Punjab-Haryana High Court
Parveen Kumar vs State Of Haryana on 16 July, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 16th July, 2013
CRA No.198-DB of 2009
Parveen Kumar ...Appellants
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Aman Pal & Ms. Sushma Chopra, Advocates, for the
appellant.
Mr. Sandeep Vermani, Addl. AG, Haryana,
for the respondent-State.
HEMANT GUPTA, J.
Parveen Kumar is in appeal against the judgment of conviction dated 03.01.2009 and order of sentence dated 07.01.2009 passed by the learned Additional Sessions Judge, Gurgaon, vide which the appellant was convicted for the offences under Sections 365, 302 & 201 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/- and in default of payment of fine to undergo imprisonment for a period of one month under Section 365 IPC; imprisonment for life and to pay a fine of Rs.5000 for an offence under Section 302 IPC and rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- and in default of payment of fine to further undergo imprisonment for a period of 15 days for an offence under Section 201 IPC.
Kumar Vimal 2013.07.20 15:25 I attest to the accuracy and integrity of this document Chandigarh CRA No.198-DB of 2009 2
The prosecution case was set in motion on the statement of Digpal Singh, father of the deceased Rahul made to the Incharge, Police Post, Sectors 4-7, Gurgaon on 25.09.2007. In his statement (Ex.PA), Digpal Singh stated that he has two daughters and one son namely Rahul, aged about 12 years, who is studying in 6th class in Jiwan Jyoti School, Sector 4, Gurgaon. Rahul had gone to his school at about 6.30 AM on the cycle on 24.09.2007, but did not reach home though the school closed at 1.30 PM. He stated that they searched for his son, but could not find any clue. He received a ransom call on his mobile phone No.9891835093 from landline phone No.01274320037 and the caller has conveyed to him that his son is with him, but did not disclose his identity. On the basis of such statement, FIR Ex.PB was recorded for an offence under Section 365 IPC.
It was on 26.09.2007, the investigation was handed over to SI Rajinder Singh and on the basis of investigation conducted by him, he arrested the accused from his house on the mid-night of 26/27.09.2007 at 12.15 AM. During interrogation, the accused-appellant suffered a disclosure statement (Ex.PJ) to the effect that he abducted Rahul and took him to Rewari on his motor-cycle No.HR26Y-9636. He purchased two bottles of beer from a liquor vend on way and on reaching the area of Garhi Bolni turning on the bank of a canal, he took one beer bottle and also made Rahul to have beer. Rahul took half of it and the remaining half he took himself. Thereafter, he killed Rahul by putting his handkerchief in his mouth forcibly and closing his nose and threw his dead body in sarkanda plants bunch standing near the bank of the canal. He further disclosed that on the way at Dharuhera, he gave a telephonic call to the father of Rahul, who is his maternal uncle, on his mobile phone. On 25.09.2007 at about 10.00 PM, he again gave a telephonic call from his mobile phone to Digpal Singh by Kumar Vimal 2013.07.20 15:25 I attest to the accuracy and integrity of this document Chandigarh CRA No.198-DB of 2009 3 putting handkerchief on his mouth and demanded Rs.5 lacs. He further disclosed that he kept concealed cycle and school bag of Rahul on a shop at Laxman Vihar and the motor cycle, which was used by him in committing the occurrence, was kept concealed by him in sugar cane fields in village Zarakpur Sunela, District Khurja (UP) belonging to the in-laws of his brother-in-law Anil Kumar. The mobile phone, which was used by him, belonged to Ravinder @ Rabbu, which was switched off by him and was kept concealed by him in his own home. On the basis of such disclosure statement, the police party along with the accused went to the disclosed place and got recovered the dead body of Rahul vide recovery memo Ex.PK. The empty beer bottles, one of them broken as stated by the accused- appellant in his disclosure statement, were also recovered from the bank of canal and taken into custody. The appellant also got recovered cycle and school bag of the deceased from a shop of tea vend of PW-14 Daya Nand in a street leading to Railway road in the area of Dhanwapur. Both cycle and school bag containing books, geometry box and lunch box were taken into custody vide recovery memo Ex.PH. On 30.09.2007, the appellant suffered another disclosure statement (Ex.PO) in respect of concealment of motor- cycle No.HR26Y-9636 and mobile phone No.9911339603 and in pursuance of such statement, got recovered the motor-cycle and mobile phone after pointing out the place vide recovery memo Ex.PQ.
