Punjab-Haryana High Court
State Of Haryana vs Padam @ Parmod & Ors on 19 March, 2019
Equivalent citations: AIRONLINE 2019 P AND H 291
Bench: A.B. Chaudhari, Surinder Gupta
MRC No.2 of 2016 and other appeals -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: March 19, 2019
MRC No.2 of 2016
State of Haryana
......Appellant
Versus
Padam @ Parmod and others
....Respondents
CRA-D-90-DB of 2016 (O&M)
Sunil @ Mada
......Appellant
Versus
State of Haryana
....Respondent
CRA-D-91-DB of 2016 (O&M)
Sunil @ Sheela
......Appellant
Versus
State of Haryana
....Respondent
CRA-D-99-DB of 2016 (O&M)
Sarvar @ Billu and another
......Appellants
Versus
State of Haryana
....Respondent
CRA-D-107-DB of 2016 (O&M)
Padam @ Parmod
......Appellant
Versus
State of Haryana
....Respondent
CRA-D-108-DB of 2016 (O&M)
Manbir @ Manni
......Appellant
Versus
State of Haryana
....Respondent
CRA-D-187-DB of 2016 (O&M)
Rajesh @ Ghochru
......Appellant
Versus
State of Haryana
....Respondent
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CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Deepak Sabharwal, Addl. AG, Haryana.
Mr. Vinod Ghai, Senior Advocate with
Ms. Kanika Ahuja, Advocate for the convict-Sunil @ Mada.
Mr. N. S. Shekhawat, Advocate for convict-Sarvar @ Billu.
Mr. Rajiv Vij, Legal Aid Counsel
for convict-Rajesh @ Ghochru.
Mr. Pradeep Virk, Advocate
for the convicts-Padam @ Parmod and Manbir @ Manni.
Mr. Arun Sharma, Advocate for convict-Sunil @ Sheela.
****
A.B. CHAUDHARI, J
By this common judgment and order, above said all the
appeals/MRC are being disposed of.
2. Being aggrieved by the judgment/order dated
18.12.2015/21.12.2015, in Sessions Case No.61/2015, passed by the
learned Additional Sessions Judge, Rohtak, by which the
appellants/accused persons, namely Padam @ Parmod, Pawan, Sarwar @
Billu, Manbir @ Manni, Rajesh @ Ghochru, Sunil @ Mada and Sunil @
Sheela were convicted for commission of offence punishable under
Sections 302, 376-D, 366, 201 read with Section 120-B of the Indian
Penal Code, 1860 (for short 'IPC') and sentenced, the present appeals were
filed by the appellants/accused persons. They have been sentenced as
under:-
"I. The convicts Rajesh @ Ghouchru, Pawan, Sunil @ Mada,
Padam @ Parmod, Sarwar @ Billu, Manbir @ manni and
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Sunil @ Sheela are sentenced to death for offence punishable
under section 302 read with Section 120-B of Indian Penal
Code. Accordingly the convicts be hanged by neck till they are
dead. Fine of `50,000/-to each of the convict is also imposed
and in default of payment of fine such convict shall undergo
imprisonment for a period of two months.
II. Life imprisonment which shall mean imprisonment for the
remainder of their natural life for the offence under section
376-D read with Section 120-B of Indian Penal Code and fine
of `50,000/- each. In default of payment of fine simple
imprisonment for a period of two months.
III. Ten years rigorous imprisonment for offence under section
366 read with Section 120-B of Indian Penal Code and fine of
`20,000/- each. In default of payment of fine, simple
imprisonment for a period of two months.
IV. Seven years rigorous imprisonment for offence under section
201 read with Section 120-B of Indian Penal Code and fine of
`20,000/- each. In default of payment of fine, simple
imprisonment for a period of two months.
V. Life imprisonment for offence under section 377 of Indian
Penal Code and fine of `50,000/- to convict-Rajesh @
Ghochru. In default of payment of fine, simple imprisonment
for a period of two months."
The sentence of death having been awarded, reference has
been made to this Court registered as MRC No.2 of 2016. Hence, both, the
appeals and MRC are taken together for disposal.
FACTS
3. Briefly stated, the prosecution case is that PW1-Surat Singh
noticed a dead body lying in the field under his cultivation and some dogs
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were gnawing upon it and was also partially eaten. PW41-ASI Baje Singh
along with PW17 HC Satish No.73 reached the spot and carried out initial
formalities and also recorded the statement of PW1-Surat Singh leading to
registration of FIR No.57 dated 04.02.2015, for offence punishable under
Sections 302 and 201 of IPC, at Police Station Sadar Rohtak. They
recovered blood stained earth, strands of hair, pieces of blood stained
stones, one Salwar and one Sweater of black and white strips. Thereafter,
they removed the dead body and kept in the mortuary where PW2-Amar
along with PW5-Janki saw the dead body and they identified it as that of
their sister (later referred to as 'M') who went missing since 01.02.2015.
PW5-Janki had filed a report registered as FIR No.22 dated 01.02.2015,
under Section 346, at Police Station PGIMS, Rohtak with the description
of the deceased as height 4'9" and aged about 27/28 years. PW2-Amar and
PW5-Janki disclosed that the deceased was mentally ill and was brought
from Nepal to Rohtak and was residing at the house of PW5-Janki, her
sister.
Next day, postmortem was conducted by the Board of doctors
of PGIMS, Rohtak which noticed several injuries on the person of the
deceased including an injury of 9x7 cm over the top of head. They also
removed one piece of stone from the anal canal of deceased and another
piece of stone from the abdominal cavity besides one condom. The Board
recorded the cause of death as cranio-cerebral damage along with utero-
vaginal rupture & rupture of large gut, rectum & anus ante-mortem in
nature and the death was homicidal. Consequently, offences under
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Sections 376 and 377 of IPC were also added. Two FIRs were
consolidated into one by cancelling FIR No.57 dated 01.02.2015 and by
adding offences under Sections 364 and 302 of IPC.
4. Thereafter, the investigation was undertaken and first arrest
made was of Padam @ Parmod on 09.02.2015. On the same day, accused
Somvir committed suicide at Delhi obviously because he must have come
to know about the police in action. During investigation, police arrested
other accused who confessed their guilt before PW30-Gulab Singh, Naib
Tehsildar, the executive Magistrate and other public witnesses while they
were in custody of police. Pursuant to the disclosures, recoveries were
made in respect of several articles having material evidentiary value. As
stated earlier, the victim's family is Nepali so also one accused Santosh @
Nepali who was declared juvenile.
5. The case was committed to the Sessions Court for trial as per
the procedure. Charges were framed against the accused persons for
various offences. Prosecution examined 57 witnesses in all and thereafter,
closed its case. The trial Court recorded the statement of all the accused
persons under Section 313 of Code of Criminal Procedure, 1973 (for short
'Cr. P.C.') by putting incriminating evidence against them. Thereafter, the
trial Court heard the arguments and decided the trial convicting the
accused persons and sentencing them as stated earlier. The trial Court
discussed the evidence of each and every witness separately which we
have seen carefully. In order that we do not burden the judgment with
finer details, we would discuss about the material evidence in the present
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case hereinafter.
ARGUMENTS
6. Learned counsel for the respective appellants in these appeals
as well as in reference made the following submissions:
(i) The reliance placed by the trial Judge as well as the
prosecution on the disclosure, allegedly made by the
appellants in the immediate presence of the executive
Magistrate PW-30 Gulab Singh is wholly misplaced and
unwarranted as Section 26 of the Evidence Act, 1872 (for
short 'Evidence Act') read with scheme of Sections 24, 25 &
27 of the Evidence Act creates an embargo on the proof of
such confession by the accused persons who are in the police
custody. Section 26 of the Evidence Act uses the expression
'Magistrate' in whose immediate presence the confession was
allegedly recorded in the present case. According to the
learned counsel for the appellants the Full Bench of Gauhati
High Court in the case of Shri Ajay Chakraborty Vs. State of
Assam, in Criminal Appeal No.7 of 2008 decided on
26.10.2017, has in terms held confirming the view of the
Division Bench of that Court in the case of Kalam @ Abdul
Kalam Vs. The Inspector of Police, 2007 Criminal Law
Journal, 3179, that the expression 'Magistrate' occurring in
Section 26 of the Evidence Act, would only mean the Judicial
Magistrate and not the Executive Magistrate. In addition to
the reasons stated in the said Full Bench judgment, the learned
counsel for the appellants submitted that it would be
dangerous to rely on the confession made in the presence of an
Executive Magistrate as he is a part of the Executive and not
the judiciary. The counsel for the appellants then contended
that in the present case the confession of all the accused
persons so recorded have been relied upon which is wholly
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illegal which could not have been proved;
(ii) The learned counsel for the appellants then contended that the
first arrest of accused-Padam @ Parmod was made on
09.02.2015 and his disclosure statement was also recorded as
Exhibit P-136 wherein he had disclosed about the places of
crime which were ultimately demarcated. Thereafter there was
no question of any new discovery or recoveries of the articles
on the spots as contemplated by 26 of the Evidence Act, on
12.02.2015. The prosecution story about discovery and
recovery so also the disclosures made by all the accused, is
clearly sham and is liable to be rejected;
(iii) The learned counsel for the appellants also submitted that as
held by the Full Bench in the case of Kartik Chakraborty
(supra), that the mandatory procedure under Section 164
Cr.P.C., which was applicable for Judicial Magistrate for
recording confession therein, is not to be found in Section 26
of the Evidence Act and therefore, admissibility and proof of
such confession would lead to an unfair trial;
(iv) The learned counsel for the appellants then submitted that
forensic team as well as the police party had surviellance on
the spots demarcated by the police and therefore the story
about recovery of the articles from the various spots, not in
one go but on different dates, clearly appears to be after
thought and will have to be rejected. There is no explanation
as to why on the very first visit by the police and the FSL
team, all the alleged incriminating articles were not recovered;
(v) As to the burnt jumpher (lady shirt), the learned counsel for
the appellants submitted that nothing was proved in that
context since the police has collected only the ash which was
also not sent for any test and therefore, that was no
circumstance against the appellants Sunil @ Mada and Sunil
@ Sheela;
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(vi) It was submitted that the proof in the nature of soil found from
the spot of murder in the shoes of the accused persons, could
not be utilized as evidence as the soil being of the same nature
everywhere in the area, the same could not be an incriminating
circumstance;
(vii) It was then submitted that the reliance on the recoveries of the
mobile phones, pursuant to the alleged disclosures, and of
motorcycle, was of no avail. The prosecution brought PW-36
SI Surinder, Incharge of Cyber Cell, to prove the locations of
the mobile phones at the relevant time, but then he was not
authorized to issue any certificate as per Section 65 (B) of the
Evidence Act, nor did he issued any certificate. Therefore his
evidence was in contravention of Section 65 (B) of the
Evidence Act and could not have been relied upon;
(viii) It was then contended that the prosecution has in common
relied on the evidence in the form of semen on the appellants
own underwears after about 7/8 days of the alleged offence.
In the first place, such type of evdience is improbable and does
not have any incriminating value as the semen was not found
to have matched with any articles recovered from the spots or
otherwise. It was, therefore, of no use to rely on the presence
of semen on the underwear of the accused persons in the DNA
test. The reliance placed by the prosecution in this behalf on
the own clothes of the accused persons i.e. track pants, t-shirt
and woolen sweater, again is no incriminating evidence;
(ix) It is then submitted by learned counsel for the appellants that
though the accused persons did not explain the incriminating
circumstances against them as contended by the prosecution, it
cannot be said that the prosecution proved its case. Accused is
required to keep silent and did not give any explanation as
alleged by the proseuciton, as the prosecution itself faild to
discharge its initial burden of proof. Finally the learned
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counsel for the appellants submitted that the entire impugned
judgment and order of the conviction of the appellants is
illegal and will have to be set aside. The learned counsel for
the appellants vehemently argued that there was nothing like
rarest of the rare case as argued by the prosecution to award
them the death sentence. It was further argued that in a case
where there is circumstantial evidence and no direct evidence,
and there is a doubt in the mind of the Court about the veracity
of the prosecution case, it would be unsafe to award death
sentence in such cases. According to the learned counsel for
the appellants, the appellants are young persons and there are
vaious mitigating circumstances on record which have not
been considered by the trial court. The counsel for the
appellants also submitted that the comparison by the State
counsel with the case of "Nirbhaya" is misplaced as the facts
in that case were totally different;
(x) Thus the learned counsel for the appellants prayed for
acquittal and in the alternative to remove the death sentence;
(xi) Per contra, learned counsel for the State Mr. Deepak
Sabharwal, Additional Advocate General, Haryana,
vehemently opposed the arguments raised by the learned
counsel for the appellants. He submitted that the prosecution
has proved its case beyond any reasonable doubt and the
investigation machinery has collected each and every type of
minute details and evidence and proved the same before the
trial court. According to him in the circumstances like finding
of the semen in the condom and matching thereof with one of
the accused in the DNA test and number of circumstances
which have been pointed out from the evidence, the
prosecution proved its case to the hilt. It was, therefore,
submitted that the conviction recorded by the trial court is
legal, correct and proper and no interference is required to be
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made. As to the death sentence the learned counsel for the
State vehemently argued that the facts of each case are bound
to be different. But then, major facts and the nature of
offences committed by the appellants in the present case, are
almost similar like the case of Nirbhaya and there is no reason
why any other view, except death sentence, can be taken by
this court. He therefore, submitted that applying the ratio in
respect of the award of death sentence in the case of Nirbhaya,
the trial Court is right in awarding the death sentence to all the
appellants. He, therefore, prayed for dismissal of the appeals.
CONSIDERATION
7. Upon hearing the learned counsel for the rival parties at length
for a few days and upon perusal of entire evidence oral as well as
documentary, we proceed to record our findings on evidence as under:-
(a) PW1-Surat Singh, farmer, deposed that he saw the dead body
in question in the field on 04.02.2015 partially eaten by dogs
and one hand of the dead body was also missing. He made a
phone call to number 100 and the police arrived;
(b) PW2-Amar is the brother of the deceased, a native of Nepal
and the deceased was elder to him. She was suffering from
mental illness since June 2014 and was brought to Rohtak by
his eldest sister PW5-Janki for being looked after. His family
received intimation on 04.02.2015 about recovery of a dead
body from the village Bahu Akbarpur and therefore, entire
family proceeded to PGIMS, Rohtak and saw the dead body of
the deceased 'M'. They identified the dead body by means of
clothes shown to them by the police making sure identification
with one high-neck sweater of black colour having white strips
and zipper and one suit and salwar. He also deposed that the
deceased was being treated at Sai Hospital at Haldwani Town,
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District Nanital where she was being taken for treatment
because one of his brother-in-law works at Haldwani. The
deceased 'M' was thus, residing with PW5-Janki, but from
01.02.2015, she went missing and while in Nepal she had also
gone missing once or twice;
(c) PW3-Dr. Vijay Pal Khanagwal, Professor Department of
Forensic Medicine, PGIMS, Rohtak deposed about the
constitution of Board for conduct of postmortem which the
Board conducted after going through the inquest papers.
