, he told them that he could accompany them only on 2-3-1996, because he was suffering from some heart problem. He with Rattan Singh went to Kurukshetra on 2-3-1996 but came to know that the accused had already been arrested on 1-3-1996. Thereafter, they came across the police party and this witness gave his statement to the police. Laxmi Kant Sharma (PW 14) was a Teacher in Bhagwari Parsu Ram High School, Kurukshetra. He was a resident of Chakravarti Mohalla, Kurukshetra. On 18-2-1996 at about 9.30 p.m., he was taking tea at the Dhaba of one Madan Bhatia in front of Gate No. 3 of the University. Both the accused were seen present in the Dhaba and they had finished their meals. They appeared to be under the influence of liquor. This witness over heard the accused making plan to commit theft in the house of the deceased. Raj Kumar (PW 15) was engaged as a Peon in the University and he was attached with Prof. C.L. Kundu, husband of the deceased. He used to work at their residence in the morning and evening hours, after the office hours. He while accompanying Dr. Rajender Yadav had come to the residence of the deceased. On the instructions of Shri Yadav, this witness peeped through the ventilator and saw that the articles of the house were lying scattered and then the house of the deceased was broken open. Mrs. Sushrna Lall (PW 16) was the class teacher incharge of 11th Class, Section A, wherein accused Vikram Singh was her student. According to the attendance register brought by her in the Court, accused Vikram Singh had absented from the class between 16-2-1996 and 29-2-1996. She had marked his absence. Dr. Rahul Garg (PW 17) medico legally examined accused Vikram Singh and Surender Singh and found that there was nothing to suggest that they were incapable of doing sexual intercourse. Rajinder Yadav (PW 18) had received a telephonic message from Prof. C.L. Kundu at Shimla, husband of the deceased, on 20 2-1996. He met deceased Usha Kundu on 14-2-1996, then she had told him that she would be going to Jammu on or about 16-2-1996. On being told by Prof. C. L. Kundu that she had not visited Jammu and further on being requested, this witness started search of the deceased. He had also summoned Peon Raj Kumar. Raj Kumar. on peeping through the corridor, had informed him that the deceased way lying there. Then Phool Kishan Kundu and the police arrived there at about 4.30 p.m. He had broken open the door of the house on 1 he instruction of Shri C. L. Kundu, over telephone. H. C. Ram Parkash (PW 19) tendered his evidence on affidavit (Ex. PZ). So is the case with Constable Anil Kumar (PW 20). His affidavit is Ex. PAA. Similarly, Constable Shiv Ram (PW 21) also tendered his evidence on affidavit (Ex. PBB). The affidavit of Constable Bhagwan Dass (PW 22) is Ex. PCC. HC Dharma Pal (PW 23) was posted on 23-2-1996 at Police Station City, Thanesar. He also tendered his evidence on affidavit (Ex. PDD). He was the sole Head Constable of the Police Station City, Thanesar. During his absence on leave, one Ram Parkash was working in his place. On his return from leave on 23-2-1996, the case property was handed over to him. Constable Baltej Singh (PW 24) also tendered his evidence on affidavit (Ex. PEE). He had gone to the FSL, Madhuban, to bring the result of the analysis. Phool Kishan Kundu (PW 25) is the real brother of the husband of the deceased. He is the author of the FIR and is also a witness to the inquest and other proceedings. Sanjay Kundu (PW 26) is the son of the deceased. He being an IPS Officer was posted as ADC to the Governor, Haryana, on 20-2-1996. C. L. Kundu (PW 27) is the husband of the deceased. SI Jagdish Chander (PW 28) was associated with the investigation by the Investigating Officer, Inspector Rattan Singh. HC Sat Pal (PW 29) had accompanied the police party on 20-2 1996 at about 4.45 p.m. to the official residence of the deceased. HC Jagdev Singh (PW 30) was posted at Police Station City, Thanesar in March, 1996 and in his presence. Inspector Sewa Sings had interrogated accused Vikram Singh on 11-3-1996. The accused had made a disclosure statement. Again on 12-3-1996, Inspector Sewa Singh had interrogated both the accused, Vikram Singh and Surender Singh. Ultimately, pursuant to the disclosure statements made by the accused, some incriminating articles were recovered. Inspector Sewa Singh (PW 31) was posted as District Inspector, Kurukshetra in March, 1996. As there was a death in the family of Inspector Rattan Singh, he had been handed over the investigation. Inspector Rattan Singh (PW 32) was posted as Station House Officer, Police Station City, Thanesar, on 20-2-1996, when the dead body of the deceased was recovered from her official residence. Ram Niwas (PW 33) was the Laboratory Assistant. He had accompanied K. P. S. Khushwaha, Assistant Director, FSL, Madhuban, on 20-2-1996, to the scene of crime. He had taken certain photographs of the scene of crime, being Exs. P7 to P9, P13, P15, P16, P19 and P20.
