Punjab-Haryana High Court
Nemwati And Others vs State Of Haryana on 2 February, 2012
Author: T.P.S. Mann
Bench: Satish Kumar Mittal, T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. D-395-DB of 2008
Date of Decision : February 02, 2012
Nemwati and others
....Appellants
Versus
State of Haryana
.....Respondent
Criminal Appeal No. D-409-DB of 2008
Sham alias Shami and another
....Appellants
Versus
State of Haryana
.....Respondent
Criminal Appeal No. S-1102-SB of 2008
Hardev
....Appellant
Versus
State of Haryana
.....Respondent
Criminal Appeal No. S-1664-SB of 2008
Bhola
....Appellant
Versus
State of Haryana
.....Respondent
Crl. Appeal No. D-395-DB of 2008 -2-
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Baldev Singh, Senior Advocate with
Mr. Sudhir Sharma, Advocate
for the appellants
(in Criminal Appeal No.D-395-DB of 2008)
Mr. Ashwani Bhardwaj, Advocate
for the appellants
(in Criminal Appeal No.D-409-DB of 2008)
Mr. Pradeep Goyal, Advocate
for the appellant
(in Criminal Appeal No.S-1102-SB of 2008)
Mr. Mohd. Yousaf, Advocate
for the appellant
(in Criminal Appeal No.S-1664-SB of 2008)
Mr. Harbhajan Singh Sran, Addl. Advocate General, Hry.
T.P.S. MANN, J.
By one judgment, the Court intends to dispose of all the above mentioned appeals, as they have arisen out of one and the same judgment of conviction and order of sentence dated 5/8.5.2008 passed by Additional Sessions Judge, Faridabad.
The appellants in all the appeals, alongwith their co- accused Mohar Singh, were tried for the offences under Sections 120-B, 364/34, 364-A/149, 302/34 and 201/34 IPC. Vide impugned judgment and order, all the appellants were convicted and sentenced as follows:-
Crl. Appeal No. D-395-DB of 2008 -3-
Name Offence Sentence
Sudhir and Section Rigorous imprisonment for life and
Sham 302 read to pay a fine of Rs.2,000/- each
with and in default of payment of fine,
Section the defaulting appellant to further
34 IPC undergo rigorous imprisonment for
two years;
Section Rigorous imprisonment for ten
364 read years and to pay a fine of
with Rs.1,000/- each and in default of
Section payment of fine, the defaulting
34 IPC appellant to further undergo
rigorous imprisonment for one year;
Sudhir, Section Rigorous imprisonment for five
Sham and 201 read years and to pay a fine of
Bhola alias with Rs.1,000/- each and in default of
Dharambir Section payment of fine, the defaulting
34 IPC appellant to further undergo
rigorous imprisonment for one year;
Nemwati, Section Rigorous imprisonment for life and
Lal Chand, 120-B to pay a fine of Rs.2,000/- each
Keshar read with and in default of payment of fine,
Devi, Sham Sections the defaulting appellant to further
and Sudhir 364 and undergo rigorous imprisonment for
302 IPC. two years; and
Hardev Section Rigorous imprisonment for ten
120-B years and to pay a fine of
read with Rs.1,000/- and in default of
Section payment of fine, to further undergo
364 IPC rigorous imprisonment for one year.
The substantive sentences of appellants Sudhir and Sham were ordered to run concurrently. The period of imprisonment already undergone by the appellants during investigation and trial of the case was ordered to be set off from the sentence imposed. However, Mohar Singh, co-accused of the appellants was acquitted of all the charges framed against Crl. Appeal No. D-395-DB of 2008 -4- him. The appellants were also acquitted of the charge under Section 364-A IPC.
According to the prosecution, on 7.2.2005 at about 7.00 a.m., Anand @ Golu, aged about 9 years, had gone to his school i.e. DAV School, Hodal but did not return from the school. Usually, he would come back at about 1.30 p.m. When he did not return upto 2/2.30 p.m., complainant Sham Charan and others searched for him and also made enquiries from his class-mates, teachers and relatives but in vain. Thereafter, the complainant lodged a missing report Ex. P2 with the police. On 9.2.2005, a telephonic call was received at the house of the complainant thereby raising a demand of Rs.15,00,000/- as ransom and asking the complainant to reach Alwar within four days otherwise Anand would be killed. On the same day, the complainant made statement Ex. P6 before ASI Rattan Singh, who after making endorsement on it sent the same to Police Station, Hodal where, on its basis, FIR No. 27 dated 9.2.2005 under Section 364-A IPC was registered by ASI Sujan Singh.