Thereafter on 11.02.2015, one left hand of the deceased was
produced before him for postmortem on which he gave his
report. After going through the FSL reports Exhibit P12 to
P22, he opined that vaginal and anal intercourse had been
committed with the deceased 'M'. He then deposed that a
sealed parcel having seal of FSL was opened from which two
stone pieces (one piece broken into two parts) were seen and
Exhibit P23 and P24 were taken out from the body of the
deceased at the time of her postmortem. He also deposed about
Exhibit P25 to P28 and one condom Exhibit P29 also being
tested by FSL and stated that condom Exhibit P29 was
removed from the abdominal cavity of the deceased. He
deposed about the cause of death namely cranio-cerebral
damage along with utero-vaginal rupture & rupture of large
gut, rectum & anus; ante-mortem in nature and homicidal in
manner which could cause death immediately. After pursuing
the FSL reports, he opined that the deceased was subjected to
vaginal and anal intercourse;
(d) PW4-Rajesh son of Raj Kumar deposed that he was Senior
Vice-Presiding of Haryana Pradesh Vypar Mandal, Rohtak
and a candle march procession was taken out. On 12.02.2015,
he along with PW9-Gulshan Nijhawan, Ajay Kumar and
Tushar Anehja had gone to the Police Station CIA Staff,
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Rohtak and were allowed to remain present by SHO M.I. Khan
who was along with Gulab Singh, Naib Tehsildar, Rohtak and
some other police officers. He and his colleagues offered
assistance to the police when they were asked to sit outside.
After ten minutes, accused Pawan was called from inside. He
remained present along with SHO M.I. Khan Naib Tehsildar
Gulab Singh, P/SI Rakesh Kumar and Head Constable Sonu
who brought him from inside the room. He along with his
colleagues remained present there. In their presence,
interrogation of accused Pawan commenced by SHO M.I.
Khan and one police officer started reducing it in writing.
Accused Pawan in disclosure statement Exhibit P30 stated that
on the date of incident, i.e. about 7:00/7:30 P.M., he took
liquor in the vacant shop by the side of the shop of Sunil @
Sheela accompanied by Sunil @ Mada, Manvir and Rajesh @
Ghochru. After some time, Sunil @ Sheela came to them and
said that one lady in bare foot was going towards the village
Bahu Akbarpur. They started chasing her in order to entice
her. He then disclosed that in the meantime, Padam @
Parmod, Sarwar and Sombir came from opposite side on a
motor cycle driven by Sombir and they were stopped by him.
Then Sombir caught hand of that lady and started talking with
her. Sarwar caught hold of that lady from her shoulders and
made her to sit on the motorcycle driven by Padam. Sombir sat
behind the lady on the said motorcycle. Sunil asked them to
take her to the Kotha of Johri and they were also coming
there. He took his motorcycle and Sunil @ Mada took
motorcycle of his friend and consumed liquor and reached
Kotha of Johri. After recahing there, Sunil, Sombir, Rajesh @
Ghochru and two others made her to fell down on the ground.
They forcibly took up her Salwar and first of all, Sombir
committed rape upon her and thereafter, Manbir committed
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rape upon her. Santosh @ Nepali also arrived at the spot. At
that time, one police Gipsy vehicle passed through that place
and all of them got afraid. Therefore, Sunil put a blanket on
that woman and took her to one Kotha of Ram Niwas and
from there, Sombir sent Manvir to bring condom from outside.
At that place, a blanket was laid down and upon it first of all,
he committed rape upon that woman and thereafter, one by
one all of them committed rape upon her. In the meanwhile,
Manbir reached back after fetching condoms along with some
liquor, eatables and glasses. All of them consumed liquor and
thereafter, Sunil @ Sheela committed rape with the use of a
condom. The condition of the woman started deteriorating and
then all of them planned to kill the woman with the fear
otherwise they will be exposed. Thereafter, Rajesh @ Ghochru
made that girl to board the motorcycle and two others sat
behind her and took her towards the canal by the side of the
village. As there was no water in the canal, the woman was
pushed down in the fields and they started hitting her with the
bricks lying there. At that time, Rajesh stopped them and said
he wanted to have intercourse once again. After that Rajesh
committed rape upon her. She was hit with bricks and on his
asking, Rajesh @ Ghochru placed a cement sheet on her anus
and thrust it inside by hitting it with a brick due to which she
breathed her last. Thereafter, all of them returned back and
went to a plot by the side of the village and burnt there the
Jumpher (lady shirt) of the woman and all of their went to
their respective houses. The disclosure statement Exhibit P30
that was recorded as stated above was read over to the
accused-Pawan in the presence of all and the accused-Pawan
after admitting it to be true put his signatures in the token of
its correctness. Thereafter, PW30-Gulab Singh, Naib
Tehsildar, P/SI Rakesh and Head Constable Sonu also attested
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the disclosure statement. Thereafter, one by one all other
accused persons who were arrested were brought inside the
office. SHO M.I. Khan interrogated one by one and according,
their disclosure statements were recorded, which were duly
exhibited in the trial Court. The disclosure statements were in
the similar manner as stated above;
After completion of the aforesaid part at 10:00 A.M., all
of the accused persons and the police party started for the
place of occurrence in 3-4 vehicles. After reaching at the
place, they found FSL team with In-charge, one Madam
Dahiya and Janki, the sister of the deceased. Accused-Padam
first led them and pointed out one Kotha at a distance of about
1 killa from the road disclosing it to be of Johri wala Kotha
where firstly, rape was committed on the woman.
Accordingly, Exhibit P32-memo of demarcation was prepared
duly signed by the accused and attested by the witnesses as
aforesaid. The FSL team lifted from the spot, one hair band, a
small bunch of hair and some disposable glasses vide recovery
memo Exhibit P33. Padam lead the police party to a distance
of about 300 meters where he pointed out towards another
Kotha which was known as Kotha of Ram Niwas and prepared
demarcation Exhibit P34 again signed by all the witnesses.
From this spot, police lifted one blanket, small pieces of hair,
one broken silver chain, one underwear of red colour, some
empty bottles, glasses and used, unused condoms outside the
Kotha. All articles were sealed vide Exhibit P35 signed by the
witnesses. Thereafter, all of them came to the road and went to
the plot in the village vide demarcation Exhibit P36, where it
was disclosed that Jumpher was burnt. Some ash was lifted by
the police from that spot. Thereafter, the accused lead them to
the police from where the deceased woman was forcibly made
to sit on the motorcycle and that place was demarcated as
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Exhibits P37 and P38 signed by the witnesses. The accused,
thereafter, led the party to the place where the dead body was
lying. At that place, bricks and brick bats were lying which
were used to kill her with some blood. Demarcation memos
Exhibit P39 and P40 were prepared duly signed thereafter.
From this spot, police lifted three full bricks and one half
which were stained with blood and some blood stained earth
and converted them into a separate parcel sealed with seal 'SN'
and memo Exhibit P41 was prepared duly signed by the
witnesses. Accused-Pawan thereafter, led them to his home in
the village Gaddi Kheri and he got recovered one shirt, one
gray vest, one mobile and one lower of coffee colour and a
motorcycle parked by the side of stairs which were taken into
possession and converted into sealed parcel Exhibit P42 duly
signed;
Accused Sunil @ Mada also led the entire party to his
home in village Gaddi Kheri and got recovered one jean pant
of blue colour, one red shirt and one coffee colour vest and
one Micromax mobile of black colour which were converted
into separate sealed parcels with seal of 'SN' and made Exhibit
P43;
PW9-Gulshan Nijawan, member of Haryana Pradesh
Vypar Mandal, Rohtak along with PW4-Rajesh Vice President
of Haryana Pradesh Vypar Mandal, Rohtak, PW19-Ajay
Kumar son of Shadi Lal, the persons associated with Vypar
Mandal and PW24-Tushar son of Krishan Lal were also
examined by the prosecution who deposed in the same manner
as PW4-Rajesh. All these public witnesses PW4-Rajesh, PW9-
Gulshan Nijawan, PW19-Ajay Kumar and PW24-Tushar,
were present throughout from 6:30 A.M. when the
interrogation/disclosures were made in their presence, and
recoveries were made; and their evidence has practically gone
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un-shattered.
PW4-Rajesh, Senior Vice-President of Haryana Pradesh
Vypar Mandal, Rohtak then in his evidence proved the
articles, namely strands of hair Exhibit P44, chain Exhibit P45
and hair band Exhibit P46, one underwear-Exhibit P47,
blanket-Exhibit P48, two used condoms Exhibits P49 & P50,
three full bricks Exhibits P51 to P53 and half brick Exhibit
P54, one blue colour jean Exhibit P55, one shirt of coffee
colour-Exhibit P56, vest of green colour-Exhibit P57
belonging to accused Sunil @ Mada, one lower of chocolate
colour Exhibit P58, one vest of gray blackish colour Exhibit
P59 and one shirt of white colour Exhibit P60, pair of white
shoes Exhibit P61, ash Exhibit P62, all recovered at the
instance of Sunil @ Mada and Sunil @ Sheela from the spot
where Jumpher (lady's shirt) was burnt. Thus, all the
recoveries made were duly proved by substantive evidence by
the independent witness PW4-Rajesh;
(e) These witnesses cannot be said to have enmity or reason to
depose in respect of above pieces of evidence tendered by the
prosecution before the trial Court;
The submissions that all these recoveries from the spots
and from the accused are untrustworthy will have to be
rejected as misconceived. As many as four independent
witnesses have consistently, honestly deposed about the
disclosures, recoveries, demarcation etc. We have absolutely
no hesitation in accepting the said evidence. It was contended
that, though, the appellants were arrested on 09.02.2015, the
disclosures were recorded on 12.02.2015 and hence, the same
were manipulated. PW30-Gulab Singh did not inform the
appellants that the disclosures could be used against them. In
fact, PW30-Gulab Singh volunteered that he did inform
accordingly. This argument was based on modalities under
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Section 164 Cr. P.C. But then Section 26 of the Evidence Act
does not say so and in the absence of challenge to its validity
on that ground, we cannot accept such an argument. There is
no cross-examination as to disclosures on 12.02.2015 when
arrest of one Pawan was made on 09.02.2015;
(f) PW5-Janki, a Nepali woman deposed that her sister, the
deceased 'M' was residing with her for the last two months at
Rohtak and had gone missing. She was mentally ill and was
receiving treatment from the Hospital at Haldwani. At the time
when she went missing, PW5-Janki and her husband had gone
for their work whereas the children had gone for tuition and
her sister, deceased 'M' was alone in the house. Vide Exhibit
P63 on 01.02.2015, she reported about the missing of her
sister. On 04.02.2015, her family received intimation about the
dead body and accordingly, they went to see it along with
PW2-Amar and they identified the dead body. On 07.02.2015,
she disclosed to the police that her sister was wearing artificial
silver chain and a nose pin. She identified the sweater black
and white colour with zipper and was taken to the spot,
namely one Kotha where one hair-band belonging to her sister
was recovered and alongwith other articles likes empty bottles,
glasses and used, unused condoms at the Kotha. From another
Kotha at the distance of 3 to 4 killas, piece of artificial chain
and underwear were recovered and she identified both
belonging to her sister 'M' which she had worn. Identification
memo Exhibit P64 was prepared. Chain Exhibit P45, hair band
Exhibit P46 and underwear Exhibit P47 all were identified by
her along with sweater of black and white colour Exhibit P65,
Salwar of sky blue colour (firozi) Exhibit P66 worn by her
sister on the day when she went missing;
(g) PW6-Raj Kumar was examined to show that he had sold
packet of condom. This witness did not support the
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prosecution;
(h) PW7-Dr. Saroj Dahiya, In-charge FSL, Rohtak deposed that
she reached the spot and found a dead body of a naked woman
partially eaten by rodents. Photographs Exhibits P68 to P75
were taken on her direction and also collected evidence
available there and she handed over her report of the spot
inspection to the I.O. on 05.02.2015. She then inspected Johri
Wala Kotha and lifted the evidence from there. Thereafter, she
inspected Kotha of Ram Niwas and collected evidence from
that place also and also took photographs Exhibits P76 to P83.
She also inspected the spot from where ash was collected;
(i) PW9-Gulshan Nijawan, an independent witness with Rajesh
alias Teenu, Tushar and Ajay of Vyapari Sangh deposed that
in their presence and in the presence of Naib Tehsildar and
some other police officials, Sunil alias Sheela and Santosh @
Nepali were interrogated. Sunil @ Sheela suffered disclosure
statement Exhibit P87 whereby he offered to demarcate the
place of occurrence and got his clothes recovered from his
house which he was wearing at the time of commission of rape
and murder of victim 'M'. His disclosure statement was duly
signed by the witnesses and Naib Tehsildar-Gulab Singh so
also that of Santosh alias Nepali Exhibit P88;
In the similar manner as stated above, disclosure
statement Exhibit P86 of accused Sunil alias Sheela and
demarcation Exhibit P89 were duly proved. In his presence,
police lifted one hair band, strands of hair and some
disposable glasses vide Exhibit P33. He led the police party to
Kotha of Ram Niwas and accordingly, demarcation memo
Exhibit P90 was prepared. Thereafter, accused Santosh alias
Nepali also did same vide Exhibits P91 and P92. Accused
Sunil alias Sheela led the party to the place of murder of
deceased 'M' vide demarcation Exhibit P93. Accused Santosh
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alias Nepali demarcated the place vide Exhibit P94. Sunil alias
Sheela demarcated the place where Jumpher was burnt vide
Exhibit P96;
(j) PW10-Inspector/SHO Gajender Singh was the first police
officer who went to the spot and he deposed that the Special
Investigating Team was formed on 08.02.2015 of which he
was also the member;
It was contended that if the spots were under the
surveillance of police, the show of recoveries on two-three
occasions is a farce as the police must have found all the
articles on the very first inspection. Hence, according to the
learned counsel, the recoveries were planted. We are unable to
agree. In the first place, there is no cross-examination on this
line. Secondly, the incriminating articles might not have been
noticed at the first blush by the F.S.L. team or by police. The
supplementary statements of PW5-Janki revealed about the
articles on the person of the deceased and then again, searches
were carried out and some more articles were found. There is
nothing abnormal about it. That PW33-Ram Niwas, owner of
Kotha did not find anything on 08.02.2015 cannot help the
accused as he might not have been able to see it.
At any rate when all the accused were together and in
conspiracy right from lifting the woman and killing her and
thereafter, the confessions made by all of them under Section
26 of the Evidence Act, are clearly corroborated by this piece
of evidence also.
(k) PW11-Constable Pardeep, PW12-Dinesh Kumar, Halka
Patwari accompanied the I.O. for preparing site-plans. PW14-
Head Constable Somvir Singh deposed about visit to the spot
from where one severed left hand below the wrist was
recovered at the place from village Bahu Akbarpur near one
water works which was under construction. He recovered the
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same and deposited;
(l) PW15-ESI Phool Kumar deposed about the case property he
being Malkhana Mohrir of the Police Station, PGIMS,
Rohtak;
(m) PW17-Head Constable Satish deposed that he had gone to the
spot on 04.02.2015 itself along with ASI Baje Singh to see the
naked dead body lying in partially eaten condition where one
sweater having black and white strips and one Ghiya (gourd)
colour Salwar were found along with blood stained stones,
blood stained earth and strand of hair which were lifted and
sealed;
(n) PW18-Head Constable Sandeep is the very important witness
who is expert posted in Cyer Cell of the Police Department.