Firstly, the dead body of Rahul was sent to the General Hospital, Bawal for conducting post mortem examination, but the Board constituted for conducting examination referred the dead body to General Hospital, Rewari with the report that the body was in putrified state. At General Hospital, Rewari during examination of the dead body, the Board of Doctors opined that the dead body is at advanced stage of putrification. Kumar Vimal 2013.07.20 15:25 I attest to the accuracy and integrity of this document Chandigarh CRA No.198-DB of 2009 4 Maggots present all over the body and cloth present in the mouth. Therefore, it is difficult for them to conduct post-mortem at General Hospital, Rewari, so the dead body was referred to PGIMS, Rohtak to find out the exact cause of death. Ultimately, the post-mortem examination on the dead body of Rahul was conducted on 27.09.2007 at about 4.45 PM by PW-26 Dr. Vinod Kumar Kangra, who was posted as Medical Officer at PGIMS, Rohtak on that date. In his opinion, the cause of death was gagging coupled with head injury. The time between death and post-mortem was between 3 to 5 days. On completion of necessary formalities, the accused was made to stand trial for the offences punishable under Sections 365, 302 & 201 IPC.
To prove the guilt against the accused, the prosecution has examined as many as 26 witnesses. However, during trial PW-7 Digpal Singh, father of the deceased as well as the author of FIR; PW-8 Rampal, brother-in-law (wife's brother) of Digpal and PW-6 Madan Singh, another brother-in-law of Digpal have turned hostile and were cross-examined by the prosecution. Apart from examining the formal witnesses, the prosecution has also examined PW-12 C. Hakumddin and PW-13 SI Rajinder Singh, the Investigating Officer, who deposed with regard to the recoveries effected in pursuance of the disclosure statements suffered by the appellant. PW-5 SI Sahi Ram from P.S. Rewari was examined in respect of the proceedings conducted in the area of Village Garhi Bolni. The prosecution also examined PW-18 Seema Nair, Nodal Officer from Idea Cellular Ltd., who brought the customer application form of Tirthankar Basu to whom Mobile No.9911339603 belongs. A perusal of the record shows that such customer application form (Ex.PS/1) is dated 22.06.2008.
Kumar Vimal 2013.07.20 15:25 I attest to the accuracy and integrity of this document Chandigarh CRA No.198-DB of 2009 5
After going through the evidence on record, the learned trial Court convicted and sentenced the appellant, as mentioned above.
Before this Court, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the charges against the appellant by reliable and cogent evidence. The prosecution has not produced any evidence in respect of ransom call said to have been made on 24.09.2007 from landline No.01274320037, which as per the disclosure statement of the appellant is a STD booth at Dharuhera. Neither the STD owner nor any other evidence has been produced to support the allegation that it was the appellant alone, who made the ransom call on the said date and from the said landline number. It is argued that from Mobile No.9911339603 the call has been made to phone No.2279311 with STD Code 0124 i.e. Gurgaon, but there is no evidence that this landline number belongs to whom. From the call details produced in respect of Mobile No.9911339603, it transpires that no call is made from the said mobile to the mobile of Digpal. It is also argued that there is no evidence that the appellant was user of the aforesaid mobile in September, 2007, when the record produced by the prosecution relates to Tirthankar Basu and not to PW-17 Rajesh Kumar.
It is also argued that the disclosure statements leading to the recoveries of dead body, motor cycle, cycle & school bag are sought to be proved by examining the police officials alone. None of the independent witness associated by the Police at the time of recording of disclosure statement has either been not examined or has not supported prosecution. It is further argued that the police was already in the knowledge of the recovery of dead body on the bank of a canal in the area of village Garhi Bolni and that the entire process of disclosure statements has been antedated Kumar Vimal 2013.07.20 15:25 I attest to the accuracy and integrity of this document Chandigarh CRA No.198-DB of 2009 6 and, therefore, such statements are not reliable and sufficient to convict the appellant.
Having heard learned counsel for the appellant, we find that it is a case of shoddy investigation on the part of the Police. The prosecution has failed to link ransom calls as that made by the appellant. Firstly, there is no evidence that first call on 24.09.2007 was made by the appellant from a STD booth in the area of Dharuhera. The STD owner or any record of call was made from that booth and by the appellant has not been collected. Though PW-17 Rajesh Kumar has admitted in cross-examination by the Public Prosecutor that SIM card No.9911339603 was in his name, but he does not know Parveen-appellant. He denied his relationship with Parveen, as his brother-in-law. Even if the SIM card is taken to be in use by Praveen and that he called Gurgaon landline Number 2279311, said to be in the name of Hansa Devi, mother of the appellant, but it does not lead to any inference of ransom call. It only proves use of SIM card of No.9911339603 by the appellant. Still further, PW-18 Seema Nair has brought the customer application form in respect of the customer to whom the SIM card was given subsequently and not the record of the customer, who was given this SIM number during the period relevant to the present controversy. Since the link in respect of making of ransom call is missing, we are unable to uphold the conviction of the appellant for an offence punishable under Section 365 IPC.
However, we find that even though PW-7 Digpal Singh, father of the deceased as well as the author of FIR; PW-8 Rampal, brother-in-law (wife's brother) of Digpal as well as PW-6 Madan Singh along with other witnesses of the disclosure statements have turned hostile, but the evidence of the police officials in recording of disclosure statements and recoveries in pursuance of such statements are reliable and trustworthy. Such evidence Kumar Vimal 2013.07.20 15:25 I attest to the accuracy and integrity of this document Chandigarh CRA No.198-DB of 2009 7 completes the chain of events and sufficient to maintain the conviction of the appellant for an offence punishable under Sections 302 and 201 IPC.