During the course of investigation, on 23.8.2005, Inspector Rajbir collected the details of phone call Ex. P81 and arrested Sudhir appellant from his shop at Gorota Chowk on the basis of statement of Kamal Singh PW, who stated that he had used mobile hand set of appellant Sudhir by inserting his SIM Crl. Appeal No. D-395-DB of 2008 -5- No.9897575531 because of low battery of his own mobile set. On interrogation, Sudhir appellant sufferred disclosure statement and got recovered mobile phone Ex. P49 make Motorola with a charger, which was used by him. On the same day, Inspector Rajbir also arrested Dharambir @ Bhola appellant at Gorota Chowk from a three wheeler. On interrogation, he also suffered a disclosure statement to the effect that he, at the instance of Sham, Sudhir and another person, had dug a pit and in his presence, said Sham, Sudhir etc. had burried the dead body of a child, namely, Anand @ Golu. He also disclosed that he could point out the place from where they had been making calls for ransom. In pursuance of the aforesaid disclosure statement, the Investigating Officer, after obtaining orders Mark E of the City Magistrate, alongwith Bhupinder Singh, Tehsildar, Dr. Vipin Kumar and other police officials as well as the complainant visited the spot and recovered a skeleton from the agricultural fields of Bachu of village Gorota, which was taken into possession vide seizure memo. Ex. P11. Rough site plan Ex.P77 was also prepared. The skeleton was identified by the complainant and by Dharambir to be of Anand @ Golu. The photographs Exs. P32 to P38 and negatives Exs. P39 to P45 of the dead body were taken and video cassette Ex.P31 was also prepared at the spot. Dr. Vipin Kumar also made a detailed report Ex. P64 for referring the skeleton to PGIMS, Rohtak. The Investigating Officer also Crl. Appeal No. D-395-DB of 2008 -6- prepared inquest proceedings Ex.P79.
On 24.8.1995, Dr. S.K.Dhattarwal, Associate Professor of PGIMS, Rohtak conducted post mortem on the dead body of Golu and vide his report Ex. P27, the skeleton was found to be of a male child of 9 years but no cause of death could be ascertained as time that elapsed since death was about six months.
Further case of the prosecution was that on 25.8.2005, the Investigating Officer arrested appellants Keshar Devi, Nemwati and Lal Chand. On interrogation, the aforementioned appellants also suffered their respective disclosure statements.
Thereafter, the investigation was conducted by Inspector Om Parkash. On 29.8.2005, he arrested Hardev and Sham appellants from Hodal. On 30.8.2005, on interrogation, Sham appellant suffered a disclosure statement and in pursuance of the same got recovered school bag Ex. P26 of deceased Anand @ Golu containing books Ex. P22 to P25 on 2.9.2005, which were taken into possession vide memo. Ex.P21. Rough site plan of the place of recovery Ex.P66 was prepared. Similarly, Hardev appellant also suffered a disclosure statement and in pursuance of the same got demarcated the place from where he had purchased sim card vide demarcation memo Ex. Crl. Appeal No. D-395-DB of 2008 -7- P63. Rough site plan Ex. P68 was also prepared. Rough site plan Ex. P69 depicting the places from where various calls were made from the sim card was prepared by the Investigating Officer. On 2.9.2005 appellants- Sudhir and Dharambir @ Bhola made disclosure statements and on the basis of the same, appellant Dharambir @ Bhola got recovered Kassi (spade) which was used to make burial pit for dead body. The same was taken into custody vide seizure memo. Ex. P61. Rough site plan of the place of recovery Ex. P70 was prepared. On the same day, Sham also made a disclosure statement and got demarcated the place from where Anand alias Golu was lifted vide demarcation memo Ex.P58. This appellant also got demarcated the site of burial of the dead body Ex. P59. Appellant Hardev also made a disclosure statement and got demarcated the site from where telephone calls were made vide demarcation memo. Ex.P62. He also demarcated the site from where sim card was purchased vide memo. Ex. P63. The Investigating Officer also prepared rough site plan Ex. P71 of the place from where deceased Anand was lifted.
It was also the case of the prosecution that on 5.9.2005, accused Mohar Singh was arrested and on 6.9.2005, he suffered a disclosure statement and got recovered a Maruti Van which was taken into possession vide memo. Ex. P10. Crl. Appeal No. D-395-DB of 2008 -8- Rough site plan Ex. P72 of the place of recovery of Maruti Van was prepared. Rough site plan of abduction of deceased Anand @ Golu Ex. P73 was also prepared. Demarcation memos. Exs.P8 and P9 respectively were also prepared regarding the places from where deceased Anand @ Golu was lifted and burried. On 17.10.2005 Subhash Chander, Patwari Halqa, Gorota visited the spot and prepared aksh-shajra Ex. P30.