He proved call details of mobile phones seized by the police
and the working of the phone in A & B location of same
tower;
(o) PW20-SI Subhash deposed that on 09.02.2015, on the basis of
secret information he and his team arrested Padam alias
Parmod from village Gaddi Kheri and thereafter, arrested
Manbir and Rajesh @ Ghochru so also Sunil alias Sheela and
Santosh alias Nepali. Pawan and Sarwar @ Billu, Sunil alias
Mada were also arrested. He thus, deposed about the arrest of
all the accused persons;
(p) PW21-Dr. Rajesh Raj Kumar Rajpoot deposed about Somvir
(one of the accused) having committed suicide by consuming
poison;
(q) PW23-Mahavir Singh Rohilla, S.D.E. BSNL proved the
certificate Exhibit P145 that was required under Section 65-B
of the Evidence Act. He also proved about the call details in
his evidence. His evidence is equally important to prove the
call details and there is no manner of doubt that he has
successfully proved the call details between the accused
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persons;
(r) PW30-Gulab Singh, Tehsildar, Rohtak, the star witness of the
prosecution deposed that on 12.02.2015, when he was Naib
Tehsildar he had gone to CIA Staff, Rohtak on the directions
of the District Magistrate, Rohtak at about 6:15 A.M. He
found there some public persons had also arrived. In the
presence of all, at about 6:30 A.M., S.I. M.I. Khan started
interrogation of the accused persons. Firstly, accused-Pawan
was interrogated and thereafter, about all others he deposed in
all minor details in his evidence stating that he also attested all
the statements and documents were prepared accordingly,
which he signed along with the witnesses. He deposed about
disclosures of accused persons, recoveries etc. In his cross-
examination, he also stated that he was authorised and directed
by the District Magistrate to go to the CIA Staff and remain
present in his capacity as Magistrate and accordingly, he was
present at 6:15 A.M.;
(s) PW33-Ram Niwas son of Ujala was examined to prove the
existence of Kotha in his fields so also PW32-Rampal son of
Hardwari was examined to prove the existence of Kotha
constructed in the fields known as Johri Wala Kotha;
(t) PW36-SI Surender, In-charge of Cyber Cell proved the study
made by him in respect of call details of mobile phones of
Padam son of Ranbir, Sunil @ Sheela. He deposed that on
06.09.2015, he being posted as In-charge in Cyber Cell, S.P.
Office, Rohtak, on the asking of P/SI/SHO Kuldeep Singh,
had studied the call details of phone no.9812503390 of Padam
son of Ranbir, phone no.9996366066 of Sunil @ Sheela,
phone no.9467222012 of Sarwar @ Billu, phone
no.9466548307 of Manbir son of Dharambir, phone
no.9996693350, phone no.9728470821 of Sunil @ Mada,
phone no.9729161888 of Pawan son of Ranbir, phone
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no.9728044409 of Sombir son of Shilak Ram and ascertained
their location on 01.02.2015 from 6.00 P.M. to 12.00 (mid-
night) inconsonance with the respective C.D.Rs. Accordingly,
he located the positions of above noted mobile phones of the
place where deceased was raped, the place where her dead
body was found and the tea-vend and in respect of those
places, he prepared site plan Ex.P211 along with locations of
above said mobile phones. The cell I.D. of the Idea Tower for
the place of rape is 7316, that of Airtel is 34451 and that of
Vodafone is 21523. The cell I.D. of Idea Tower for the place
where the dead body was found is 7318, for Airtel 34453 and
Vodafone 21171.
Mobile phone no.9812503390 (of accused Padam) &
9466548307 (of accused Manvir) were present at the places of
rape and where the dead body was found and same were in use
from 6.00 P.M. to 9.37 P.M. and thereafter, it was not in use.
Mobile no.9466548307 (of accused Manvir) was at the
location of Hissar Road, Industrial Area under the Cell I.D.
7501 at 7.21 P.M.
Mobile phone no.9728044409 (of accused Somvir, the
deceased) was also present at the places of rape and where the
dead body was found and it was in use from 6.00 P.M. to 9.27
P.M. and thereafter, it was not in use.
Mobile phone no.9729161888 (of accused Pawan) was
also present at the places of rape and where the dead body was
found and it was in use from 6.00 P.M. to 9.16 P.M. and
thereafter, it was not in use.
Mobile phone no.9996693350 & 9728470821 (of
accused Sunil @ Mada) were also present at the places of rape
and where the dead body was found. Mobile phone
no.9996693350 was in use from 6.00 P.M. to 10.10 P.M. (it is
relevant to mention here that at this stage of testimony of
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PW36, his further evidence was deferred).
In his further evidence, it is further deposed by PW36
that after verifying the fact from record, he found that on
01.02.2015, mobile number 9728470821 was not in use and
was switched off. Further, mobile no.9728044409 pertaining
to Sombir son of Shilak Ram and mobile no.9729161888
pertaining to Pawan son of Ranbir was working and both were
present at the place of rape as well as at the place where the
dead body was found. Mobile phone of Sombir was working
till 21:27 hours on 01.02.2015 and mobile phone of Pawan
was working till 21:16 hours on 01.02.2015. Most of these
mobile numbers were in touch with each other on the date of
occurrence as well as prior to that date. He had also gone to
the spot and checked from the towers located at those places
and from there, he verified and confirmed about the presence
of the above said mobile phones at the place of rape as well as
at the place where dead body was found.
The evidence of this witness PW36-S.I. Surinder was
severely criticized by the counsel for the appellants. It has
been contended that he is not a competent witness to prove as
stated in Section 65-B of the Evidence Act. He claimed to
have proved the tower locations at the place of rape and
murder. There is no certificate by him under Section 65-B of
the Evidence Act.
At the outset, we find that PW36-S.I. Surinder is an
expert in Cyber-Cell of police with requisite training. He
collected the call details form the concerned mobile companies
and as per their information also made demarcation/location
map (Exhibit P211). Why this part of his evidence should be
disbelieved? There is no reason. Apart form that PW37-
Manish Bindra from Bharti Airtel, PW39 Deepak Kumar,
Idea, have proved Exhibit P212, Exhibit P257 certificates as
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per Section 65-B of the Evidence Act;
(u) PW37-Munish Bindra, Nodal Officer, Bharti Airtel Limited
deposed that on 29.04.2015, on the asking of HC Sarajudeen,
he handed over certificate Exhibit P212 under Section 65-B of
the Indian Evidence Act and the covering letter Exhibit
P212/A along with attested copy of customer application form
Exhibit P213 of Manish son of Jai Bhagwan resident of village
Gaddi Kheri to whom mobile no.9996693350 was issued as
well as copy of I.D. proof in the shape of vote I.D. card
Exhibit P214 and the call details from 31.01.2015 to
09.02.2015 having 15 pages Exhibit P215. He also handed
over attested copy of customer application form Exhibit P216
of Ramesh son of Ram Kishan resident of village Gaddi Kheri
to whom mobile no.9996366066 was issued as well as copy of
I.D. proof in the shape of ration card Exhibit P217 and the call
details from 31.01.2015 to 09.02.2015 having 9 pages Exhibit
P218. Further, he also handed over attested copy of customer
application form Exhibit P219 of Pawan Kumar son of Ranbir
resident of village Gaddi Kheri to whom mobile
no.9279161888 was issued as well as copy of I.D. proof in the
shape of driving licence Exhibit P220 and the call details said
number from 31.01.2015 to 09.02.2015 having 6 pages
Exhibit P221. He further handed over attested copy of
customer application form Exhibit P222 of Balraj son of
Dhupan resident of Village Gaddi Kheri to whom mobile
no.9466548307 was issued as well as copy of I.D. proof in the
shape of ration card Exhibit P223 and the call details of said
number from 31.01.2015 to 09.02.2015 having 8 pages
Exhibit P224. Said documents were taken into possession by
HC Sarajudeen vide memo Exhibit P225 against his attestation
and that of Sumant Vasahisht, Assistant Nodal Officer. His
statement was also recorded;
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(v) PW38-Dr. Sandeep, the Deputy Medical Officer, PGIMS,
Rohtak deposed about medical examination of the accused
persons;
(w) PW39-Deepak Kumar, Nodal Officer, Idea Cellular Limited,
Ambala deposed that on 29.04.2015, on the asking of HC
Sarajudeen, he handed over to him certificate Ex.P257 under
Section 65-B of the Indian Evidence Act along with photo
copy of customer application form Exhibit P258 of Parmod
son of Ranbir resident of village Gaddi Kheri to whom mobile
no.9812503390 was issued as well as copy of I.D. proof in the
shape of registration certificate Exhibit P259 and PAN card
Exhibit P260 and the call details of said number from
31.01.2015 to 09.02.2015 having 4 pages Exhibit P261. He
also handed over photo copy of customer application form
Exhibit P262 of Somvir son of Shilak Ram resident of Village
Gaddi Kheri to whom mobile no.9728044409 was issued as
well as copy of I.D. Proof in the shape of voter card Exhibit
P263 and the call details of said number from 31.02.2015 to
09.02.2015 having 2 pages Exhibit P264. He also handed over
attested copy of location chart Exhibit P265 of both mobile
numbers i.e. 9812503390 and 9728044409. And above said
documents were taken into possession by HC Sarajudeen vide
memo Exhibit P26 against his attestation. His statement was
also recorded;
(x) PW40-Head Constable Jasbir Singh stated that on 01.02.2015
he received application Exhibit P63 from PW5-Janki about
missing of her sister 'M' and accordingly, he received it;
(y) PW41-ASI Baje Singh deposed about information he received
on telephone about one dead body lying near canal and
accordingly, he informed the FSL team and he also proceeded
to the spot;
(z) PW44-Inspector Dharambir deposed that he recorded the
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statement of PW5-Janki and Jagat Singh and added offence
under Sections 302, 364, 376, 377 of IPC. He was the
participant in the investigation that started from 09.02.2015
after the arrest of the accused-Pawan;
(aa) PW46-Dr. Mahesh Chander Sharma, Neuro Surgeon, Sai
Hospital, Haldwani (Nanital) deposed that the deceased 'M'
was brought to his hospital on 08.01.2014 with two years
history of seizures and abnormal behaviour and was also
admitted in his hospital for two days. She was discharged on
10.01.2014 with further advise and treatment Exhibit P280.
His evidence is practically gone unchallenged;
(ab) PW48-P/SI Rakesh Kumar participated on 09.02.2015 to go
along with police party for arresting accused persons and first
one being arrested was Padam @ Parmod and others were also
arrested. He also deposed about disclosure statements as well
as recoveries made by the accused persons;
(ac) PW50-ASI Rohtas had taken Swarupa Sunar, mother of the
deceased 'M' to FSL Laboratory, Madhuban where her blood
sample was taken by DNA Branch for comparison with DNA
of the deceased 'M';
(ad) PW52-SI Mohammad Ilyas is the star Investigating Officer.
He deposed about the entire prosecution case right after he
was given investigation w.e.f. 06.02.2015 and he swung into
action immediately thereafter. He deposed about the entire
evidence that we have already discussed above and the steps
he had taken to collect the evidence.
The trial Court in details stated about his evidence about
which we have also stated in earlier part of the judgment;
(ae) PW53-Gaytri Sen, Senior Scientific Officer (Physics) FSL
(H), Madhuban deposed that she had examined two pieces of
greyish colour sheet Exhibits P272 & P273 described as stone
pieces; three broken pieces of greyish colour sheet (two pieces
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of them were belonging to one part which might have been
broken during transit) described as stone piece Exhibit P23 &
P24. She examined those articles and prepared her report. She
also examined soil Exhibit 18 and the soil collected from the
shoes Exhibit 21-A, Exhibit 26-A and Exhibit 27-A by means
of stereo zoom microscope and in respect of density gradient
distribution particles. She found that the same were similar
with the soil on the shoes and the soil collected from the spot;
(af) PW54-Dr. Surjeet Kumar, Senior Scientific Assistant
(Serology) FSL (H), Madhuban deposed about examination of
Exhibit 1-A (Salwar), Exhibit 1-B (Sweater) i.e. Exhibit P66
& Exhibit P65 in the Court. He also took out brownish stains
Exhibit P272 & Exhibit P273. From parcel no. III, he took out
Exhibit 3 (bunch of hair), i.e. Exhibit P274 in the Court. From
parcel no.V, he took out Exhibit 5 (stone pieces stained with
brownish stains), i.e. Exhibit P23 and Exhibit P24 in the
Court. From parcel no.X, he took out Exhibit 10 (damp lump
of each approximately 15 grams described as blood stained
earth), i.e. Exhibit P271 in the Court. He stated that except
blood stained earth (material disintegrated), all the blood so
detected was of human origin and accordingly, his reports are
Exhibits P14 and P15. He also stated that three and a half
pucca bricks stained with few brownish stains) and (one pair
of gray white shoes along with socks stained with few small
brownish stains) indicated existence of human blood and his
report is Exhibit P20;
(ag) PW56-Dr. Monika Dhankar, Senior Scientific Officer
(Biology), FSL (H), Madhuban deposed that she carried out
laboratory examinations to detect the presence of
semen/blood/hair on the exhibits by performing chemical test
and microscopy. Based upon above said examinations, she
detected human semen on Ex.1A (Salwar) marked as Ex.P66
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in the court, Ex.1B (sweater) marked as Ex.P65 in the court,
Ex.5 (stone pieces) marked as Ex.P23 and Ex.P24 (broken into
two pieces) in the court and Ex.6 (condom) marked as Ex.P29
in the court. She further proved two slides Ex.7A marked as
Ex.P323 & Ex.324 in the court and Ex.7B one anal swab
marked as Ex.P325 after bringing out them from a sealed
parcel having seal of FSL deposing that those exhibits are
same which were also examined by her and human semen was
also detected upon those articles. She also proved four slides
Ex.8A marked as Ex.P326 to Ex.P329 in the court and Ex.8B
and two vaginal swabs marked as Ex.P330 & Ex.P331 in the
Court after bringing out them from another sealed parcel
having seal of FSL which were also examined by her and
human semen was detected upon them.
Further, based upon above said examination, she had
detected blood on Ex.1A (Salwar) marked as Ex.P66 in the
Court, Ex.1B (Sweater) marked as Ex.P65 in the Court, Ex.P3
(hair) marked as Ex.P274 in the Court, Ex.5 (stone pieces)
marked as Ex.P23 and Ex.P24 (broken into two pieces) in the
Court, Ex.P6 (condom) marked as Ex.P29 in the Court.
Further, blood was also detected on slides Ex.7A marked
as Ex.P323 and Ex.P324 in the Court and Ex.7B anal swab
marked as Ex.P325 in the Court, slides Ex.8A marked as
Ex.P326 to Ex.P329 in the Court and the Ex.8B vaginal swabs
marked as Ex. P330 & Ex.P331 in the Court are same which
were also examined by her. Further, hair Ex.P3 marked as
Ex.P274 in the Court was found to be rooted and human in
nature. In regard to above conducted examination, Ex.P12 is
her report which bears her signatures.