The first question needs to be examined is; whether the dead body was already recovered on 27.09.2007 from the place, which was disclosed by the appellant in his disclosure statement Ex.PJ or it was recovered only in pursuance of the statement made by the accused on 27.09.2007 around 7-8 AM. The statements of PW-13 SI Rajinder Singh, the Investigating Officer and PW-12 Constable Hakmuddin, who have arrested the appellant from his house, are to the effect that the appellant was arrested in the mid-night of 26/27.09.2007 at about 12.15 AM and thereafter his disclosure statement was recorded. It was in pursuance of such statement, the accused led both these witnesses along with the complainant to District Rewari in the area of village Gari Bolni and got recovered the dead body of Rahul near 7th electric pole under a sheesham tree in the canal. The said disclosure statement is corroborated by the testimony of PW-5 SI Sahi Ram, who deposed that he received information from PW-13 SI Rajinder Singh, the Investigating Officer that one dead body is lying in the canal falling within his jurisdiction. He was asked to reach at the place of recovery of the dead body. He also recorded statement of Digpal at 8.40 AM on 27.09.2007 in respect of recovery proceedings of the dead body of Rahul. The witness has denied the suggestion that it was he, who flashed message to the Police Station, Gurgaon after finding a dead body and thereafter police from Gurgaon reached. Though the distance of the house of the complainant and that of the canal from where the dead body was recovered has not come on record, but the distance between Gurgaon and Rewari is said to be 55 kms. In any case, the house of the deceased and the place of recovery are not said to be in near vicinity, as the prosecution evidence is to the effect Kumar Vimal 2013.07.20 15:25 I attest to the accuracy and integrity of this document Chandigarh CRA No.198-DB of 2009 8 that the appellant has used motor-cycle to reach the area of village Gari Bolni. There is no reason for PW-13 SI Rajinder Singh; PW-12 Constable Hakmuddin and PW-5 SI Sahi Ram to depose falsely or to implicate the appellant. In his statement recorded under Section 313 Cr.P.C., the appellant has stated that he has been implicated falsely by the police to show that they have cracked murder mystery. Neither PW-13 SI Rajinder Singh; PW-12 Constable Hakmuddin or PW-5 SI Sahi Ram have any axe to grind against the appellant and that their testimonies are not only consistent, but also trustworthy. We find that the prosecution has been able to prove that the dead body was recovered from the area of village Gari Bolni in pursuance of the disclosure statement of the appellant. The recovery of a dead body from a place, which is concealed, is a strong incriminating circumstance against the appellant. Merely because the attesting witnesses of the disclosure statement have turned hostile will not create doubt on the disclosure statement suffered by the appellant, which led to recovery of dead body. The cycle and the school bag, containing books of English, Hindi, Mathematics and Science etc. with name of Rahul written and from the place disclosed by the appellant corroborated the prosecution story in its entirety. The place of recovery is tea vend of Daya Nand in a street leading to Railway road in the area of Dhanwapur. The said place of concealing the cycle and school bag was only within the knowledge of the appellant and thus, the prosecution story in this regard cannot be disbelieved. Lastly, the motor-cycle and mobile phone were also recovered in pursuance of another disclosure statement Ex.PO suffered by the appellant on 30.09.2007. There is no reason to doubt the recovery of motor-cycle and mobile phone from the house of the accused itself on the basis of disclosure statement suffered by him.
Kumar Vimal2013.07.20 15:25 I attest to the accuracy and integrity of this document Chandigarh CRA No.198-DB of 2009 9
The admitted fact is that the appellant is the cousin of the deceased inasmuch as the mother of the appellant is the cousin sister of the complainant. Such relationship could not create doubt in the mind of the child, when he accompanied the appellant. It also explains the reasons as to why the complainant and other witnesses resiled from their testimonies, as supporting the prosecution case in Court will lead to conviction of the nephew (sister's son) of the complainant himself.
The motive set up by the prosecution is that of ransom claimed from the father of the deceased, as he has received sale consideration of his agricultural land. Though the complainant has not supported the prosecution case to that extent, but in view of the other evidence on record, as discussed above, we find that the prosecution has been able to complete the chain of circumstances so as to lead to a conclusion that it is the appellant alone, who has taken the life of the deceased even though the police has conducted a shoddy investigation.
In view of the above discussion, the conviction of the appellant for an offence punishable under Section 365 IPC is not sustainable. However, the appellant stands convicted for the offences punishable under Sections 302 and 201 IPC.
With the said modification in the judgment of conviction, the appeal stands disposed of.
(HEMANT GUPTA)
JUDGE
July 16, 2013 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2013.07.20 15:25
I attest to the accuracy and
integrity of this document
Chandigarh