Punjab-Haryana High Court
Devender Singh And Others vs State Of Haryana on 21 February, 2014
Author: Kuldip Singh
Bench: Satish Kumar Mittal, Kuldip Singh
Crl. Appeal No. D-246-DB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. A. No. D-246-DB of 2009
Date of Decision : 21.2.2014.
Devender Singh and others ........ Appellants
Versus
State of Haryana ........ Respondent
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE KULDIP SINGH
Present:- Mr. Mohit Garg, Advocate, for the appellants.
Ms. Shalini Attri, DAG, Haryana,
for respondent-State.
KULDIP SINGH, J.
Devender Singh son of Harjit Singh, resident of village Pattaki Khauri, P.S. Sikri, District Bharatpur, Rajasthan, Hardeep son of Bachan Singh, resident of village Jaitpur, P.S. Badapur Border, Delhi and Gurdeep Singh son of Bachan Singh, resident of village Gartesaki, P.S. Sikri, District Bharatpur, Rajasthan, have filed this appeal challenging the judgment and order dated 24.11.2008, passed by learned Additional Sessions Judge, Fatehabad, vide which they were convicted under Sections 302/34, 201/34 IPC and sentenced as under :-
Under Sections 302/34 IPC All the accused have been sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/- each, in default thereof, to further undergo rigorous imprisonment for six months.
Under Sections 201/34 IPC All the accused have also been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 2,000/- each, in default Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -2- thereof, to further undergo rigorous imprisonment for one month.
All the sentences have been ordered to run concurrently. The case was registered on the statement of Atma Singh (father of the deceased Raju). In his statement (Ex.PE) dated 5.4.2006, before ASI Fauja Singh, Incharge, Police Post Gurunanak Pura, Fatehabad, Atma Singh stated that he has four children. His son Raju and Ajay are residing with him and his wife. Both his sons do the labour work. His son Ajay was admitted in Government Hospital, Fatehabad, due to burn injuries. His son Raju aged about 27 years was in the habit of drinking. He used to remain under intoxication all the 24 hours. On 3.4.2006 at about 4:00 PM in the evening, Raju had gone to Mohalla Gurunanak Pura from his house for taking liquor. He did not come back to the house. On 4.4.2006, Kuwlant Singh son of Bimla Bhagtani, resident of Shakti Nagar, came to his house and enquired about Raju. He also said that Raju must be around here and he will come back as he drinks heavily. Raju will not go anywhere. On 5.4.2006, Gura Bai, wife of Atma Singh and Harjit Kaur, daughter of Atma Singh had seen Kulwant Singh twice coming and going on the kacha passage towards the fields of Kakka Ram Kamboj. They got suspicious as to why Kulwant Singh is visiting in that direction.
Therefore, Atma Singh accompanied by Bhagat Singh, Ex-Sarpanch was going to inform the police. When they reached near the house of Kakka Ram Kamboj, they came to know that a dead body is lying near the Government tubewell in the fields of Kakka Ram. They went to the spot and saw that the dead body is of Raju. His mouth seems to have been eaten by animals and his jaws were visible. The dead body was puffing up. He Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -3- does not know whether his son Raju has committed suicide or has been murdered. Atma Singh requested the police that post mortem should be got conducted so that truth may come out. ASI Fauja Singh recorded the police proceedings and sent the same to the police station and recorded the DDR, on the basis of which formal First Information Report (Ex.PA) was registered. On 7.4.2006, police conducted the inquest proceeding of the dead body. Rajesh Kumar, Photographer, was called and he took the photographs of the place of occurrence (Ex.P1 to Ex.P5). The post mortem of the dead body was got conducted. Investigation was initiated, which remained pending with the police.