3. Dr. S. N. Bansal (PW 1) has stated in his evidence that the information furnished by the police (obviously as per inquest) was that the death had resulted from the injuries caused with a sharp edged weapon. Post-mortem staining was present on the back. Rigor mortis was partly present in both the knee joints and toes but was absent in neck, upper limbs and hip joints. Both the hands were partially clinched. The clothes were blood stained at different places. He has noticed the following injuries:
1. There was reddish contusion around mouth covering both upper and lower lips, on right side, it had two projections, 2 cms long and 1 cm in breadth. Width of the contusion was varying from 1 cm x 2 cms on the inner side of both lips. There were reddish abrasions and contusions. This contusion was also extending to both alae nasi of nose. There was infiltration of blood in the contusion.
2. Two reddish contusions, one on each side of bridge of nose, 2 cms x 1 cm on right side and 2 x 0.75 cm on left side. Infiltration of blood was present in the underlying tissues.
3. An incised wound 1.2 cms x 0.3 cm on the left side of face, 3 cms in front of left ear. It was subcutaneous tissue deep. Clotted blood was present.
4. Two reddish contusions with abrasions on right side of neck, size was 3 cms x 1 cm medially and 2.5 cms x 1 cm laterally. These were transverse and 2 cms. above the clavicle. Infiltration of blood was present in the underlying tissues.
5. An incised wound 3 cms x 1 cm in front of left side of chest, 7 cms from the mid line in the 7th intercoastal space. It was vertically placed and was muscle deep. Both ends were clean cut. Clotted blood was present.
6. A reddish brown contusion 0.75 cm in diameter on the front of left side of chest, 1 cm. below Injury No. 5. Infiltration of blood was present in the tissues.
7. An incised wound 4.5 cm x 1 cm on the left side of abdomen at the level of anterior auxiliary line, vertical, 7 cms below injury No. 6. A tag of omentum was protruding out of this injury. Both the ends were clean cut.
8. An incised wound 4.5 cms x 1.7 cms on the left side of abdomen, 1 cm. medially to anterior superior iliac spine. A loop of small gut was coming out of this injury. Both the ends of the wound were clear cut.
9. An abrasion 2 cms x 1 cm on the upper part of left leg on tibia tuberocity.
10. An abrasion 3.5 cms x 1 cm, vertical, on the lateral aspect of right knee.
11. An incised wound 8.5 cms x 1 cm on the back of left elbow, transverse, muscle deep. Clotted blood was present. Corresponding to injury Nos. 5, 7 and 8, there were corresponding cut in the maxi and there was also corresponding cut in the sweater against injury Nos. 5, 7 and 11.
Cranium and spine Skull and vertebrae were healthy. Membrane, brain and spinal cord were healthy. Thorax Walls, ribs and cartilage, were healthy except the injuries described above. Rest of the organs in the thorax were healthy. Heart was empty on both sides.
Abdomen Abdominal wall has slight patch of greenish colour on both iliac fossae. Foul smell was coming out on opening the abdomen. Peritoneum-the peritoneal cavity was full of dark coloured blood and blood clots. There was also semi-digested food material in upper part.
Mouth, Pharynx and Oesophagus Mouth was as described above and rests were healthy. Stomach contained semi-digested food material. Food particles were not recognisable. Stomach has two cuts, one on left lateral wall and another on anterior aspect of right side. On left lateral side, there was cut 1.5 cm. long and on right anterior side, it was 1 cm. long.
Small intestine contained chyle and gases. There was an incised wound 1 cm. long in the small gut and 0.75 cm long cut in the mesentery, where clotted blood was present.
Large intestine contained faecal matter and foul smelling gases, showed early putrefaction changes.
Liver was healthy, pale showed early putrefaction changes over its superior surface.
Spleen-there was 2 cms long cut on its lower part. Clotted blood was present near the injured part. Size of the spleen was normal.
Kidneys were healthy and pale.
Bladder was healthy and pale and it contained 30 to 50 mls. of urine.
Organs of Generation Perineal hair were scanty, which were cut and sent for chemical analysis. Labia majora and labia minora were healthy. There was whitish discharge present in and around vulva, which were taken on two swabs and sent for chemical analysis. The vagina admitted two fingers easily. Hymen was present only in tags. No fresh injury was seen.
(Emphasis supplied).
On her vaginal examination, cervix was backward, uterus was anteroverted-. It was of multipara size. Fornices were free. Two slides were prepared from posterior fornices and sent for chemical examination.