It is further deposed that on 16.02.2015, she received 28
parcels vide R.C. No.9 dated 16.02.2015 through EASI Phool
Kumar No.258. Thereafter, laboratory examinations were
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carried out to detect the presence of
semen/blood/saliva/hair/bone/fiber on the exhibits shown in
her report (the contents of those parcels). While examining
bone Ex.1 marked as Ex.P103 in the court, it was cut into two
pieces for the examination. She had examined the exhibits by
performing chemical Tests and microscopy and based upon
her examinations, human semen was detected on Ex.3A
(underwear stated to be of Sunil), marked as Ex.P229 in the
court, Ex.4 (underwear stated to be of Manvir) marked as
Ex.P233 in the court, Ex.5A (underwear in parcel stated to be
of Santosh), Ex.6A (underwear stated to be of Parmod)
marked as Ex.P240 in the court, Ex.7A (underwear stated to be
of Sarwar) marked as Ex.P244 in the court, Ex.8A (underwear
stated to be of Pawan) marked as Ex.P248 in the court, Ex.9A
(underwear stated to be of Rajesh) marked as Ex.P252 in the
court, Ex.10A (underwear stated to be of Sunil son of Suraj
Bhan) marked as Ex.P256 in the court, Ex.12A & Ex.12B
(condoms) marked as Ex.P49 & Ex.P50 in the court, Ex.16
(lady' underwear stated to be recovered from the spot) marked
as Ex.P47 in the court, Ex.20 (blanket stated to be recovered
from the spot) marked as Ex.P48 in the court, Ex.21D (sweater
stated to be of Rajesh) marked as Ex.P162 in the court,
Ex.22A & Ex.22C (jacket and T-shirt in separate sealed
parcels stated to be of Santosh @ Nepali), Ex.23A & Ex.23B
(Track pant and T-shirt stated to be of Pawan) marked as
Ex.P99 & Ex.P100 in the court, Ex.24A & Ex.24B (Track pant
and shirt stated to be of Sarwar) marked as Ex.P128 &
Ex.P127 in the court and Ex.25A (pant stated to be of Manvir)
marked as Ex.P133 in the court.
Further, blood was detected on Ex.9A (underwear stated
to be of Rajesh) marked as Ex.P252 in the court, Ex.20
(blanket stated to be recovered from the spot) marked as
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Ex.P48 in the court, Ex.21A & Ex.21D (pair of shoes & socks
and sweater stated to be of Rajesh) marked as Ex.P165,
Ex.P166 & Ex.P164 in the court.
Further, traces of blood were detected on Ex.5B (pubic
hair stated to be of Santosh @ Nepali), Ex.16 (lady' underwear
stated to be recovered from the spot) marked as Ex.P47 in the
court, Ex.22A (jacket stated to be of Santosh @ Nepali).
Further, saliva was detected on Ex.11E(3) and 11E(14)
biri buts) marked as Ex.P317 in the court and traces of saliva
on Ex.11E(8) (biri but) marked as Ex.P316. Hair Ex.15
marked as Ex.312 in the court and Ex.20 (hair recovered from
blanket) marked as Ex.P48 in the court was found to be rooted
and human in origin. Bone Ex.1 marked as Ex.P103 in the
court was found to be human in origin. After examination, she
prepared her report Ex.P17 which bears her signatures
(ah) PW57-Sidharth Kaushik, Senior Scientific Officer (Serology)
DNA Division, FSL (H), Madhuban deposed that eight
accused persons in the case were produced before me and he
caused taking of their blood samples. Further, on 03.03.2015,
he also received 17 parcels from Biology Division, FSL (H),
Madhuban. DNA was extracted from items no.1A, 1B, 2, 3, 4,
5A, 5B, 6A, 6B, 7, 8, 9, 10, 11A, 11B, 11C, 12A, 12B, 13 to
25 as mentioned in his report Ex.P22 and he subjected it to
autosomal and Y STR analysis by using identifier and Y- filler
kit.
The allelic pattern of items no.1A, 3, 10, 15 and 17
matched with the allelic pattern of item no.23. The allelic
pattern of item no.1A matched with allelic pattern of item
no.20. The allelic pattern of item no.4 matched with allelic
pattern of item no.24. The allelic pattern of item no.16
matched allelic pattern of item no.22. The allelic pattern of
item no.7 matched with allelic pattern of item no.3, 5A, 6A
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and 14.
After examining all the exhibits, he concluded that
autosomal STR analysis indicates that DNA profile of seminal
stains on source of item no.1A (salwar) marked as Ex.P66 in
the court, source of item no.3 (stone pieces) marked as Ex.P23
& Ex.P24 in the court, source of item no.10 (underwear stated
to be of Rajesh) marked as Ex.P252 in the court, source of
item no.15 (blanket) marked as Ex.P48 in the court, source of
item no.17 (jacket stated to be of Santosh @ Nepali) matched
with DNA profile of Santosh (source of item no.23). DNA
profile of source of item no.4 (condom) marked as Ex.P29 in
the court matched with DNA profile of Pawan (source of item
no.24). DNA profile of source of item no.16 (woolen sweater)
marked as Ex.P164 in the court matched with DNA profile of
Rajesh @ Ghochru (source of item no.22).
DNA profile of source of item no.7 (bone) marked as
Ex.P103 in the court matched with DNA profile of blood
stains present on source of item no.3 (stone pieces) marked as
Ex.P23 & Ex.P24 in the court, source of item no.5A (glass
slides) marked as Ex.P323 & Ex.P324 in the court, source of
item no.6A (glass slides) marked as Ex.P326 to Ex.P329 in the
court, source of item no.14 (lady' underwear stated to be
recovered from the spot) marked as Ex.P47 in the court and
conclusively proves that they all are of same biological origin.
The Y-STR analysis indicates that DNA profile of
seminal stains on source of item no.1A (salwar), source of
blanket is inadvertently mentioned as item no.16 whereas the
blanket in the report is mentioned as item no.15 matched with
the DNA profile of Santosh (source of item no.23). DNA
profile source of item no.1A (salwar) also matched with DNA
profile of Manvir @ Mani, source of item no.20. DNA profile
source of item no.16 (woolen sweater) also matched with
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DNA profile of Rajesh @ Ghochru, source of item no.22 and
conclusively proves that all are of same biological origin.
He took blood sample of Swarupa Sunar, the mother of
deceased 'M' and conducted DNA test. His evidence shows
that there was matching of DNA profile of the mother and the
deceased 'M'. Thus, the prosecution squarely proved that it
was 'M' who was the victim, the daughter of Swarupa Sunar;
(ai) The defence examined its witnesses DW1-Kapoor Singh,
DW2-Jai Bhagwan and DW3-Yogender Sagar in support of
their case;
(aj) DW1-Kapoor Singh deposed that soil of the land owner
owned by him near the canal is similar throughout the village
from Canal. His evidence is of no significance;
(ak) DW2-Jai Bhagwan, Kanungo, Rohtak deposed for
corroborating the version of DW1-Kapoor Singh that Kapoor
Singh really owned the land. His evidence is also not of no
significance;
(al) DW3-Yogender Sagar, Press Correspondent of News Paper,
Dainik Bhaskar, Rohtak deposed that he had gone to the spot
when he came to know about the dead body being fetched out
in the fields and taken photographs. At that time, according to
him, on the spot, police officers were inspecting the site in an
around area of 100 meters and one shirt was recovered from
the spot and some broken pieces of cemented sheets were
lying there. According to him, on 08.02.2015, again he had
gone to the spot and he saw police making search in the area.
In the cross-examination, he admitted that he did not have any
personal knowledge about the incident or the facts and
circumstances of the case nor he was called for joining
investigation. His evidence is of no use to the defence;
8. Having thus, briefly taken stock of the evidence that has come
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before the Court from the prosecution witnesses, we proceed to record our
further reasons.
9. PW2-Amar and PW5-Janki, the brother and sister of the
deceased 'M' respectively and the DNA sample test of her mother clearly
proved that the victim was 'M', the real sister of PW5-Janki. PW46-Dr.
Mahesh Chandra Sharma, Neuro Surgeon, Sai Hospital, Haldwani
(Nanital) clearly proved that the victim 'M' was brought to him for
treatment and he had prescribed certain treatment for her mental illness.
Thus, it is proved that the victim was mentally ill woman. That the articles
seized by the police from the spots particularly the sweater of the victim
'M' was identified by PW2-Amar stating that it was he who had gifted it to
her sister 'M' and was one of her favourite sweater. It is also deposed that
she was wearing that sweater when she went missing on 09.02.2015.
PW5-Janki deposed that the articles seized from the spot, namely one
artificial chain, hair band and lady's underwear were purchased by PW5
from the market for her sister 'M' and all those articles along with
underwear were worn by her that is the victim 'M' on the day when she
went missing. It is thus, proved by the prosecution beyond any doubt that
the dead body was of victim 'M', the sister of PW5-Janki and it was found
in the field at village Bahu Akbarpur.
10. At this stage, it would be appropriate to reproduce the finding
of the Board which conducted the postmortem vide report Exhibit P6 as to
the external examination as under:-
"- The length of the body was 147 cm.
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- Mark of ligature on neck & dissection-Gnawing effects
present over the neck are described below in detail.
- The dead body was of a female individual found to be
wrapped in a white & yellowish plastic palli.
- The whole body was lying naked and was soiled at places.
- The scalp was missing from all over the vault of the skull
except right fronto-temporal region and lateral half of
parietal region which showed gnawing effects.
- The available scalp had 45 to 50 cm long, black hair which
could be pulled out on moderate traction.
- The vault of skull was lying exposed in the region-whole of left
half, medial half of the right parietal region & entire occipital
region.
- The gnawing effects were also present over the face-whole of
left side & lateral half of right side in the maxillary &
mandibular regions as a result of which underlying facial
bones were lying exposed.
- The teeth were also lying exposed on the left side.
- The gnawing effects were also present over the neck all
around.
- All the soft tissues including skin & subcutaneous tissues were
missing except laryngo-tracheal structures, cricoid & thyroid
cartilages.
- Gnawing effects were also present over the upper half of the
chest wall on the front & entire back in the thoracic region
along with both the lateral aspects.
- Soft tissues (skin, subcutaneous tissues and muscles) were
missing including the gnawing effects were present in the form
of fractures (nibbling of the lateral half of both the clavicles,
all ribs on their anterior ends along with the vertebrae).
- Both the upper extremities with the scapula were missing.
- Right lobe of the liver was lying exposed through the defect
produced by gnawing of chest wall on the right side.
- The whole of the contents of the thoracic cavity were found
missing except trachea & oesophagus.
- Right eye was closed. Left eyelids were missing with gnawing
effects around the left eye.
- The body was emitting mild foul smell.
- Rigor mortis was in passing off phase.
- Greenish discolouration of skin was present all over the
abdominal wall.
- In the anal canal, a rectangular shaped piece of stone
(appeared to be asbestos sheet) was found to be forcibly
thrust into the anus, with 3 cm length lying outside the anal
verge. On removal of it from the anus, it measured
16x6.5x0.5 cm with irregular margins (13 cm length of this
strip was lying in the anus & 3 cm was lying outside the anal
verge). The inserted portion of the stone was smudged with
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blood all over it at places.
The Board also noticed the following injuries over the
body:-
(1) Diffuse peri-cranial infiltration of blood over an area of
9x7 cm over the top of head. On dissection of the skull,
diffuse subdural hemorrhage was present confined to
both the parietal hemispheres over an area of 3x3 cm on
either side of midline.
(2) Diffuse reddish contusion of size 8.5x7 cm over the right
parietal region of the scalp just below the parietal
eminence. On dissection, the underlying tissues were
ecchymosed including the peri-cranial infiltration of
blood. On further dissection of the skull, diffuse
subdural hemorrhage was present over the parieto-
temporal region on the right side.
(3) Reddish abraded contusion of size 8x3 cm over the right
side of front of abdominal wall, situated 3 cm from
midline & 17 cm from the right anterior superior iliac
spine. On dissection, the underlying tissues were
ecchymosed.
(4) Reddish contusion of size 5x2 cm over the right iliac
region situated 5 cm above the right anterior superior
iliac spine. On dissection, the underlying tissues were
ecchymosed.
(5) Reddish contusion of size 3x2 cm over the right anterior
superior iliac spine. On dissection, the underlying
tissues were ecchymosed.
(6) Three reddish abraded contusions with size 7x1.5 cm,
6x2 cm & 8x2.5 cm over an area of 26x8 cm on the
anterolateral aspect of right thigh, situated 30 cm from
the right knee joint. On dissection, the underlying
tissues were ecchymosed.
(7) Reddish contusion of size 13x6 cm over the posterior
aspect of the right thigh, situated 25 cm from the
posterior superior iliac spine. On dissection, the
underlying tissues were ecchymosed.
(8) A reddish contusion of size 8x5 cm over the antero-
medial aspect of the left thigh, situated 25 cm from the
left knee joint. On dissection, the underlying tissues
were ecchymosed.
(9) Pubic hairs were 1.5x2.0 cm long, black in colour.
There was diffuse reddish contusion present over the
perineum. Hymen was torn at 7, 6 & 5 O'clock positions
with the margins irregularly torn & reddish in colour.
The posterior vaginal wall was lacerated along with
laceration of the cervix & the posterior & upper portion
of the uterus. All the tears were reddish in colour fresh
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along with the collection of about 250 cc of blood along
with blood clots.
(10) The anal region showed diffuse reddish contusion along
with tear of the anal canal at 12&6 O'clock positions
(vertically) with tearing of the anal verge, whole of the
anal canal, rectum & sigmoid colon. The margins of the
tears of these structures were reddish in colour."
11. PW3-Dr. Vijay Pal Khanagwal also deposed that after opening
of abdominal wall of the deceased 'M', an irregular shaped piece of stone
(appeared to be part of asbestos sheet) was visible in the pelvic cavity
between the loops of gut. On further examination, exploration, the
mesentery & all other soft tissues in the vicinity along with the loops of
gut were found contused. The terminal portion of large gut was found to
be torn irregularly by above described piece of stone, the shape of which
(piece of stone) was like "Kalam" shaped.
The piece of stone was soiled with blood and faecal matter. In
the vicinity of terminal portion of large gut, posterior surface of the
urinary bladder was contused (diffusely). The pelvic cavity contained
about 200-250 cc of blood admixed with faecal matter.
The ends of long bones of lower extremities were fused.
Medial end of clavicles were fused. Body of sternum was fused,
xiphisternum & manubrium were not fused. Cranial sutures were not
obliterated. All the permanent teeth except both left sided 3rd molar &
right upper 3rd molar had erupted which showed mild to moderate
grinding. Right lower 2nd molar was carious while the left lower 1st molar
was missing with its socket absorbed.
12. Detailed findings were also given by the Board in relation to
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the injuries and the cause of death which we reproduce hereunder:-
"- The meninges (membrances of brain) and hyoid bone
were intact.
- Gnawing effects were seen over larynx and trachea.
- Pleurae, lungs, pericardium & heart were missing.
- Large vessels were empty.