On 20.5.2006, Ram Kumar (Municipal Councillor, Fatehabad) son of Hari Ram and Mohan Singh (Ex-Sarpanch of Bhima Basti, Fatehabad) son of Kartar Singh made identical statements to the police under Section 161 Cr.P.C., in which it was disclosed that on 20.5.2006, when they (Ram Kumar and Mohan Singh) were talking in the shop of Ram Singh, accused Gurdeep Singh, Devender Singh and Hardeep came together there and all the accused told them that on 2.4.2006 in the evening, they had come to the house of Raj Kumar alias Raju son of Atma Singh and slept there after taking meal. Next day, on 3.4.2006 at about 10:30 pm in the night, they made Raj Kumar alias Raju to drink liquor and took him towards the field in order to answer the call of nature. There Devender Singh and Hardeep strangulated Raju with help of a Parna (an Indian little cloth) and Gurdeep Singh was put to make surveillance and caution, if somebody comes. Devender Singh inflicted injuries on chest with both feet and knees and also inflicted injuries on the head of the Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -4- deceased. Thereafter, they all buried deceased Raju in the heap of Parali lying nearby after murdering him. They have committed a mistake. Now, the police is chasing them and that since the witnesses are on visiting terms with the police, therefore, they should be produced before the police. They further stated that Raju was murdered due to the reason that Raju had done wrong acts with a girl of their relations around 6/7 months ago and they were trying to murder Raju from that time. On the basis of the said statement, accused were apprehended. On 25.5.2006, accused Devender Singh suffered a disclosure statement (Ex.PL), admitting to have committed the murder in the manner disclosed to Ram Kumar and Mohan Singh and stated that he had hidden the Parna (an Indian little cloth) in the fields near the Parali. The said fact is within his exclusive knowledge and he can get the Parna (an Indian little cloth) recovered. Similarly, Hardeep on the same day also suffered disclosure statement (Ex.PM), admitting to have committed the murder in the manner stated above and stated that he can identify the place of occurrence. Accused Gurdeep Singh also suffered disclosure statement (Ex.PN), admitting to have committed the murder and offered to identify the scene of crime. Accordingly, accused Devender Singh got the said Parna (an Indian little cloth) recovered and the same was taken into possession, vide recovery memo Ex.PO. All the three accused demarcated the place of occurrence, vide memos Ex.PR to Ex.PT. After the completion of investigation, the challan was presented in the Court.
The trial Court chargesheeted the accused under Sections 302 and 201 read with Section 34 IPC. Accused pleaded not guilty and Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -5- claimed trial.
In support of its case, prosecution examined Bhagat Singh (PW1), SI Anil Kumar (PW2), Ram Kumar (PW3), Mohan Singh (PW4), SI Fauja Singh (PW5), EHC Ajit Singh (PW6), Atma Singh, complainant (PW7), Balwant Singh, Draftsman (PW8), Rajesh Kumar, Photographer (PW9), Inspector Ishwar Singh (PW10), Dr. Vijay Pal Khanagwal (PW11) and closed the evidence.
When examined under Section 313 Cr.P.C., accused denied the evidence as led against them. Accused Devender Singh stated that he had come to meet his relations at village Bhirdana. On 23.5.2006 when he alighted from the bus at bus stand, the police asked about his name and address and took him to CIA Staff, Fatehabad, where he was falsely implicated in this case. Accused Hardeep claimed that he had come to meet his relations at village Aherwan. On 24.5.2006, when he alighted from the bus at bus stand, the police asked about his name and address and took him to CIA Staff, Fatehabad, where this case was planted on him. Accused Gurdeep Singh stated that he had come to meet his relations at Bhirdana. On 24.5.2006, when he alighted from the bus at bus stand, the police asked about his name and address and took him to CIA Staff, Fatehabad, where this case was planted on him. Accused did not lead any evidence in defence.
After hearing the learned prosecution, learned defence counsel and going through the evidence, the learned Additional Sessions Judge convicted and sentenced the accused as aforesaid.
We have heard learned counsel for the appellants, learned Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -6- Deputy Advocate General for State and have also carefully gone through the file.
There is no eye-witness to the murder. This case is basically based on circumstantial evidence, which are the statements of Ram Kumar (PW3) and Mohan Singh (PW4), before whom the accused are stated to have made extra judicial confession on 20.5.2006. Accused Devender Singh accordingly got recovered Parna (an Indian little cloth) used in the crime. It is necessary to examine the statement of Dr. Vijay Pal Khanagwal (PW11). Dr. Khanagwal noted that clusters of eggs of flies were present over the clothes and body at places. Skin and underlying tissues were missing from the face, as a result underlying facial bones including orbits, nasal bone, zygomatic arches and both the jaws with teeth were exposed. Facial features were not identifiable. Both the hands were degloved and the feet were destocked. The tongue was putrefied and visible between the jaws. Ligature mark was found all around the neck. Following injuries were found on the person of the deceased during post mortem :-
1. A diffuse reddish contusion of size 6 x 4 cm present over the top of head, being 2.5 cm from midline on the right 1.5 cm on the left lying along the saggital plane. On dissection, ecchymosis was present in the layers of scalp, alongwith infiltration of blood in the pericranium. On further, dissection of the cranium, the brain matter was found to be putrefied and consisted of bloody pasty material.