In the opinion of the Board of Doctors, cause of death was shock and haemorrhage as a result of the injuries described herein-above. The injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. The opinion of rape was to be given after receiving the report of the FSL. According to the doctors, the probable time between the injuries and the death was within 2 hours and between the death and the post-mortem was within 36 to 72 hours. The doctor (PW 1) has clarified that the post-mortem was conducted on the request letter of the police (Ex. PA), sent along with inquest proceedings papers (Exs. PA/1 to PA/4) and carbon copy of the FIR (Ex. PA/5). PW 1 has proved the post-mortem report (Ex. PA/6). He also proved diagram (Ex. PA/7), showing the location of the injuries. He has stated that on 1-5-1996, on the request of the police (Ex. PB), a Board of Doctors (consisting of four doctors) had gone through the chemical examiner's report (Ex. PC). They noticed presence of human semen on glass slides, having taken the smear from posterior fornix and swabs from vagina and perineal hair. The Board of Doctors opined that the sexual intercourse was committed on the deceased. They gave a report (Ex. PB/1), duly signed by PW 1, Dr. D. S. Saini, Dr. S. Saini and Dr. K. K. Chawla. The Board of Doctors had also opined that the injury Nos. 3, 5 and 11 mentioned in the post-mortem report dated 21-2-1996, were possible from the weapons of offence, while injury Nos. 7 and 8 could be caused with knife. The team of doctors further opined on a police request (Ex. PE) that injury Nos. 1, 2 and 4 were possible as a result of attempt to smother with the help of hands. Injury Nos. 9 and 10 could result from dragging of the body. Injury No. 6 could result from the handle of the kirpan. The doctor has clarified that Ex. P6, a weapon of offence, could be called dagger as well as knife. According to him, injury Nos. 3, 5 and 11 may be possible with any knife, having sharp edges, even with a kitchen knife. He has clarified that no police officer ever came to him for obtaining his opinion in respect of the injuries, before 1-3-1996. He denied any influence of the police. He has also stated that the vagina was moist due to whitish discharge, although no injury was noticed on any of the thighs near the private parts. The team of doctors could not detect any injury in, on or near the private parts. However, they had noticed three injuries on the face. The doctor has reiterated that the semen was present in the perineal hair. In his cross-examination, the doctor has described the weapons of offence, as kirpan (Ex. P5) and knife (Ex. P6). They were not similar in shape. The knife (Ex. P6) was straight, whereas, the kirpan (Ex. P5) was curved. The width of the blades was also not similar. He has denied the defence suggestion that the injuries noticed, in the opinion of the doctors (Ex. PD/1 and Ex. PE/1), were not possible from kirpan (Ex. P5) and knife (Ex. P6). The doctor has further clarified that injury Nos. 3 and 11 could be caused with any of these weapons. According to him, dagger (Ex. P6) is sharp on both the sides with a sharp point. He has also stated that kirpan (Ex. P5) is sharp on one side only and the other side is blunt. He has further clarified that injury Nos. 5, 7 and 8 have been caused in a thrusting manner. These injuries could be caused with the weapons, having sharp edges on both sides, like Ex. P6. The doctor has clarified that though the death could have occurred between 36 to 72 hours of the post-mortem but the time duration would not mean that the rigor mortis could not have been present on the dead body. He has further clarified that rigor mortis remains present up to 48 hours but it is not a hard rule, as the occurrence took place in the month of February.