- Pharynx, oesophagus, liver & spleen were softened.
- Kidneys were missing with gnawing effects seen over
both lumbar regions.
- Stomach contained approximately 150 cc of yellowish
semi-digested food material.
- Small intestines contained digested food material and
gases.
And after conducting the autopsy, it was opined that the
cause of death in this case was cranio-cerebral damage
along with utero-vaginal rupture & rupture of large gut,
rectum & anus which were ante-mortem in nature,
homicidal in manner & these could cause death
immediately. Viscera were also preserved for chemical
analysis for detection of any poisonous substance
including stupefying agent/intoxicant
........
Accordingly, multiple injuries were observed by the
Board of doctors upon that body and in view of their
own specific findings read with FSL reports Ex.P12 to
Ex.P22, PW3 Dr. Vijay Pal Khanagwal has stated that
vaginal as well as anal intercourse had been committed
with the deceased and that as per the opinion of Board,
the cause of death in this case was cranio-cerebral
damage (head injury) along with utero-vaginal rupture
& rupture of large gut, rectum & anus which were ante-
mortem in nature, homicidal in manner & these could
cause death immediately. Further, the doctor has also
proved stone pieces (asbestos sheet) Ex.P23 and Ex.P24
out of which one was removed from the anal canal
which was 16x6.5x0.5 cm with irregular margins (13 cm
length of that strip was lying inside the anus and 3 cm
was lying outside the anal verge) whereas another was
found in the abdominal cavity and one condom Ex.P29
which was also removed from the abdominal cavity of
deceased. Further, PW3 opined that the deceased was
subjected to vaginal and anal intercourse.";
13. We are shocked and aghast to see the above number of injuries
and nature of injuries caused to the victim 'M' with the brutal and
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predatory acts of perpetrators of the barbaric crime.
14. The submission made by the learned counsel for the
appellants/accused persons that PW5-Janki disclosed most of the material
evidence only in the supplementary statement recorded at a later point of
time and therefore, her evidence ought to be rejected, is misconceived. We
reject the said submission. After all, PW5-Janki was working woman for
earning her livelihood by cleaning utensils at various houses and was
hardly having any education. That apart, when her first statement was
recorded, she must have been in deep shock particularly looking to the
manner in which her younger sister was raped and done to death.
15. After the investigation was handed-over to the S.I.T., the
police swung into action and acting on secret information caught hold of
Padam alias Parmod, resident of village Gaddi Kheri who, on
interrogation, obviously disclosed the names of all other accused persons
who had committed crime along with him. We have already made a
reference to the disclosures made by accused Padam alias Parmod who
was first apprehended by the police.
16. As to the scheme of Sections 24, 25, 26 and 27 of the
Evidence Act, and in particular regarding the recording of confessions of
the accused person in the immediate presence of Naib Tehsildar, the
Executive Magistrate-PW30-Gopal Singh, vehement arguments have been
made before us. Learned counsel for the appellants also pressed into
service Full Bench judgment of Gauhati High Court in the case of Shri
Ajay Chakraborty Vs. State of Assam, in Criminal Appeal No.7 of
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2008, decided on 26.10.2017, in which it is held that the word 'Magistrate'
in Section 26 of the Evidence Act would only mean Judicial Magistrate
and not the Executive Magistrate like PW30-Gopal Singh. We proceed to
decide the question.
17. It is not in dispute and rather an admitted fact that the incident
that took place was looked upon by the residents of Rohtak as blatant
shame and the people were chagrined, riled and were also under
trepidation. PW4-Rajesh son of Raj Kumar was a Senior Vice President of
Haryana Pradesh Vyapar Mandal, Rohtak. They had taken out a candle
march immediately after the incident came to the light, demanding arrest
of the guilty. They were so disturbed that on 12.02.2015 PW4-Rajesh
along with PW-9 Gulshan Nijhawan, PW-19 Ajay Nijhawan and PW-24
Tushar Aneja had visited the Police Station to know about the progress of
the investigation but they were initially stopped at the gate but called in
later. Thereafter, interrogation of the accused-Pawan was made by SHO
M.I. Khan in the presence of PW-4 Rajesh and the persons accompanying
him. PW-30 Naib Tehsildar Gulab Singh, Executive Magistrate and other
police officers were present in civil cloths at that time and the
interrogation of the accused-Pawan was made. SHO M. I. Khan in the
presence of PW-4 Rajesh and others and obviously in the immediate
presence of PW-30 Gulab Singh, recorded the disclosures made by each
accused and pursuant recovery thereto which has also been deposed by
PW-4 Rajesh, PW-9 Gulshan Nijhawan, Ajay Nijhawan and PW-24
Tushar Aneja. We have already made a mention about the nature of
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disclosure and the recoveries made by all the accused persons and
therefore, there is no need to repeat it. PW-30 Gulab Singh also deposed
in the same manner. In the cross-examination, he stated:
"xxx...xxx... Interrogation was started at about 6.30 A.M.
Besides SI/SHO M.I. Khan, two more police officials in civil
uniform were present there. I did not serve with accused any
notice that they were not bound to make a disclosure.
Volunteered in my presence, that fact was made clear by
SI/SHO M.I. Khan to them at the time of their respective
interrogation. I did not issue any certificate that the accused
had suffered disclosure statement voluntarily."
18. The above cross-examination was made in the light of the
procedure stated in Section 164 Cr. P.C.
19. With the above preface regarding the evidence tendered by the
prosecution through these witnesses, we now proceed to deal with the
legal question that has been hotly contested before us.
20. Mr. Vinod Ghai, learned Senior Advocate for the appellants
and other learned Advocates submitted that the word 'Magistrate'
occurring in Section 26 of the Evidence Act, 1872, does not mean a
person like Gulab Singh PW-30, who was merely an Executive Magistrate
and not a Judicial Magistrate. Section 26 of the Evidence Act
contemplates Magistrate means Judicial Magistrate. Therefore, the
confession contemplated by Section 26 of the Evidence Act made in the
immediate presence of Magistrate, while accused is in police custody,
must be held to be before the Judicial Magistrate. Relying on Section 164
of the Cr.P.C. regarding recording of confession before Judicial
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Magistrate, he submitted that Section 164 Cr.P.C. provides for modalities
for recording confession. The said provision provides for safeguard for
the fairness and to ensure that there is no prejudice or persecution of the
accused. Referring to the methodology, with which a confession under
Section 164 Cr.P.C. is recorded, he submitted that except for the bare
word of PW-30 Gulab Singh, there is no contemporaneous record
prepared by him, as is required by Section 164 Cr.P.C. According to him
assuming but not admitting that PW-30 Gulab Singh could be the
Magistrate under Section 26 of the Evidence Act, the confession recorded
under Section 26 as claimed by the prosecution, will have to be treated as
the one prohibited by law. He however conceded that in accordance with
the settled legal position qua Section 27 of the Evidence Act, the
recoveries made pursuant to the disclosure statements would be admissible
in evidence. But then he also submitted that the recoveries made, cannot
be believed as more than one number of accused at the same time, are said
to have made disclosures and recoveries one by one. Such a mode of
making recovery is unknown to law according to Mr. Ghai. We have
ourselves found one more judgment of the Division Bench of the Bombay
High Court in the case of Dagdu Dharmaji Shindore Vs. State of
Maharashtra reported in 2005 ALL MR (Cri) 1450. The learned
counsel for the parties before us submitted that there is no judgment of the
Supreme Court or of this Court on this legal question.
21. Per contra, learned counsel for the respondents vehemently
opposed the submissions on the above legal question and submitted that
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word 'Magistrate' in Section 26 of the Evidence Act includes Executive
Magistrate.
Section 26 of the Evidence Act, 1973 reads thus:-
"26. Confession by accused while in custody of police not
to be proved against him-No confession made by any person
whilst he is in the custody of a police officer, unless it be
made in the immediate presence of a Magistrate, shall be
proved as against such person.
[Explanation- In this section "Magistrate" does not include
the head of a village discharging magisterial functions in the
Presidency of Fort St. George
[***] or else where, unless such headman is a Magistrate
exercising the powers of a Magistrate under the Code of
Criminal Procedure, 1882 (10 of 1882)."
22. Then Section 3 of the Code of Criminal Procedure, 1973,
reads thus:
"3. Construction of references.-
(1) In this Code, -
(a) any reference, without any qualifying words, to a
Magistrate, shall be construed, unless the context otherwise
requires, -
(i)in relation to an area outside a metropolitan area, as a
reference to a Judicial Magistrate;
(ii)in relation to a metropolitan area, as a reference to a
Metropolitan Magistrate;
(b) any reference to a Magistrate of the second class shall, in
relation to an area outside a metropolitan area, be construed
as a reference to a Judicial Magistrate of the second class,
and, in relation to a metropolitan area, as a reference to a
Metropolitan Magistrate;
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(c) any reference to a Magistrate of the first class shall, -
(i)in relation to a metropolitan area, be construed as a
reference to a Metropolitan Magistrate exercising jurisdiction
in that area,
(ii)in relation to any other area, be construed as a reference to
a Judicial Magistrate of the first class exercising jurisdiction
in that area;
(d) any reference to the Chief Judicial Magistrate shall, in
relation to a metropolitan area, be construed as a reference to
the Chief Metropolitan Magistrate exercising jurisdiction in
that area.
(2) In this Code, unless the context otherwise requires, any
reference to the Court of a Judicial Magistrate shall, in
relation to a metropolitan area, be construed as a reference to
the Court of the Metropolitan Magistrate for that area.
(3) Unless the context otherwise requires, any reference in any
enactment passed "before" the commencement of this Code, -
(a) to a Magistrate of the first class, shall be construed as a
reference to a Judicial Magistrate of the first class;
(b) to a Magistrate of the second class or of the third class,
shall be construed as a reference to a Judicial Magistrate of
the second class;
(c) to a Presidency Magistrate or Chief Presidency
Magistrate, shall be construed as a reference, respectively, to
a Metropolitan Magistrate or the Chief Metropolitan
Magistrate;
(d) to any area which is included in a metropolitan area, as a
reference to such metropolitan area, and any reference to a
Magistrate of the first class or of the second class in relation
to such area, shall be construed as reference to the
Metropolitan Magistrate exercising jurisdiction in such area.
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(4) Where, under any law, other than this Code, the function
exercisable by a Magistrate relate to matters-
(a) which involve the appreciation or sifting of evidence or the
formulation of any decision which exposes any person to any
punishment or penalty or detention in custody pending
investigation, inquiry or trial or would have the effect of
sending him for trial before any Court, they shall, subject to
the provisions of this Code, be exercisable by a Judicial
Magistrate; or
(b) which are administrative or executive in nature, such as,
the granting of a licence, the suspension or cancellation of a
licence, sanctioning a prosecution or withdrawing from a
prosecution, they shall, subject as aforesaid, be exercisable by
an Executive Magistrate."
23. The question of law that arises for consideration is framed
thus:-
Whether the expression 'Magistrate' appearing in Section 26
of the Evidence Act would only mean Judicial Magistrate or
would include Executive Magistrate?
24. Examining the case of Dagadu Dharmaji Shindore Versus
State of Maharashtra, 2005 ALL MR(Cri) 1450, we find that in the facts
of that case that accused committed murder of his wife, daughter and son
by cutting their throats by means of razor blade. He thereafter tried to kill
himself by the same razor blade but the neighbours caught hold of him
and was taken to the hospital. Exhibit 15, his dying declaration, was
recorded by PW-1 Shalini Phansalkar, JMFC after certification by Doctor.
PW-11 Special Executive Magistrate, Mr. Kamalakar Adhav recorded
confession of the accused on 17.05.1991 produced at Exhibits 45 and 46,
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which were rejected by the trial court itself since they were not recorded
after following the procedure contemplated by Section 164 Cr.P.C.
Exhibit 15 recorded by PW-1 Ms. Shalini Phansalkar, JMFC, merely
became statement under Section 164 Cr.P.C. as the accused survived after
treatment. The Bombay High Court however made the following
observations in paras 12 and 16 of its judgment, the relevant portion of
which reads thus:
"12. xxx... Section 26 of the Evidence Act bars admissibility of
the confession made by a person in the custody of the police
officer unless it was made in the immediate presence of a
Magistrate which could be proved against him. In our view,
the presence of Magistrate contemplated under Section 26 of
the Evidence Act cannot be other than the Magistrate
following the mandatory provisions of Section 164 of Cr. P.C.
...xxx...
xxx... xxx... xxx...
16. From the aforesaid cases, it is clear that presence of
police near the accused where his statement was recorded
would make such statement inadmissible by virtue of Section
26 of the Evidence Act. In this case Dr. Paralikar having
admitted that he was examining and questioning the patient
(accused) and the patient had made the inculpatory statement
in the presence of the two police constables, the inculpatory
statement recorded by Dr. Paralikar cannot be used as extra
judicial confession being inadmissible by virtue of Section 26
of the Evidence Act."
25. Now examining the case of Velu Versus State, 2009 (11)
RCR (Criminal) 17, in the facts of that case; the accused was produced
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before PW-7 Tahsildar Thangavel on 10.06.2003 who recorded confession
statement Exhibit P-11 given by the accused. In para 18 of the judgment
the Division Bench relied on Rules 72 and 73 of the Criminal Rules of
Practice and Circular Orders, 1958 and stated that Rule 73 clearly stated
about recording of confession before a salaried Magistrate First or Second
Class. Thus the Madras High Court relied on Rule 73 cited supra. The
said decision is of no relevance as no such rule exists here.
26. The Full Bench decision of the Gauhati High Court in the case
of Kartik Chakraborty and others Versus State of Assam, decided on
26.10.2017, is the decision directly on the point. The referral Bench
which made reference to the Full Bench had made the following
observations in its referral order:-
"15. The scheme of the Code of Criminal Procedure does not
envisage participation of a Judicial Magistrate along with the
police in the course of investigation. The role of the
Magistrate during the course of investigation is specifically
defined. Firstly, he has to receive the FIR submitted and make
a note of the date and time of submission of the FIR. Secondly,
the accused after arrest have to be produced before a
Magistrate within 24 hours and the Magistrate has to deal
with the accused so produced either by giving police remand
or judicial custody or bail. Thirdly, the Magistrate has to deal
with the extension of the period of judicial remand under
Section 167 Cr.PC. Further, in case of summons trials, if
investigation is not completed within a period of six months,
the Magistrate can direct stoppage of the investigation.
Fourthly, the Magistrate can record the confessional
statement of the accused under Section 164 and statement of
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any witness under Section 164(5). After completion of
investigation, when final report is filed, judicial trial has to
take place.
16. The role of an Executive Magistrate in the Code of
Criminal Procedure is also envisaged under Sections 174 and
176. In a case of suicide or unnatural death, the Executive
Magistrate can conduct inquest and in specific cases, inquest
have to be conducted mandatorily by the Executive
Magistrate. An Executive Magistrate, under Section 174, can
enquire into the cases of death under such circumstances as
envisaged in the proviso. The Magistrate shall also have to
conduct exhumation proceedings.