2. A diffuse reddish contusion of size 9x6 cm present along the left parietal eminence situated in oblique direction along the saggital plane. On dissection layers of scalp showed ecchymosis alongwith pericranial infiltration of blood.
3. Ligating material :- A ligating material in form of a rolled up Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -7- piece of white cloth was found to be tied around the neck by means of a fixed knot situated below the right angle of mandible. There were two loops of the ligating material around the neck. Pieces of straw were found to be present between the loops of the ligating material and also at the knot.
The length of two free ends beyond the knot was 5 cm and 6.5 cm. The inner circumference of the loops was 28 cm and 28.5 cms respectively while that of the neck was 30 cm. The ligating material was removed with the knot intact.
Ligature Mark : A reddish mark was present all around the neck, situated 6 cms below centre of chin in midline on the front at the level of thyroid cartilage. It extended on both sides of neck to encircle it completely in the transverse place so as to lie 4 cms below right angle of mandible, 4.5 cm below left angle of mandible and on the back of neck 6 cm below the external occipital protuberance. The width of the ligature mark varied between 2 to 3.5 cm. On dissection, the underlying tissues were deeply ecchymosed including the muscles, laryngo tracheal cartilages and the thyroid cartilage as well as deep fascia. The hyoid bone was intact.
4. A diffuse reddish contusion of size 8x5 cm present on the right side of chest on its ant. Lateral aspect situated between the 3rd to 6th intercostals spaces. On dissection the underlying tissues including the intercostal muscles were ecchymosed.
5. A diffuse reddish contusion of size 7x5 cm present on the right side of abdomen at the right iliac fossa on its lower part, situated 11 cm away from midline. On dissection, the underlying tissues were ecchymosed.
All the injuries are ante mortem in nature. The cause of death was strangulation by ligature coupled with head injury. During cross examination, the doctor stated that Parna (Ex.P13) was not recovered during post mortem examination nor it was ever produced before him by Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -8- the Investigating Officer. In this way, the Parna alleged to have been recovered from the accused was denied to have been recovered during post mortem. The doctor has found legating material in the form of rolled up piece of white cloth around the neck by means of a fixed knot.
Atma Singh (father of the deceased) while appearing as PW7 stated that his son Raju was habitual drunkard. On 3.4.2006 in the evening, his son Raju went to bring liquor from Gurunanak Pura, Fatehabad. Thereafter, he did not return to the house. On next day i.e. 4.4.2006, Kulwant son of Bimla Bhagtani came to their house twice and enquired about Raju. He also told that Raju would himself come as he is addicted to liquor. Atma Singh further stated that on 5.4.2006, his wife Gura Bai and daughter Harjit Kaur had told him that Kulwant is seen going towards the fields of Kakka Singh. They decided to inform the police. When Atma Singh alongwith Bhagat Singh, Ex-Sarpanch, was going to the police station and reached near the house of Kakka Singh, he received information about a dead body lying near the Government tubewell. He went to spot and identified the dead body to be of his son Raju. The dead body was in decomposed condition. Atma Singh further stated that he does not know who killed his son Raju or as to whether he has committed suicide. He further stated that the post mortem was got conducted at Medical College, Rohtak.
During cross examination, Atma Singh stated that to his knowledge he had got no enmity with any person. He has never seen accused present in the Court. He does not know the accused. Accused never came to his house. They have no enmity with the accused. He has Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -9- seen the accused only today in the Court. He does not know how his son Raju was killed.
Now, taking up the circumstantial evidence, it comes out that Ram Kumar (PW3) and Mohan Singh (PW4), who had stated that accused had made extra judicial confession before them, turned hostile. They stated that they do not know the accused. No extra judicial confession was made by the accused before them. The questions in the nature of cross examination by the learned A.P.P. could not extract anything favourable from the witnesses. In this way, the only evidence of extra judicial confession connecting the accused with the crime is missing. So far as the identification of place of crime by the accused is concerned, the place of crime was already known to everybody. The place of crime was identified by the accused on 20.5.2006, whereas the crime took place probably on 3.4.2006 evening. Therefore, identification of place of crime by the accused is meaningless.
Now, we come to the recovery of Parna from accused Devender Singh. The statement of doctor, who conducted post mortem, as discussed above, shows that rolled up piece of white cloth was found around the neck of the deceased. The Parna recovered in this case from the accused at the time of crime, vide memo Ex.PO, was not shown to the doctor. It is surprising that if the piece of cloth used to strangulate the deceased was found during post mortem, then how the second Parna, with which the accused are alleged to have strangulated the deceased, was later on recovered by the police.