4. We have heard learned Counsel for the parties and perused the record.
5. Learned Counsel for the appellants amongst other contentions submitted that the report of the DNA test placed on file as Ex. DLL, Ex. DLL/1 and Ex. DLL/2 showed that the DNA recovered from all the exhibits had originated from different individuals. This is also evident from the evidence of DW8, Dr. G. V. Rao. Secondly, it was also contended that finger prints of the appellants were not compared by Gurmej Singh (DW 1), who had inspected the spot and found the finger prints on three items. Thirdly, the conviction of the appellants was based only on circumstantial evidence. One of such circumstances is the foot prints noticed on a leather bag allegedly found lying at the spot by Dr. K. P. S. Kushwaha (PW 2). The impressions were faint and partial. Though the bag was picked up and taken to the laboratory but it was not duly sealed at the spot, nor was a seizure memo in respect thereof prepared, nor a witness to the seizure was cited. The bag was returned to the police station unsealed on 23-2-1996. The bag was then sent to Dr. S. K. Nagpal (PW 4), who, later on, submitted his report (Ex. PJ) and concluded that the foot prints found on the bag could be that of shoes allegedly recovered from the accused-appellants at the time of their arrest. According to learned Counsel, the opinion as such does not appear to be conclusive in nature and was of no use to the prosecution. The next circumstance is the evidence of Laxmi Kant Sharma (PW 14), a teacher, who, on 18-2-1996, had overheard the accused sitting at a tea Dhaba Of Madan Bhatia of 3rd gate of the University at 9.30 p.m., and planning to commit theft in the house of the deceased. However, the evidence of this witness was recorded only on 3-3-1996 and he did not inform any one about their plan. Hence, the evidence of this witness should not be placed reliance. The third circumstance is the evidence of Rajinder Yadav (PW 18). Shri C. L. Kundu, husband of the deceased, had phoned this witness on 20-2-1996 to find out as to why his telephone calls were not being attended by the deceased. He had asked Raj Kumar (PW 15) to peep into the room of the deceased and then had broken open the door by removing the lock. On 18-2-1996, he had also seen appellants near the Teachers Club in the University. However, he disclosed this fact only on 1-3-1996 after the accused-appellants were arrested. This witness has admitted that Dr. C. L. Kundu (PW 27) was his guide in his Ph.D. He had further not told the factum of seeing the assailants between 20-2-1996 and 1-3-1996, hence, his evidence is also said to be unreliable. The fourth circumstance is the extra judicial confession made by accused-appellants Vikram Singh and Surinder Singh on 29-2-1996 before Suresh Kumar Goel (PW 13). This witness is a resident of Bhiwani, whereas the occurrence took place at Kurukshetra. He stated that Rattan Singh, being the maternal uncle of accused Vikram Singh, had come to him on 29-2-1996 at Bhiwani at 2.00 p.m. along with both the appellants/assailants. He had enquired separately from both the appellants about the incident and they had confessed before him that on the intervening night of 18-2-1996 and 19-2-1996 at 10.30 p.m., they had committed rape on the deceased and then had also murdered her with knife and kirpan. They further confessed to have committed theft of scooter and other articles. However, this witness being a heart patient could not produce them immediately as he was to be medically checked up on 1-3-1996. On 2-3-1996, he came to the house of accused-appellant Vikram Singh at Kurukshetra with Rattan Singh and thus came to know that the said two appellants had already been arrested on 1-3-1996. Not withstanding the information, this witness is challenged to have not shown his prior acquaintance with Rattan Singh, who is a resident of a place situated at a distance of 30 kms. from Bhiwani. This witness has stated that he met the police on 2-3-1996 by chance and having seen the police, he stopped the Inspector, who was again not known to him, and narrated the factum of extra judicial confession. This witness knew Shri Sanjay Kundu, the son of the deceased and also an IPS Officer, since he was posted as S. P., Bhiwani, in the year 1995. He had met him on 10-15 occasions in connection with various works. It is contended that this witness had earlier also appeared as a witness in a murder case. Hence, in this background, it is submitted that he is not a reliable witness. Yet another circumstance is the recovery of jewelleries and other articles from the appellants. According to learned Counsel, the appellants were the residents of Kurukshetra and accused-appellant Vikrarn Singh resided within the University Campus, hence, there was no occasion for them to have suddenly appeared at Gate No. 2 of the University at 10.15 a.m. on 1-3-1996, carrying all the articles in bags on their shoulders. Inspector Rattan Singh (PW 32) with police party met him in front of the University and unexpectedly Sanjay Kundu (PW 26) also appeared there. That is how the accused-appellants were arrested. On search of their bags, amongst other things, a tea pot, a sugar pot, a milk pot, a kettle, A. C. adapter, registration certificate, a telephone, driving licence, cheque book, pass books, Kisan Vikas Patra, and certain jewelleries were recovered. According to learned Counsel, looking at the items recovered said to be carried by the accused-appellants in their bags, the recovery itself appears to be unbelievable and manipulated. That apart, the explanation given by Sanjay Kundu, an IPS Officer (PW 26), for his sudden presence at the time of arrest and the recovery also appears to be improbable, inasmuch as he has stated that he had gone for a walk at about 10.00 a.m. The next circumstance is the recovery of a knife (Ex. P6) from accused-appellant Vikram Singh and a kirpan (Ex. P5) from accused-appellant Surender Singh. The appellants were arrested on 1-3-1996 by Inspector Rattan Singh (PW 32). He interrogated accused Vikram Singh on 2-3-1996, who made a disclosure statement about the concealment of knife on the eastern side of Bhakra Canal. The same day, accused-appellant Surender Singh was also interrogated and he also disclosed that he had kept concealed a kirpan and a lighter inside his residential house, but no recovery could be effected. On 11-3-1996, accused-appellant Vikram Singh was again interrogated and he disclosed that he had kept the knife concealed in bushes and the same was also got recovered by him the same day. The alleged recovery of kirpan from accused Surender Singh was made on 8-3-1996. However, there was no explanation as to why accused-appellant Vikram Singh was interrogated the second time and as to why no attempts were made to get the alleged weapons recovered on 2-3-1996 or 8-3-1996 or 11-3-1996. Further, it is also submitted that no independent witness was joined at the time of interrogation or the recovery of weapons. Even the Serologist report does not give a definite opinion as regards the presence of human blood on the weapons of offence.