17. In the scheme of the Code of Criminal Procedure, an
Executive Magistrate do co-ordinate with the police
effectively in conducting investigation. However, the Judicial
Magistrates only pass judicial orders like remand, bail,
recording confession under Section 164 but, while doing so,
they would not associate with the police in any manner in the
course of investigation. While recording confessional
statement under Section 164, the Magistrate has to take
precaution to keep away the presence of police. In the context
of said legal settings, the expression Magistrate used in
Section 26 of the Evidence Act cannot be construed and
understood as a Judicial Magistrate because Judicial
Magistrate can never co-ordinate with the police in the course
of interrogation or investigation for collecting evidence.
18. The Explanation in Section 26 helps in a way to
understand the expression Magistrate appearing in Section
26. In the Explanation, there is a reference to village Head
discharging Magisterial functions in the Presidency town or
village Headman exercising powers of Magistrate under the
Code of Criminal Procedure, 1882, is not deemed a
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Magistrate within the meaning of Section 26. Be that as it
may, the Code of Criminal Procedure, 1882, is repealed. The
Explanation part of Section 26 has become obsolete and
irrelevant. Nonetheless, the intention of the legislature could
be gathered from the said Explanation to mean that the
expression Magistrate would mean an Executive Magistrate
and not a Judicial Magistrate."
27. The Full Bench of the Gauhati High Court made a survey of
the provisions of Code of Criminal Procedure 1861 and Indian Evidence
Act, 1872 stating that Evidence Act was passed 11 years after the Code of
Criminal Procedure. It has been stated that Section 148 of the old Cr.P.C.
of 1861, was equivalent to Section 25; Section 149 Cr.P.C. finds place in
Section 26 of the Evidence Act and Section 150 Cr.P.C. finds expression
in Section 27 of the Evidence Act with certain modification of language.
Section 148, 149 and 150 of the Cr.P.C. 1861 having been incorporated in
Evidence Act, these provisions do not find place in the Criminal
Procedure Code of 1973 as they have been engrafted in Sections 25, 26
and 27 of the Evidence Act. The Full Bench then observed that in the year
1872 when the Evidence Act was enacted, there was no concept of
separation of powers between judiciary and executive or was in a
nebulous state. The Full Bench then stated thus in paragraphs 26 and 27
of its judgment that 1973 Code was enacted 23 years after the adoption of
the Constitution when separation of judicial powers from the executive
was achieved:
"26. Section 26 appears in the Evidence Act immediately
after Section 25. Section 25 is specific. It says that no
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confession made to a police officer shall be proved as against
a person accused of any offence. Section 26 appears to be in
continuation of Section 25 with an exception carved out, the
exception being that confession made by a person while in the
custody of a police officer may be proved against him if it is
made in the immediate presence of a Magistrate. Therefore, a
conjoint reading of Sections 25 and 26 of the Evidence Act
would go to show that no confession made by a person to a
police officer while in custody shall be proved against him
unless it is made in the immediate presence of a Magistrate.
We have already discussed that when this provision was
initially provided in the Code of Criminal Procedure, 1861
and thereafter incorporated in the Evidence Act, 1872, the
concept of separation of powers between the executive and
the judiciary was either non-existent or was in a nebulous
state. Therefore, it is quite but natural that the reference in
Section 26 of the Evidence Act is only to a Magistrate.
27. Now, we may look at the Code of Criminal Procedure,
1973, which was enacted 23 years after adoption of the
Constitution and by which time separation of judicial powers
from the executive was achieved in the country barring a few
hill states or some other tribal areas. In this context, Section
3 of the Code of Criminal Procedure, 1973 clearly mentions
that any reference in the said Code to a Magistrate without
any qualifying words would mean a Judicial Magistrate in
relation to an area outside a metropolitan area or to a
Metropolitan Magistrate in relation to a metropolitan area."
28. With due respect we are unable to agree with the aforesaid line
of reasoning. There is no manner of doubt that the Code of 1973
comprehensively replaced the Code of 1861 and the Parliament was fully
aware about the existence of Evidence Act 1872 and the various
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expressions in the said Code of 1861 including 'Magistrate' in Sectin 26 of
the Evidence Act, coupled with the fact that many expresions in the
Evidence Act 1872, were intermixed with expressions in 1973 Code. For
the first time the Executive Magistrates (Section 20) and the Special
Executive Magistrates (Section 21), were inserted in the Code of 1973,
having been fully aware about the expression 'Magistrate' in Section 26
Evidence Act. That is further highlighted upon perusal of the following
opening words in sub-Section (4) of Section 3 of the Cr.P.C. 1973.
"(4) Where, under any law, other than this code, xxx...."
29. This would mean Evidence Act, 1872, which is the law other
than the Code. But in para 27 (supra), there is reference made to Section 3
of the Code, and to be precise sub-Section (1) which has no relevance
because sub-Section (1), (2) and (3) relate to references "In this Code" and
sub-Section (4) to "any other law". Similar misreading was made by
Division Bench (affirmed by Full Bench) in para 26, without considering
that it was only sub-Section (4) which was relevant, vide State of Assam
vs. Anupam Das, 2007 (3) GLT 697. Not only that the Parliament was
fully aware that after the adoption of the Constitution; there was a
separation of judicial power from the Executive. It was aware that Section
26 of the Evidence Act uses the word 'Magistrate'. The Parliament was
further fully aware about the provision of Section 164 of the Code of 1973
for recording of confession by Judicial Magistrate and the procedure that
is required to be followed for recording any such confession. To express
in other words, Section 26 of the Evidence Act makes deliberate use of the
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expression 'Magistrate' and not the 'Judicial Magistrate'. The Parliament
was also aware that Section 3(4) of the Code of Criminal Procedure was
incorporated with full knowledge about the said expression in Section 26
of the Evidence Act, 1872.
30. In para 29 of its judgment the Full Bench while agreeing with
the view of the Division Bench in the case of Anupam Das (supra), made
the following observations in the case of Kartik Chakraborty (supra):
"29. xxx... xxx... After a detailed analysis, Division Bench
expressed the view in unequivocal terms that it would be a
strange logic if a statement recorded by a Judicial Magistrate
under Section 164 Cr.P.C. would be vitiated for non-
compliance of the conditions mentioned therein rendering it
inadmissible in evidence but on the other hand to hold that the
expression "Magistrate" contemplated under Section 26 of
the Evidence Act need not even be a Judicial Magistrate and
therefore under no obligation to comply with the requirements
of Section 164 Cr.P.C. and yet such confession would be
admissible in evidence."
31. In our humble opinion, the above reasoning would indirectly
mean omission by the legislature in not understanding the logic expressed
above. We cannot agree.
32. After discussing the various provisions of Cr.P.C. in
paragraphs 24, 25 and 26, the Full Bench also referred to the Supreme
Court's judgment in the case of Bheru Singh Versus State of Rajasthan,
(1994) 2 SCC 467 by quoting para 16. A careful reading of paragraph 16
itself shows the following sentence from the Supreme Court's judgment:
"Section 26 of the Evidence Act deals with partial ban to the
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admissibility of confessions made to a person other than a
police officer but we are not concerned with it in this case."
33. Thus the Supreme Court was not concerned with the
interpretation of Section 26 of the Evidence Act and therefore, the
aforesaid sentence in the case of Bheru Singh (supra) was of no
assistance.
34. The Full Bench thereafter stated thus, in paras 28 and 31 of its
judgment:
"28. The Legislature was obviously of the view that any kind
of confession by an accused while he is under the custody of
police is not to be used as evidence against the accused at the
time of the trial of any offence of which the accused is
charged. A principle based on the experience of the
lawmakers and the history of mankind. However, the
Legislature recognized an exception to the rule contained
under Sec 26, i. e. a confession made by an accused, who is in
the custody of the police, to some person other than a police
officer, if such a confession is made in the immediate presence
of a Magistrate. The only reason we can imagine is that
having regard to the separation of powers between the
Executive and the Judiciary and the requirement, belief and
expectation that the Judiciary functions absolutely
independent and uninfluenced by the authority of the
Executives and, therefore, the presence of a Judicial
Magistrate eliminates the possibility of confession being
extracted from the accused by a police officer by methods
which are not permissible in law. The presence of an
independent Magistrate by itself is an assurance against the
extraction of confession by legally impermissible methods.
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Even if any such impermissible influences are exercised on
the accused before producing the accused before the
Magistrate for recording the confession the Legislature
expected that the accused would have the advantage to
complain to the Magistrate that he was being compelled to
make a confession and on such a complaint the Magistrate is
expected to protect the accused from the tyranny of police. A
very sacred duty cast on the Magistrates, which must always
be kept in mind by the Judicial Magistrates who are required
to record or to be present at the time of recording the
confessional statement by an accused while he was in the
custody of the police. In the final analysis, any kind of
compelled testimony by an accused person would be squarely
violative of Article 20 Sub Article 3 of the Constitution. It is
precisely for the above mentioned reasons the Parliament
expressly stipulated certain duties u/s 164 (2) Cr.PC on the
Judicial Magistrate recording statement u/s 164 Cr.PC. It
would be strange logic that while a statement recorded by a
Judicial Magistrate u/s 164 Cr.PC would be vitiated for non-
compliance of the conditions stipulated u/s 164 (2) and (4) of
the Cr.PC and cannot, therefore, be used against the maker of
the statement, but the Magistrate contemplated u/s 26 of the
Evidence Act need not even be a Judicial Magistrate and,
therefore, is under no obligation to comply with the
requirements of Sec 164 (2) and (4) of the Cr.PC, but the
confession recorded by such a Magistrate can be proved
against the accused for establishing his guilt.
29. xxx... xxx... xxx...
30. xxx... xxx... xxx...
31. xxx... A plain and simple reading of paragraph 28
would go to show that the previous Division Bench had
observed that it would be a strange logic if a statement
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recorded by a Judicial Magistrate under Section 164 Cr.PC
would not be admissible in evidence if the conditions
stipulated therein are not complied with whereas a statement
made before an Executive Magistrate under Section 26 of the
Evidence Act where there is no procedural safeguards as
provided under Section 164 of the Code of Criminal
Procedure, 1973, would be admissible in evidence. Following
such analysis, conclusion was reached in paragraph 29 that
the expression "Magistrate" appearing in Section 26 of the
Evidence Act can only mean a Judicial Magistrate but not an
Executive Magistrate."
35. We have carefully gone through the reasons adopted by the
Full Bench in para 28. Having given our careful thought, with respect, we
are of the opinion that the reasons given by the Division Bench in the case
of Anupam Dass (supra) followed by the Full Bench in the aforesaid
para 28 amount to deciding the validity of Section 26 of the Evidence Act
qua the expression 'Magistrate' and declare the same 'ultra-vires'. In the
absence of any articulated challenge to the validity of Section 26 of the
Evidence Act, there was no occasion for the Division Bench in Anupam
Dass (Supra) and the Full Bench to indirectly declare Section 26 as
invalid or ultra vires Article 20 (3) of the Constitution of India or for the
alleged logic described as strange logic. In our humble opinion, that will
amount to questioning the wisdom of the Parliament in the absence of
specific legal challenge to the provision of Section 26 of the Evidence Act
in appropriate proceedings, inter alia, on the touchstone of comparison
with Section 164 Cr.P.C. We are unable to agree that such a course could
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be adopted by indirectly replacing the word 'Magistrate' with the word
'Judicial Magistrate' in Section 26 of the Evidence Act against the will of
the Parliament.
36. According to us even with the best of intention, if there is no
statutory expression of the intention, the court cannot supply words for the
sake of achieving the alleged intention of the law maker. It is entirely
within the realm of the law maker to express clearly what they intend. No
doubt, there is a limited extent to which the court can interpret a provision
so as to achieve the legislative intent. That is in a situation where such an
interpretation is permissible, otherwise feasible, when it is absolutely
necessary, and where the intention is clear but the words used are either
inadequate or ambiguous. That is not the situation here. The Full Bench
replaced the authority and jurisdiction of the "Magistrate" by "Judicial
Magistrate" which is a major change which could be made only by the
Legislature. The court, in the process of interpretation, cannot lay down
what is desirable in its own opinion, if from the words used, the legislative
intention is otherwise discernible. As we have already noted above, the
duty of the court is not to lay down what is desirable in its own opinion.
Its duty is to state what is discernible from the expressions used in the
statute. The court can also traverse to an extent to see what is decipherable
but not to the extent of laying down something desirable according to the
court if the legislative intent is otherwise not discernible. What is
desirable is the jurisdiction of the law-maker and only what is discernible
is that of the court.
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37. In the case of Shri Ram Krishna Dalmia & others Versus
Shri Justice S. R. Tendolkar and others, AIR 1958 SC 538, the Apex
Court observed thus in (c) and (d):
"(c) that it must be presumed that the Legislature
understands and correctly appreciates the need of its own
people, that its laws are directed to problems made manifest
by experience and that its discriminations are based on
adequate grounds:
(d) that the Legislature is free to recognise degrees of harm
and may confine its restrictions to those cases where the need
is deemed to be the clearest."
38. In the case of Pinner Versus Everett, (1969) 3 All ER 257,
Lord Reid with majority opinion observed thus:
"In determining the meaning of any word or phrase in a
statute the first question to ask always is what is the natural
or ordinary meaning of that word or phrase in its context in
the statute? It is only when that meaning leads to some result
which cannot reasonably be supposed to have been the
intention of the legislature, that it is proper to look for some
other possible meaning of the word or phrase. We have been
warned again and again that it is wrong and dangerous to
proceed by substituting some other words for the words of the
statute."
39. Justice Bushrod Washington of the United States, Supreme
Court said "It is but a decent respect due to the wisdom, the integrity and
the patriotism of the Legislative body, by which any law is passed, to
presume in favour of its validity until its violation of the Constitution is
proved beyond a reasonable doubt."
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40. To repeat, sub-Section (4) of Section 3 of the Criminal
Procedure Code 1973 opens with words 'where, under any law, other than
this Code', obviously refers to the Evidence Act. Thereafter clause (a) of
sub-Section (4) of Section 3 of Criminal Procedure Code, 1973 in clear
terms speaks about the function to be performed by the Judicial
Magistrate. Thus as per Clause (a) the Executive Magistrate is neither
involved at the stage of Section 26 of the Evidence Act in the matter of
appreciation or sifting of evidence or formulation of any decision nor
would expose any person to any punishment or penalty or detention in
custody and also with no effect of sending such person for trial in Court.
To repeat, under the scheme of the Code of 1973 sending for trial in the
Court is the job of the committal Court or punishing any person or
detaining in the custody is the function of a Judicial Magistrate and not of
the Executive Magistrate. Therefore, it is Clause (b) of sub-Section (4) of
Section 3, which would be relevant in respect of Executive Magistrate.