Now, most important is the statement of Inspector Ishwar Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -10- Singh, who appeared as PW10. Inspector Ishwar Singh has stated that on 12.5.2006 when he was posted at CIA Staff, Fatehabad, as Incharge, he received the file of this case for further investigation. According to him, on 20.5.2006, both Mohan Singh (Ex-Sarpanch) and Ram Kumar (Municipal Councillor, Fatehabad) made statements regarding extra judicial confession of the accused. On 25.5.2006, both the PWs produced accused Gurdeep Singh, Devender Singh and Hardeep before him. They were arrested. He further stated that on the disclosure statement of Devender Singh, a Parna concealed in the heap of Parali was got recovered and the same was taken into possession, vide memo Ex.PO. He also stated that the accused also identified the place of crime.
It is necessary here to see that the date of recording of statements of Mohan Singh and Ram Kumar (Ex.DA and Ex.DB) by Inspector Ishwar Singh has been apparently overwritten from 25.5.2006 to 20.5.2006. It appears that when the investigation was handed over to Inspector Ishwar Singh, murder mystery was still unsolved. Therefore, Inspector Ishwar Singh made a shortcut by recording the statements of Ram Kumar and Mohan Singh regarding the extra judicial confession of the accused. Though, the piece of cloth used to strangulate the deceased was found during post mortem, but even then Inspector Ishwar Singh was able to recover a Parna on the disclosure statement of Devender Singh, which is stated to have been used in strangulating the deceased. In this way, the false evidence was sought to be created without examining the fact that the piece of cloth used to strangulate the deceased was already found during post mortem. Then, according to Inspector Ishwar Singh, the Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -11- accused were produced before him by said Mohan Singh and Raj Kumar on 25.5.2006. It is strange where the accused remained for five days ? It is apparent from the statement of Mohan Singh and Raj Kumar (Ex.DA and Ex.DB) that their statements were recorded on 25.5.2006, which were later on overwritten to be 20.5.2006. The accused were apprehended then. Two of the accused belong to District Bharatpur (Rajasthan) and one belongs to Delhi. A story was made up that on the previous night, they had visited the house of deceased and stayed there for night. On the next day at about 10:30 PM, they had taken the deceased to the fields on the pretext of answering the call of nature and there deceased was killed. However, the statement of Atma Singh (father of the deceased) clearly shows that he has seen the accused for the first time. Atma Singh does not state that all or any of the accused ever visited his house and stayed there for night. Even in the First Information Report, the stand of Atma Singh is that his son had went out to fetch liquor on 3.4.2006 at about 4:00 PM in the evening and thereafter, did not return. Therefore, it is apparent that Inspector Ishwar Singh cooked up a new story of the accused staying at night in the house of the deceased and next day took him out to the fields and killed him. This is against the statement of Atma Singh (father of the deceased). Accused were not previously known to the deceased. There is absolutely no motive on their part to kill the deceased. Therefore, as claimed by the accused, it is quite possible that they came to Fatehabad for one or the other work and were picked up from the bus stand around 24.5.2006 and this case was planted on them.
It is observed that Inspector Ishwar Singh did not conduct the Sharma Sanjiv Kumar 2014.03.20 10:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. D-246-DB of 2009 -12- investigation in a fair and faithful manner. Rather, it appears that in his zeal to resolve the unsolved murder case, he picked up three persons, two belonging to Rajasthan and one belonging to Delhi and planted this case on them by recording their extra judicial confession before one Municipal Councillor and one Ex-Sarpanch. Both these witnesses did not support the prosecution case. The accused had absolutely no reason to go to them as they were not previously known to Ram Kumar (PW3) and Mohan Singh (PW4). The abovenoted discussion clearly shows that it is case of no evidence against the accused.
The irresponsible behaviour of Inspector Ishwar Singh deserves to be deprecated. It is directed that copy of the judgment be sent to Director General of Police, Haryana, for conducting an inquiry against Inspector Ishwar Singh, then posted in CIA Staff, Fatehabad, for irresponsible and reckless investigation in this case.
In view of the above discussion, the instant appeal is allowed, and the impugned judgment of conviction and the order of sentence passed against the appellants are set aside. Devender Singh (appellant No.1), who is in custody, be set at liberty forthwith, if not required in any other case.
(SATISH KUMAR MITTAL) (KULDIP SINGH)
JUDGE JUDGE
21.2.2014
sjks
Whether referred to the Reporter or not ? : Yes / No
Sharma Sanjiv Kumar
2014.03.20 10:31
I attest to the accuracy and
integrity of this document
Chandigarh