6. On the other hand, learned Counsel for the State and the complainant during the course of reply laid emphasis on the circumstances, like murder of the deceased inside her house; opportunity and planning to commit the crime, including the circumstances of last seen and overhearing of the planning; motive to commit the crime; absconding of the accused after crime; scientific evidence with regard to trespassing of the appellants into the house of the deceased and connecting them with the offence; recovery of stolen articles; identification of such articles by Sanjay Kundu (PW 26) and C. L. Kundu (PW 27); recovery of weapons of offence at the instance of the accused, the evidence to connect the weapons of offence with the accused; recovery of key from accused Surender Singh (by which the main gate of the house of the deceased was locked); extra judicial confessions, and some other relevant circumstances.
7. On a careful consideration of the rival submissions, we notice that undisputedly the murder of the deceased, Smt. Usha Kundu, took place inside her house No. F-2, Kurukshetra University Campus Kurukshetra, on the intervening night of 18/ 19-2-1996. It is also established that the accused committed robbery in the house; rape on the deceased, and also her murder. The relevant pieces of evidence on this point are the statements of Raj Kumar (PW 15), Rajinder Yadav (PW 18), Phool Kishan; Kundu (PW 25), Sanjay Kundu (PW 26) and C. L. Kundu (PW 27). Further, accused". Vikram Singh resided in the adjacent house No. E-9 allotted to his father. Though, accused Surender Singh was a resident of Didar Nagar, Kurukshetra but he was an associate of accused-Vikram Singh. He had also faced trials in theft cases, vide Exs. DEE, DEF, DGG, DHH, DJJ and DKK. Other accused Yadvinder Singh is the sister's husband of accused-Surinder Singh (other than Manjit Kaur), and accused Manjit Kaur is the sister of accused Surender Singh. It also appears that the accused-appellants had opportunity to commit the offence and they planned to do so. The accused-appellants knew that Smt. Usha Kundu was living alone in her house as her husband Shri C. L. Kundu had taken over as the Vice Chancellor of Himachal University at Shimla on 12-1-1996. The accused were overheard planning at a Dhaba, known as Madan Dhaba situated opposite Gate No. 3 of Kurukshetra University on the night of 18-2-1996 at 9.30 p.m. The evidence led by the prosecution in this regard is that of Laxmi Kant Sharma, a teacher (PW 14). Both the accused thereafter left the Dhaba and headed towards Gate No. 3 of the University, which also leads to the scene of occurrence, being House No. F-2. Accused-appellant Vikram Singh, who was staying in the vicinity of the deceased, was aware that the deceased was living alone with a lot of valuable articles and jewelleries. Thus, there was a motive, an opportunity and also a planning to commit the offence. PW 14, Laxmi Kant Sharma, at that time, did not disclose the conversation he had overheard between the two accused to any one else, as he did not know the deceased, Mrs. Usha Kundu. It was only after the arrest of accused-appellants on 1 -3-1996 and thereafter on their interrogation on 2.-3-1996 that the statements of Madan Gopal Bhatia, Dhaba owner, and this witness, Laxmi Kant Sharma (PW 14), were recorded. Further, this witness, being the Proprietor of Parsu Ram High School, also appears to be a respectable person. He also stands corroborated in material particulars by Rajinder Yadav (PW 18), who had likewise seen both the accused on the same night at about 10.00 p.m. near the Teachers Club in the University Campus. They were proceeding at that time on a road leading to the scene of occurrence, i.e., House No. F-2. He has reiterated his stand in his cross-examination. Rajinder Yadav (PW 18) is a natural witness, being a Lecturer in the University and also a resident of the University Campus. As regards the motive, it is clearly established from the recovery of the stolen articles that initially the accused had the motive to commit theft by criminally trespassing into the dwelling house of the deceased but in the process of committing that offence, they committed heinous offences of murdering a helpless middle aged lady, after committing rapping on her and, thus, also the offence of robbery. That apart, there is another incriminating circumstance against the accused inasmuch as they had absconded after committing the offences. Accused-appellant Vikram Singh had remained absent from his school for the purpose of planning the commission of crime and had also absconded thereafter from 16-2-1996 to 29-2-1996. This is found proved from the evidence of Sushma Lal (PW 16), a teacher