The list stated in that clause is illustrative which would mean that
recording of statement of the accused under Section 26 of the Evidence
Act in his immediate presence would also fall in the Clause (b). The
function to take any decision, whether to withdraw for a prosecution or
sanction a prosecution, is always subject to the decision by the judicial
courts. We, therefore, find that the Parliament has, in clear terms, inserted
sub-Section (4) defining function of 'Magistrate' in Clause (b). The
function to be performed by a 'Magistrate' (Executive Magistrate) as per
Section 26 of the Evidence Act would not be of the nature specified in
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Clause (a) but would be as specified in Clause (b). Had there been any
intention to confer the power only on the Judicial Magistrate, the
Parliament would not have forgotten to insert the word 'Judicial' before
the word 'Magistrate' in Section 26 Evidence Act. It is in the light of the
above discussion, therefore, we are of the opinion that the reasons given
by the referral Court as quoted earlier in paras 15 to 18, are in consonance
with the scheme of the Criminal Procedure Code and the Evidence Act
and therefore, we come to the conclusion that the expression 'Magistrate'
(in Section 26 of the Evidence Act includes) 'Executive Magistrate' and
not only the 'Judicial Magistrate'.
41. Having held that Executive Magistrate is a Magistrate for the
purposes of Section 26 of the Evidence Act, we are bound to clarify in the
light of the settled legal principles regarding confession, that the proof or
admissibility of such confession cannot 'be all and end all' of the matter.
To repeat, admissible evidence of confession as per Section 26 of the
Evidence Act as discussed above is one of the pieces of evidence and may
require corroboration in the given circumstances. We need not quote the
said settled legal position herein.
42. With the above preface now we proceed to marshall the other
evidence in addition to the proved confession recorded under Section 26
of the Evidence Act to find out whether the prosecution case could be
believed and whether the same is trustworthy.
43. We have already stated about the evidence that has come on
record and in particular in relation to the recoveries made from the spots
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and from the accused persons. We would like to quote the evidence that
has been culled out against each accused person by the trial Court (from
Page No.223 to 234 of impugned judgment) as under:-
"1) Rajesh @ Ghuchru
a) DNA matched
b) Blood on shoes, socks and wearing apparel of the
accused i.e. his underwear and sweater
c) Semen on underwear, and wearing apparel of the
accused.
d) Recovery of artificial silver chain, hair-band, semen and
blood stained ladies underwear of deceased, strands of hair,
disposable glasses, used condoms, semen stained blanket,
blood stained bricks and stones and stone pieces/sheets
recovered from the abdominal and anal cavity of deceased
from the places of rape and murder which were in his
exclusive knowledge and demarcated by him along with his
co-accused in the presence of Executive Magistrate as well as
stone pieces/sheets recovered from the abdominal and anal
cavity of deceased thrust by him.
e) Statement of accused Ex P151 wherein he admitted his
involvement in the crime in the immediate presence of a
Magistrate.
f) Statement of accused of Padam @ Parmod Ex.P136 vide
which he implicated himself and on the basis of which the
conspiracy hatched by him and co-accused was revealed and
co-accused were arrested.
g) Soil on the shoes matched with the soil of place of
murder.
2) Sarwar @ Billu:
a) Semen on the underwear and wearing apparel i.e. track
pant and shirt of the accused.
b) Recovery of artificial silver chain, hair-band, semen and
blood stained ladies underwear of deceased, strands of hair,
disposable glasses, used condoms, semen stained blanket,
blood stained bricks and stones from the places of rape and
murder which were in his exclusive knowledge and
demarcated by him along with his co-accused in the presence
of Executive Magistrate.
c) Statement of accused of Padam @ Parmod Ex.P136 vide
he implicated himself and on the basis of which the conspiracy
hatched by him and co-accused was revealed and co-accused
was arrested.
d) Statement of accused Ex.P116 wherein he admitted his
involvement in the crime in the immediate presence of a
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Magistrate.
e) Call details and location of the mobile phone of accused
at the places where rape was committed and murder of the
deceased at relevant time on 01.02.2015 and he remained in
contact with other co-accused from 01.02.2015 to 09.02.2015
corroborated by admission in statement U/S 313 Cr.P.C.
wherein admits use and possession of the recovered mobile
phone and sim card.
3) Pawan:
a) DNA matched
b) Semen on underwear and wearing apparel i.e. track
pant and T shirt of the accused
c) Recovery of artificial silver chain, hair-band, semen and
blood stained ladies underwear of deceased, strands of hair,
disposable glasses, used condoms, semen stained blanket,
blood stained bricks and stones from the places of rape and
murder which were in his exclusive knowledge and
demarcated by him along with his co-accused in the presence
of Executive Magistrate as well as recovered condom from the
abdominal cavity of deceased having his source.
d) Statement of accused of Padam @ Parmod Ex.P136 vide
he implicated himself and on the basis of which the conspiracy
hatched by him and co-accused was revealed and co-accused
was arrested.
e) Statement of accused Ex P30 wherein he admitted his
involvement in the crime in the immediate presence of a
Magistrate.
f) Soil on the shoes matched the soil of place of murder.
g) Call details and location of the mobile phone of accused
at the places where rape was committed and murder of the
deceased at relevant time on 01.02.2015 and he remained in
contact with other co-accused from 01.02.2015 to 09.02.2015
and the fact also corroborated by admission in statement U/S
313 Cr.P.C. wherein admits use and possession of the
recovered mobile phone.
h) admits in statement U/S 313 Cr.P.C. that he lead the
police to places for demarcation and his shoes were taken into
possession by the police.
4) Sunil @ Mada:
a) Semen on underwear
b) Recovery of artificial silver chain, hair-band, semen and
blood stained ladies underwear of deceased, strands of hair,
disposable glasses, used condoms, semen stained blanket,
blood stained bricks from the places of rape and murder
which were in his exclusive knowledge and demarcated by him
along with his co-accused in the presence of Executive
Magistrate.
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c) Statement of accused of Padam @ Parmod Ex P136 vide
he implicated himself and on the basis of which the conspiracy
hatched by him and co-accused was revealed and co-accused
was arrested.
d) Statement of accused Ex P31 wherein he admitted his
involvement in the crime in the immediate presence of a
Magistrate.
e) Call details and location of the mobile phone of accused
at the places where rape was committed and murder of the
deceased at relevant time on 01.02.2015 and he remained in
contact with other co-accused from 01.02.2015 to 09.02.2015
and the fact also corroborated by admission in statement U/S
313 Cr.P.C. wherein admits use and possession of the
recovered mobile phone and two sim cards.
f) Admits in statement U/S 313 Cr.P.C. that he along with
Sunil @ Sheela took the police where the Jumpher was burnt
and ash was lifted by the police.
5) Manbir @ Manni:
a) DNA matched
b) Semen on underwear and wearing apparel i.e. track
pant and shirt of the accused
c) Recovery of artificial silver chain, hair-band, semen and
blood stained lady's underwear of deceased, strands of hair,
disposable glasses, used condoms, semen stained blanket,
blood stained bricks and stones from the places of rape and
murder which were in his exclusive knowledge and
demarcated by him along with his co-accused in the presence
of Executive Magistrate.
d) Statement of accused of Padam @ Parmod Ex.P136 vide
he implicated himself and on the basis of which the conspiracy
hatched by him and co-accused was revealed and co-accused
was arrested.
e) Statement of accused Ex P117 wherein he admitted his
involvement in the crime in the immediate presence of a
Magistrate.
f) Call details and location of the mobile phone of accused
at the places where rape was committed and murder of the
deceased at relevant time on 01.02.2015 and he remained in
contact with other co-accused from 01.02.2015 to 09.02.2015
and the fact also corroborated by admission in statement U/S
313 Cr.P.C. wherein admits use and possession of the
recovered mobile phone and sim card.
g) Location of his mobile phone on Hisar Road at 7.21 pm
on 01.02.2015 where the chemist shop is situated from where
condoms were purchased.
6) Padam @ Parmod:
a) Semen on underwear
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b) Recovery of artificial silver chain, hair-band, semen and
blood stained ladies underwear of deceased, strands of hair,
disposable glasses, used condoms, semen stained blanket,
blood stained bricks and stones from the places of rape and
murder which were in his exclusive knowledge and
demarcated by him along with his co-accused in the presence
of Executive Magistrate.
c) Statement of accused Ex.P136 vide which he implicated
himself and on the basis of which the conspiracy hatched by
him and co-accused was revealed and co-accused was
arrested.
d) Statement of accused Ex P152 wherein he admitted his
involvement in the crime in the immediate presence of a
Magistrate.
e) Call details and location of the mobile phone of accused
at the places where rape was committed and murder of the
deceased at relevant time on 01.02.2015 and he remained in
contact with other co-accused from 01.02.2015 to 09.02.2015
and the fact also corroborated by admission in statement U/S
313 Cr.P.C. wherein admits use and possession of the
recovered mobile phone and sim card.
f) Soil on the shoes matched with the soil of place of
murder.
7) Sunil @ Sheela:-
a) Semen on underwear
b) Semen and blood on his blanket recovered from the spot
c) Recovery of artificial silver chain, hair-band, semen and
blood stained ladies underwear of deceased, strands of hair,
disposable glasses, used condoms, his semen and blood
stained blanket, blood stained bricks and stones from the
places of rape and murder which were in his exclusive
knowledge and demarcated by him along with his co-accused
in the presence of Executive Magistrate.
d) Statement of accused of Padam @ Parmod Ex.P136 vide
he implicated himself and on the basis of which the conspiracy
hatched by him and co-accused was revealed and co-accused
was arrested.
e) Statement of accused Ex P152 wherein he admitted his
involvement in the crime in the immediate presence of a
Magistrate.
f) Call details and location of the mobile phone of accused
at the places where rape was committed and murder of the
deceased at relevant time on 01.02.2015 and he remained in
contact with other co-accused from 01.02.2015 to 09.02.2015
and the fact also corroborated by admission in statement U/S
313 Cr.P.C. wherein admits use and possession of the
recovered mobile phone and sim card.
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g) Admits in statement U/S 313 Cr.P.C. also that ash i.e. of
burnt Jumpher was lifted by the police in his presence of the
plot."
44. We have already reproduced the nature of evidence available
against each individual accused. Considering the arguments advanced by
the learned counsel for the appellants, we proceed to deal with the
evidence on record in the first place collectively. Following evidence in
respect of all the accused can be summarised which has application to all
the accused persons:-
(i) Statement of the accused in the immediate presence of the
Executive Magistrate wherein, he admitted his
involvement in the crime in question by describing the
same from the beginning till the end:
Such statement of each of the accused were recorded and
were exhibited accordingly, by the trial Court, namely Rajesh
@ Ghochru (Exhibit P151), Sarwar @ Billu (Exhibit P116),
Pawan (Exhibit P30), Sunil @ Mada (Exhibit P31), Manbir @
Manni (Exhibit P117), Padam @ Parmod (Exhibit P152), and
Sunil @ Sheela (Exhibit P87);
(ii) Recovery of artificial Silver Chain, Hair band, Semen and
human blood stained lady's underwear of the deceased,
strands of hair, disposable glasses, used condoms, semen
strand blanket, human blood stained bricks, stones and
stone pieces/sheets recovered from the abdominal and anal
cavity of the deceased from the places of rape and murder,
which were in their exclusive knowledge and were
demarcated by all the accused separately along with co-
accused in the presence of Executive Magistrate as well as
public witnesses:
The recovery of the aforesaid incriminating articles was
in the exclusive knowledge of the accused persons and they
lead the police party, the public witnesses as well as the
Executive Magistrate (PW30), Gulab Singh, Naib Tehsildar to
the various spots from where the recoveries were made. This is
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the evidence which is common for all the accused persons. In
the connection, the submission was made that the first accused
who was arrested on 09.02.2015 had lead the police party to
the spots and therefore, these spots and recovered articles were
within the knowledge of the police. Therefore, the
demarcation of reports and showing recovery from the same
spots from the remaining accused persons was merely a farce
and since the places were already known to the police from the
first accused and therefore, such demarcation as well as
recoveries made from the spots by others cannot be said to be
the evidence showing any evidentiary value. It is true that the
first accused had lead the police to all the spots and some
recoveries were made, but then recoveries were not made and
the spots were not demarcated till the time one by one all the
accused lead to the demarcation of the places and also to the
recoveries. When number of accused have committed one
crime, such a course of action is bound to occur but then the
submission that the entire discovery should be rejected is not
acceptable to us;
(iii) Semen on underwear of each of the accused:
Learned counsel for the appellants vehemently argued that the
finding of semen on underwear of each of the accused after a
few days would be no evidence at all and the same cannot be
incriminating circumstance. We, however, find that coupled
with the other evidences finding of semen on underwear of the
accused persons would assume importance and would become
a circumstance which can be taken into consideration
particularly because none of these accused persons stated,
even a word, in answer to the questions put to them on these
material aspects. The accused persons did not give any
explanation/answer in respect of the blood stained and semen
connecting with the deceased, which would be discussed
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individually hereinafter. In so far as non-explanation in
Section 313 of Cr. P.C. is concerned, in the case of Sunil
Clifford Daniel versus State of Punjab, (2012) 11 SCC 205,
the Supreme Court stated thus, in Paras 50 and 51 of the said
decision:-
"50. It is obligatory on the part of the accused while
being examined under Section 313 CrPC to furnish
some explanation with respect to the incriminating
circumstances associated with him, and the Court must
take note of such explanation even in a case of
circumstantial evidence, to decide as to whether or not,
the chain of circumstances is complete. The aforesaid
judgment has been approved and followed in Musheer
Khan v. State of M.P. (See also Transport Commr. v. S.
Sardar Ali.)
51. This Court in State of Maharashtra v. Suresh held
that, when the attention of the accused is drawn to such
circumstances that inculpate him in relation to the
commission of the crime, and he fails to offer an
appropriate explanation or gives a false answer with
respect to the same, the said act may be counted as
providing a missing link for completing the chain of
circumstances. We may hasten to add that we have
referred to the said decision, only to highlight the fact
that the accused has not given any explanation
whatsoever, as regards the incriminating circumstances
put to him under Section 313 CrPC."
We think the said ratio is apt in application to the present
case;
(iv) Call details and location of the mobile phones of the
accused persons at the places where rape and murder was
committed at the relevant time on 01.02.2015 and the
accused remained in contact with each other from
01.02.2015 till 09.02.2015
45. It is significant to note that in response to the question on
these aspect, the accused persons have admitted in statement under
Section 313 of Cr. P.C. about use and possession of mobile phones
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recovered from them along with Sim Card. In this behalf, learned counsel
for the appellants submitted that and it is true that except, Rajesh @
Ghochru, all other accused persons had used mobile phones and thus,
mobile phones were recovered by the police. We agree with the learned
counsel for the appellants that the evidence regarding mobile phone
cannot be used against Rajesh @ Ghochru because no mobile phone was
recovered from him. However, recovery of mobile phones having been
made from other accused persons, the same evidence would be relevant.
46. Now we turn to the individual evidence against the accused
persons as under:-
(i) Rajesh @ Ghochru
(a) DNA matched:
Learned counsel for the appellant was right in arguing
that the matching of DNA of Rajesh @ Ghochru with the
stains on his underwear and therefore, about the crime in
question, the said evidence does not carry any weight. But in
our opinion, fact, however, remains that he was under
obligation to explain about presence of semen on his
underwear. The submission that no accused would wear the
same underwear for some days was a matter for explanation by
the accused persons. But in this case, there is no explanation at
all. It is a different matter that the explanation could be
accepted by the Court;
(b) Blood on the shoes, socks and apparel wearing by the
accused, i.e. underwear and sweater:
Human semen was found on his sweater and the DNA
profile thereof matched with him. Most significantly, blood
was detected on his underwear, sweater and shoes.