in the school, where accused-appellant Vikram Singh was studying. She was the Incharge Class Teacher of his class and also knew the accused. She used to take the roll call of his class and produced the attendance register for the month of February, 1996, in the Court. His Roll No. was 43. The register disclosed the absence of accused Vikram Singh between 16-2-1996 and 29-2-1996. Accused-appellants Vikram Singh and Surender Singh were, however, arrested on 1-3-1996, whereas date of occurrence is the intervening night of 18/19-2-1996. Smt. Sushma Lal (PW 16) has stated the entire facts on oath. Thus, there was a clear planning and motive to commit the offence. As argued by learned Counsel for the complainant, this circumstance finds support from the observations of Hon'ble the Apex Court in the judgment reported in 1972 Cri LJ 7 : AIR 1972 SC 54 (Udaipal Singh v. State of U.P.), which on reproduction, read as under (para 11):
In cases where only circumstantial evidence is available at the outset, one normally starts looking for motive and opportunity to commit the crime. If the evidence shows that the accused have a strong enough motive, had the opportunity of committing the crime and the established circumstances on the record considered along with explanation, if any, of the accused exclude reasonable possibility of anyone else being the real culprits then the chain of evidence can be considered to be so complete so as to show that within all probabilities, the crime must have been committed by the accused and he may be held guilty.
As regards the scientific evidence with regard to the trespassing into House No. F-2, the scientists from Forensic Science Laboratory, Madhuban, were immediately called through radio message. They inspected the scene of occurrence and collected scientific evidence. Dr. K. P. S. Kushwaha (PW 2), Assistant Director, FSL, Madhuban, noticed faint and partial shoe impressions on the floor towards the head of the dead body vide photograph (P 13). Its negative is Ex. P14. He also noticed a trail of blood showing that the body was dragged out of the drawing room after inflicting the injuries. This is shown in the photographs (Exs. P-15 and P-16). Their negatives are Exs. P-17 and P-18. That apart, one leather bag lying on the floor also had faint and partial shoe impressions as per photographs (Exs. P-19 and P-20). Their negatives are Exs. P-21 and P-22. The bag was taken to the laboratory for taking a detailed photograph. Tracing of shoe impression from the floor was also made. The entire exercise was completed on the intervening night of 20/21-2-1996. The bag was returned to the Police Station, Thanesar, on 23-2-1996, after fixing transparent tape on the surface. It was done immediately before collecting other evidence from the spot. Although the foot prints were taken on the intervening night of 20/21-2-1996, but the shoes, being Ex. P90/1-2 and Ex. P41/1-2, were seized from the accused on the date of their arrest, i.e., 1-3-1996. Thus, there was no chance of tampering with and padding out by the Investigating Officer. Tracings and the foot prints collected during the intervening night of 20/21-2-1996, tallied with shoes taken into possession on the arrest of, accused-appellants Vikram Singh and Surender Singh on 1-3-1996. Photographer, Ram Niwas (PW 33) also proved the photographs taken by him. Dr. Hans Raj Aggarwal (PW 3), Assistant Director, FSL, Madhuban, made trial cuts on the maxi (Ex. P1) of deceased, Smt. Usha Kundu, with the weapons recovered from accused Vikram Singh (knife-Ex. P6) and Surender Singh (kirpan-Ex. P5). Trial cuts were compared with the crime cuts and after miscroscopic examination, it was found that these two weapons had been used in the commission of offence. The reports of Dr. Hans Raj Aggarwal (PW 3) are Exs. PH, PH/ 1 and PH/2. S. K. Nagpal (PW 4), Senior Scientific Officer, FSL, Madhuban, has categorically said in his cross-examination that Exs. P37 and P38 are the foot prints of the shoes (Exs. P40/1 and P40/2), taken out of Parcel No. 13 and Exs. P36 and P39 are the foot prints of the shoes (Exs. P41/1 and P41/2), taken out of Parcel No. 14. The report submitted by this witness is Ex. PJ. Thus, it appears that accused-appellants Vikram Singh and Surender Singh trespassed into the house of the deceased and committed the crime. Moreover, in judgment reported in AIR 1997 SC 2960 : 1997 Cri LJ 3567 (Mohammad Aman etc. v. State of Rajasthan), Hon'ble the Apex Court has held that foot prints identification is not a fully developed science but it can be used to reinforce other evidence. In the present case, there is nothing to discard the foot prints because it was directly taken by the Scientists of the FSL, Madhuban, from the scene of occurrence and there was absolutely no scope for its being tempered with. Thus, the identity of the accused persons also stands established. We have also carefully examined the circumstances, like (i) recovery of stolen articles, (ii) their identification by Sanjay Kundu (PW 26) and C. L. Kundu (PW 27); (iii) recovery of weapons of offence and, recovery of the key from accused-appellant Surender Singh, by which the main gate of House No. F-2 was locked after committing the offence; and (iv) the arrest of accused-appellants Vikram Singh and Surender Singh, as under the pressure of the police, they were trying to remove the stolen articles from the University Campus area. We have noticed that the recovery of the stolen articles was made on the date of their arrest, i.e., 1-3-1996, and these items were identified by Sanjay Kundu (PW 26) and C. L. Kundu (PW 27) before an Executive Magistrate/Tehsildar on 5-4-1996. This circumstance against the accused clinches the case of the prosecution. The weapons of offence, namely, kirpan (Ex. 5) and knife (Ex. P6), were recovered from accused Surender Singh and Vikram Singh on 8-3-1996 and 11-3-1996, respectively. They had made their disclosure statements before Inspector Rattan Singh (PW 32) vide Exs. POO and PNN, respectively. Dr. S. N. Bansal (PW 1) had opined after examining the weapons of offence that Injury Nos. 3, 5 and 11 mentioned in the post mortem report No. 51 /96 dated 21-2-1996 were possible with both these weapons, while injury Nos. 7 and 8 were possible with knife (Ex. P6). He has further mentioned that Injury No. 6 could result with the handle of kirpan (Ex. P5). That apart, the weapons were found to have blood stains but due to insufficient quantity of blood, the blood group could not be determined. The cut marks on maxi (Ex. P1) were made by the two recovered weapons, i.e., kirpan (Ex. P5) and knife (Ex. P6), as per the evidence of Dr. Hans Raj Aggarwal (Ex. P3). Thus, the weapons recovered from accused-appellants Vikram Singh and Surender Singh were used in committing the offence. The recovery of key (Ex. P 164) from accused appellant Surender Singh of the lock (Ex. P99), which they had put on the outer door of House No. F-2 after committing the offence, further fortifies the conclusion of their complicity in the crime. That apart, the accused did not lay any claim over the property or articles and they also failed to give any reasonable explanation for their being in possession of the stolen articles. This also leads to the inference of guilt of the accused alone. As regards the evidence of Dr. G. V. Rao (DW 8) on the question of DNA test for the purpose of establishing the identity of the accused, it appears that the semen slides and the swabs along with two underwears of these two accused were sent for DNA testing. DNA report (Ex. DLL, Ex. DLL/1, Ex. DLL/2) was not produced before the Court for placing reliance by the prosecution, as the report was not signed by this witness, nor did it bear the seal of the institution. Dr. G. V. Rao (DW 8) has only signed the forwarding letter and not the report. He explained that he did not think it necessary to sign the report. That apart, he has also admitted that he did not have the letter of authorisation (to receive, examine and opine) at that time with him. He has further stated that this fact is also not mentioned by him in his report (Ex. DLL). Thus, it is relevant to note that the samples were sent to another person but strangely enough the report was submitted by Dr. G. V. Rao. Further, the samples were taken in February, 1996, and they were examined by the FSL, Hyderabad, in December, 1996. There is no proof of their preservation for such a long period. Under the circumstances, the samples would have deteriorated being unfit for analysis. This is further corroborated by the fact that DNA samples of the blood of accused-appellants Vikram Singh and Surender Singh did not tally with their own DNA samples of their seminal stains. Our finding as such also gets support from para 3.2 (Sample Preservation) of the book 'DNA in Forensic Science' by J. Robertson, A. M. Ross & L. A. Burgoyne, wherein the methods of preservation have been mentioned as under:
(1) The safest and simplest procedure for preserving samples is freezing.
(2) The best temperature to store biological materials for an unlimited period is at -70 degree C or over liquid nitrogen. (3) For a period in the range of a few weeks it can be stored at -2 degree C preferably in frost free freezer. (4) After a sample has been frozen, it should not be thawed and frozen repeatedly since this will promote cell breakage and facilitate DNA degradation.