This is a most significant circumstance and rather the
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clinching evidence against this accused. He has not explained
in his statement under Section 313 of Cr. P.C. as to how the
blood on the shoes, socks and apparel, i.e. underwear and
sweater was found. We, therefore, accept the said
circumstance as conclusive;
(c) Soil on the shoes matched with the soil of places rape
and murder:
Learned counsel for the appellants argued that mere
finding of soil on the shoes would not make a circumstance.
The defence has also brought the evidence that the soil in the
area was of the same nature. We do not agree with the
submission. In the first place, it was for the appellant-Rajesh
@ Ghochru to explain as to how the soil was there on his
shoes and where from the soil got inserted in the shoes. On the
contrary, the prosecution has proved that the soil was of the
same place where the murder took place. This was an unusual
circumstance which ought to have explained by this accused
but he did not. We, therefore, hold that the said circumstance
is equally significant and conclusive;
(ii) Sarwar @ Billu
(a) Semen on the wear apparel, i.e. track pant and shirt
of the accused:
Admittedly, the appellant-Sarwar @ Billu did not
explain a word as to how there was semen on the track pant
and shirt and the finding of semen on the track pant and shirt
is unusual and definitely required explanation from him. But
he did not explain. The finding of semen on his track pant and
shirt would again constitute a significant circumstance against
the accused;
(b) Call details and location of mobile phones of the
accused at the places where rape and murder was
committed and the accused remain in contact with other
co-accused from 01.02.2015 to 09.02.2015 and there was
admission in the statement under Section 313 Cr. P.C.
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about use and possession of recovered mobile phones and
Sim Cards:
The submission is made by the learned counsel for the
appellants that the finding regarding call details and location is
totally inadmissible in the wake of Section 65-B of the
Evidence Act and that mere communication between accused
persons would not be a circumstance. We do not agree. We are
concerned with the call details from the time the accused
persons initiated the offence and till the end of it and
thereafter, till 09.02.2015. The accused persons ought to have
explained as to why they had several exchange of calls
between them particularly at the relevant time before and after
the rape and murder committed and what was the conversation
between them. It is a different matter that the explanation
could or could not have been found satisfactory. But the
absence of explanation itself would mean that the prosecution
proved the circumstance that right from the initiation of the
crime till 09.02.2015, all the accused persons were in contact
with each other. At this stage, we must state that all the
accused persons made disclosure statement in the form of
confession before the immediate presence of Executive
Magistrate. In those statements, all the accused persons
referred to the phone calls between them right from the
beginning of the crime. We, therefore, find that the call details
and the contact of the accused with each other fully
corroborates the confessional statement under Section 26 of
the Evidence Act;
(iii) Pawan
(a) DNA matched:
There was semen that was found in the condom (item
No.4) that was recovered from the body of the deceased. That
semen found in the condom matched with the item No.24,
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blood sample of Pawan, in the DNA test. This is a very strong
circumstance against him;
(b) Semen on underwear, shirt pant and t-shirt of the
accused:
This is also a strong circumstance against the accused-
Pawan because it is most unusual that the semen would be
found on track pant and t-shirt of the accused persons except
in the case of gang rape. Pawan did not explain a word about
the same in his statement under Section 313 of Cr. P.C. and
the prosecution proved it beyond any doubt about the presence
of semen. This circumstance is therefore, a strong
circumstance;
(c) Soil on the shoes matched with the soil on the place of
murder:
The accused did not explain in his statement under
Section 313 Cr. P.C. as to how and where from the soil was
found in his shoes and the prosecution proved that the soil was
from the same place by examining the expert;
(d) Call details:-
For the same reasons which we have given above, it was
obligatory on the part of the accused to explain as to why they
were in contact with each other from the beginning of the
crime till the end and what they were taking over the mobile
phones;
He admitted in his statement under Section 313 Cr. P.C.
about demarcation and recovery of his shoes.
(iv) Sunil @ Mada
(a) Semen on underwear:
This accused did not explain in his statement under
Section 313 Cr. P.C. as to how there was semen on his
underwear, though, the said circumstance may not be
conclusive but is definitely corroborative in the absence of any
explanation by him in his statement under Section 313 Cr. P.C.
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(b) Phone Call:
Learned counsel for the appellant-Sunil @ Mada
contended that as to the call details, there was only one call
that was said to have been proved. Even if that its true, it was
for him to explain that on the relevant time, the call was made
for what purpose, though, the circumstance was put to him.
We, therefore, do not attach any importance whether one call
or several calls were made;
(c) The statement of Sunil @ Mada in the immediate
presence of Executive Magistrate which is confession under
Section 26 of the Evidence Act is corroborated by the call
details and demarcation of places coupled with the fact that he
took police party along with Sunil @ Sheela to the places
where jumpher was burnt which was in the exclusive
knowledge of this accused persons. We are convinced that the
common circumstances and the present individual
circumstances are good enough to hold the complicity of these
accused;
(v) Manbir @ Manni
(a) Exhibit P22 (Page 269) DNA profile source of salwar
of the deceased:
This is a very strong circumstance against the accused
since DNA test revealed matching with salwar of the deceased
and is a clinching circumstance;
(b) Semen was found on his underwear and track pant
and shirt:
This is another strong circumstance since it is most
unusual that the track pant and shirt of the accused would have
semen stains. Surprisingly, Manbir @ Manni did not prefer to
explain these circumstances against him.
Learned counsel for the appellant submitted that the
chemist shop owner did not support the prosecution from
whom this accused is said to have purchased condom.
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Nevertheless, the location of his mobile phone at Hisar Road
at 7:25 A.M. on 01.02.2015, i.e. the date of incident, has not
been explained by him. We, therefore, accept the said
circumstance as corroborative.
(vi) Padam @ Parmod
(a) Semen on underwear:
Apart from the common circumstances described by us
for all the accused persons, semen was found on his
underwear. He did not explain the same in his statement under
Section 313 Cr. P.C. His confession in the immediate presence
of Executive Magistrate is admissible, in addition to common
circumstances about recovery and demarcation. He has not
tendered any explanation regarding call details from
01.02.2015 to 09.02.2015 and he has not uttered a word about
it.
(b) Soil was found on his shoes and that was matched
with the soil of the places of occurrence:
This is again a clinching circumstance against him and
we accept the same as corroborative evidence.
(vii) Sunil @ Sheela
(a) Semen on underwear:
He has not explained in his statement under Section 313
Cr. P.C. about it.
(b) Semen and blood on blanket recovered from the spot:
This is a very strong circumstance against the accused
Sunil @ Sheela. The blanket was used during the course of
rape and the incident when the deceased was shifted to second
place. Semen and blood was found on the blanket that was
recovered from the spot. Semen of Sunil @ Sheela was found
on the blanket. The blanket had blood stains. In our opinion,
this is a very strong circumstance apart from the common
circumstance.
Learned counsel for the appellant argued that the
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appellant-Sunil @ Sheela did not make a single call. The said
circumstance even if ignored, fact remains that that semen and
human blood on the blanket recovered from the spot is very
strong and conclusive circumstance. Sunil @ Sheela and Sunil
@ Mada both were involved in burning the jumpher which
they admitted while leading the police party to the places of
occurrence. But then for all these circumstances, no
explanation was given by them.
47. The above is the crux of circumstantial evidence that in our
opinion is quite conclusive against each of the accused and according to
us, thus, the prosecution has proved its case beyond any doubt much less
reasonable doubt. In addition, the findings recorded by the medical board
which conducted post mortem of the dead body in minute details clearly
corroborate the confessions of all the accused persons recorded in the
immediate presence of the Executive Magistrate. We accept the evidence
tendered by the prosecution and find no merit in the appeals filed by all
the appellants/accused persons.
48. The appellants/accused persons have been awarded by the trial
Court death sentence.
49. Learned counsel for the appellants contended that there is
nothing rarest of rare in the case that the trial Court should have
endeavoured to award death sentence.
50. A mentally ill woman, who came out of her sister's house
situated on the outskirts of the town Rohtak, started walking towards
unpopulated open area, was ensnared and waylaid by these
appellants/accused by forcibly making her sit on their motorcycle. She
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was taken to two places where she was raped by all the appellants/accused
one by one. The appellants/accused had consumed alcohol. They changed
the spot due to fear as a police jeep had passed. They pushed her down in
the field and started hitting her with the bricks. Rajesh @ Ghochru again
raped her and she was again hit with bricks. She was still alive. What must
be the excruciating pain to almost half dead young woman! Then the
'animalism', torment, highest order of cruelty rather "tsunami" of cruelty
made thereafter is bound to petrify one and all. Rajesh @ Ghochru placed
a cement sheet on her anus and thrust it inside by hitting it inside with
brick. She shrieked for the last time and breathed her last.
Now we ask the question to ourselves; what else is required to
hold this case to be the rarest of rare!
51. We have seen the decisions on the point which we find were
also also considered by the trial Court with all details in the impugned
judgment/order. The law is well settled in this behalf.
52. Learned State counsel vehemently argued that the present case
is akin to the case of Nirbhaya in which the Apex Court upheld the death
sentence to the accused persons in that case. Though, the facts are slightly
different, we are inclined to agree with the submission made by the
learned State counsel having gone through the decisions in the case of
Nirbhaya and having carefully applying our mind to the manner in which
the rape and murder was committed. We would not burden the said aspect
of the matter by quoting references, but we would quote the following
portion which is apt in its application:-
"A large number of murders is undoubtedly of the common
type. But some atleast are diabolical in conception and cruel
in execution. In some others where the victim is a person of
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high standing in the country society is liable to be rocked to
its very foundation. Such murders cannot simply be wished
away by finding alibis in the social maladjustment of the
murderer. Prevalence of such crimes speaks, in the opinion of
many, for the inevitability of death penalty not only by way of
deterrence but as a token of emphatic disapproval of the
society". "The instruments used and the manner of their use,
the horrendous features of the crime and hapless, helpless
state of the mentally ill victim, and the like, steel the heart of
the law for a sterner sentence."
53. We are therefore, fully convinced with careful and conscious
consideration of the entire matter that the death sentence awarded by the
trial Court to all the accused persons was the only sentence that could be
awarded.
54. At the hearing of these matters, we specifically put the counsel
for the appellants/accused on notice as to why fine or compensation
should not be increased and granted. Mr. Ghai, learned Senior counsel for
convict-Sunil @ Mada (present in the Court) submitted that the imposition
of fine or grant of compensation is a matter within the realm of the Court
and the same would depend on the settled principles which the Court may
follow. We have thus, heard the learned counsel on this aspect of the
matter. The second aspect as to whether in the absence of any appeal by
the State, the order imposing fine made by the trial Court on the appellants
can be varied.
We would like to answer the second question first in that even,
though, there is no appeal preferred by the State, this Court as an
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Appellate Court does have a power under Section 386(b)(iii) and (e) Cr.
P.C. after giving the opportunity of showing cause. Since the substantive
sentence of death has already been awarded, there is obviously no
occasion for us to make enhancement. However, we have heard the
learned counsel as already stated on the question of enhancement of fine,
which we think we would be able to vary in terms of the above provisions.
Apart from that we think the power under Section 482 Cr. P.C. which is
exclusively available to this Court to secure the ends of justice can also be
utilized.
We then find that despite stern penal laws in places, deterrence
in the matter of sentences including the death sentence is not satisfactory.
We think imposition of heavy fine which, if recovered by sale of the
properties of the guilty, would prove additional deterrence. Not only that
the victim or the concerned relatives of the victim would also find atleast
some solace to their sufferance, if they are compensated by selling the
property of the guilty. In the present case, having regard to the entire
factual matrix discussed above, we think fine in the sum of `50 lakhs
would be appropriate which should be recovered from the
appellants/accused by attaching/selling their respective immovable
properties like plot, house, agricultural land etc. It is quite possible that
one or more of the convict does not own or possess any immovable
property. But then all these appellants/accused have been found, by us, to
have committed the ghastly crime with a conspiracy jointly and
individually. If they had come together to commit the crime jointly and
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individually and not one of them resisted any of the other, we think the liability
to pay fine in the sum of `50 lakhs under the peculiar facts and circumstances
must be made joint and several. Having thus, come to this conclusion, out of
the total sale proceeds, if any recovered, half of the sale proceeds ought to go to
the State of Haryana and the remaining half to PW5-Janki.
We applaud the splendid hard work and the professionalism with
which Investigating Officer SI, Mohammad Ilias conducted the investigation in
such a hard case. Now it is for the Government how to reward him.
55. The upshot of the above discussion is that the following order is
inevitable:-
ORDER
(i) MRC No.2 of 2016 is decided in the affirmative and the judgment and order of conviction of all the respondents-Sunil @ Mada, Sunil @ Sheela, Sarvar @ Billu, Pawan, Padam @ Parmod, Manbir @ Manni and Rajesh @ Ghochru, for the offences for which they have been convicted and death sentence has been awarded to all of them, is upheld;
(ii) Criminal appeals CRA-D-90-DB of 2016 filed by Sunil @ Mada; CRA-D-91-DB of 2016 filed by Sunil @ Sheela; CRA- D-99-DB of 2016 filed by Sarvar @ Billu and Pawan; CRA- D-107-DB of 2016 filed by Padam @ Parmod; CRA-D-108- DB of 2016 filed by Manbir @ Manni and CRA-D-187-DB of 2016 filed by Rajesh @ Ghochru, are dismissed and the impugned judgment of conviction and order of sentence of death penalty imposed by the trial court against the appellants- Sunil @ Mada, Sunil @ Sheela, Sarvar @ Billu, Pawan, Padam @ Parmod, Manbir @ Manni and Rajesh @ Ghochru, is upheld and affirmed;
(iii) The sentence of fine imposed by the trial Court is substituted as under:-
(a) The appellants/accused, namely Padam @ Parmod, 76 of 77 ::: Downloaded on - 24-03-2019 19:42:19 ::: MRC No.2 of 2016 and other appeals -77- Pawan, Sarwar @ Billu, Manbir @ Manni, Rajesh @ Ghochru, Sunil @ Mada and Sunil @ Sheela shall pay total fine in the sum of `50 lakhs (Rs. Fifty Lacs only), jointly and severally, out of which an amount of `25 lakhs (Rs. Twenty Five Lacs only) shall be paid to the State of Haryana; and the balance `25 lakhs (Rs. Twenty Five Lacs only) to PW5-Janki;
(b) The Deputy Commissioner, Rohtak is directed to identify the immovable properties of all the appellants/accused, namely Padam @ Parmod, Pawan, Sarwar @ Billu, Manbir @ Manni, Rajesh @ Ghochru, Sunil @ Mada and Sunil @ Sheela, attach them within one month form today. He is further directed to sell the attached properties within two months from the date of attachment and report compliance to this Court on or before 04.07.2019;
(c) List on 05.07.2019 for reporting compliance.
(A.B. CHAUDHARI) JUDGE (SURINDER GUPTA) JUDGE March 19, 2019 mahavir/raj Whether speaking/ reasoned: Yes Whether Reportable: Yes 77 of 77 ::: Downloaded on - 24-03-2019 19:42:19 :::