As regards the extra judicial confession, accused Vikram Singh along with accused Surinder Singh went to Rattan Singh, the maternal uncle of accused Vikram Singh. Rattan Singh took them to Suresh Kumar Goel (PW 13) of Bhiwani on 29-2-1996 at 2.00 p.m. Suresh Kumar Goel (PW 13) is running his business of finance and also owns a transport company at Bhiwani. Both the accused separately and individually confessed before him to have committed the offence of theft and murder before this witness. They were to be produced before the police on 2-3-1996 because PW 13 had to go to his doctor on 1-3-1996 for examination of heart problem. However, on 2-3-1996 when Rattan Singh and Suresh Kumar Goel (PW 13) came to Kurukshetra for producing the accused and went to accused-appellants Vikram Singh's house in Kurukshetra University, they were told that both the accused had already been arrested by the police on 1-3-1996. But, they met the police party at 4/4.30 p.m. near the crossing of the Courts and Suresh Kumar Goel (PW 13) got his statement recorded. It has come in the evidence of PW 13 that he knew Rattan Singh, the maternal uncle of accused Vikram Singh, for the last 4-5 years. In his cross-examination, this witness has clarified that he had been going to the village of Rattan Singh (Village Gopi) after every 20/25 days and that he had been visiting Attar Singh of Village Gopi and had met Rattan Singh there. Hence, this witness appears to be worthy of reliance. Further, the relationship of Rattan Singh as the maternal uncle of accused-appellant Vikram Singh is also not denied. Moreover, the accused side has produced 8 defent witnesses from Rajasthan, Hyderabad and Haryana, but has not dared to produce the real uncle Rattan Singh of accused Vikram Singh to impeach the credibility of the extra judicial confession. This itself goes to show that the extra judicial confession made before PW 13 is trustworthy, honest and reliable. Besides, there was no prior enmity between the accused side and the complainant side for false implication of the accused. Even the father of accused-appellant Vikram Singh, namely, Hoshiar Singh and C. L. Kundu, husband of the deceased, knew each other for the last 10 years. They both were Professors in the Kurukshetra University and were living in the vicinity. Their relationship was cordial. This fact is also supported by the fact that on the appointment of Shri C. L. Kundu as the Vice Chancellor of the Himachal University, Shimla, on 12-1-1996, Shri Hoshiar Singh, father of accused Vikram Singh wrote a letter to Shri C. L. Kundu, congratulating him. Shri C. L. Kundu in turn had extended an invitation to Shri Hoshiar Singh on 19-1-1996 to act as an expert member of the selection committee in the subject of Public Administration in the Himachal University, Shimla. In reply thereto, Shri Hoshiar Singh had written a letter (Ex. PUUU) to C. L. Kundu dated 22-1-1996, conveying his thanks and also accepted the invitation to participate in the selection committee meeting on 28-2-1996 at 11.00 a.m. These facts are elaborately discussed in the trial Court's Judgment (para Nos. 57 and 58), therefore, there was no motive for false implication. Had it been a case of false implication, Shri Hoshiar Singh would have approached the higher authorities but nothing was done. Further, Shri C. L. Kundu, husband of the deceased, who was the Vice Chancellor, and Shri Sanjay Kundu, his son, who was an IPS Officer, would not have falsely implicated the accused and let the real culprits get away, particularly in the background of cordial relationship between the two families. On the question of unexplained possession, Judgment of Hon'ble the Apex Court (Baiju v. State of M.P.), and on the point of identification, the judgments as reported in (a) (Kallash and Ors. v. State of U.P.) and (b) 1997 Cri LJ 534 (State of M.P. v. Mukand alias Kundu Mishra) also apply in the facts and circumstances of this case. Thus, the chain of circumstances as set out above, is complete and each circumstance is found to be individually proved, so is the chain. Furthermore, the recovery of gold ring (Ex. P 183) from the possession of accused Manjit Kaur which she failed to explain, establishes the charge levelled against her. Similarly, a gold chain (Ex. P 182) was recovered from accused Yadvinder Singh at the time of his arrest, which was identified by the family members of deceased as belonging to them. Thus, accused Manjit Kaur and Yadvinder Singh have been rightly held guilty of committing offence under Section 411, I.P.C.
Hence, we do not find any merit in these criminal appeals, namely, (i) Cri. Appeal 364-DB of 1989 (Vikram Singh v. State of Haryana), (ii) Cri. Appeal No. 400-DB of 1998 (Surender Singh v. State of Haryana), (iii) Cri. Appeal No. 505-SB of 1998 (Yadvinder Singh v. State of Haryana), and (iv) Cri. Appeal No. 520 SB of 1998 (Manjit Kaur v. State of Haryana), and, thus, the same are hereby dismissed. As regards Cri. Revision No. 1142 of 1998 (Phool Kishan Kundu v. Vikram Singh and others), for enhancement of sentence, in view of the fact that the offence was committed way back on 18/19-2-1996, it would not be expedient in the interest of justice to convert the sentence of life imprisonment into that of death. Hence, the same is also dismissed. Resultantly, the impugned judgment is affirmed.