Upon completion of investigation and presentation of challan followed by its commitment to the Court of Sessions, all the appellants and Mohar Singh were charged for the aforementioned offences, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 R.K.Bakshi, PW2 Tarun Bajaj, PW3 HC Jan Mohmad, PW4 ASI Sujan Singh, PW5 Constable Kishan Singh, PW6 ASI Rattan Singh, PW7 Constable Hawa Singh, PW8 complainant Sham Charan, PW9 Dr. S.K.Dhattarwal, PW10 Subhash Chander, Patwari Halqa, PW11 Bhupinder Singh, Tehsildar, PW12 Kamal Singh, PW13 Dori Lal, Photographer, PW14 SI Mahender Singh, PW15 HC Ram Babu, PW16 HC Sultan Singh, PW17 Dr. Vipin Kumar, PW18 Inspecotr Om Parkash, PW19 Manoj Madan and PW20 Inspector Rajbir Singh.
When the appellants were examined under Section Crl. Appeal No. D-395-DB of 2008 -9- 313 Cr.P.C., they denied the entire allegations of the prosecution and pleaded false implication in the present case.
In defence, the accused examined DW1 Moti Ram, DW2 Ranjeet Singh and DW3 Madan Mohan Bajaj.
After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court while acquitting Mohar Singh, convicted and sentenced the appellants, as mentioned above.
Learned counsel for the parties have been heard and the evidence scanned minutely with their able assistance.
Learned counsel for the appellants have argued that the prosecution miserably failed in its duty to prove its case against the appellants beyond reasonable doubt. It has not been able to establish the motive which could have impelled the appellants to commit the crime. The skeletal remains said to have been recovered are not established to be that of Anand @ Golu. Even the cause of death had not been established. No evidence had been produced to establish that the deceased was last seen in the company of any of the accused. Similarly, recovery of the dead body and books of the deceased is not sufficient to connect the appellants with the crime. Prayer has, accordingly, been made for acceptance of the appeals and Crl. Appeal No. D-395-DB of 2008 -10- setting aside the conviction and sentences of the appellants.
On the other hand, learned State counsel has submitted that the prosecution had led sufficient evidence to bring home guilt against the appellants and, therefore, there is no merit in any of the appeals. Resultantly, the appeals be dismissed.
Taking up the case of Nemwati, Lal Chand and Keshar Devi- appellants, it may be noticed that they have been held guilty of criminal conspiracy in order to kidnap and murder Anand @ Golu. In order to establish their guilt, the prosecution relied upon the statements made by Sudhir and Sham @ Shami while they were in police custody. In pursuance to those statements made by Sudhir and Sham @ Shami, nothing had been got recovered. Therefore, those statements made by the two co-accused of Nemwati, Lal Chand and Keshar Devi were hit by Section 25 of the Evidence Act as having been made to a Police Officer and not protected under Section 27 of the Evidence Act when nothing had been discovered in consequence of such a confession made to a Police Officer while in custody. Even PW8 Sham Charan, who was grand-father of Anand @ Golu and the star witness of the prosecution, did not mention about their involvement in the crime. The evidence collected by the police in respect of telephonic calls made for ransom do not point any accusing finger towards Nemwati, Lal Chand and Keshar Devi- Crl. Appeal No. D-395-DB of 2008 -11- appellants. At the most, it could be a suspicion against the aforementioned three appellants but that cannot take the place of proof so as to sustain the charge for which they stand convicted and sentenced by the trial Court. Under these circumstances, the Court has no other option but to set aside the impugned judgment passed by the trial Court so far as conviction and sentence of Nemwati, Lal Chand and Keshar Devi appellants is concerned.
At the same time, the prosecution had led sufficient material to establish the guilt of Sudhir, Sham @ Shami, Hardev and Bhola-appellants. According to the testimony of PW1 R.K. Bakshi, Zonal Officer, Bharti Airtel Limited, telephonic calls were made by accused Sudhir, Sham @ Shami and Hardev on landline No. 236921 belonging to PW8 Sham Charan. PW2 Tarun Bajaj had deposed that SIM Card No. 9896070181 was purchased from him by Hardev. This PW, who is a shop-keeper and dealing in mobile phone connections, is not shown to be having any enmity against Hardev and, therefore, could not have falsely identified him in the Court. Merely because no identification parade was held is no ground to reject the prosecution case regarding identification of Hardev as he remained with PW2 Tarun Bajaj for a substantial period of time while purchasing the SIM Card.
It has come on the record that pursuant to disclosure statements Ex.P47 made by Sudhir and Ex.P50 by Bhola coupled Crl. Appeal No. D-395-DB of 2008 -12- with their supplementary statements Ex.P54 and Ex.P55, respectively, skeleton of the deceased, alongwith pair of shoes Ex.P12, Tabeez Ex.P13, white shirt Ex.P14, pair of socks Ex.P15, underwear Ex.P16, vest Ex.P17, jersy Ex.P18, pant Ex.P19, books Ex.P22 to Ex.P25 and school bag Ex.P26 were recovered and taken into possession vide memo. Ex.P21. PW11, Shri Bhupinder Singh, Tehsildar and PW17 Dr. Vipin Kumar corroborated the recovery of the aforementioned articles. PW8 Sham Charan had identified from the skeleton and the other articles that they belonged to his grand son Anand @ Golu. Similarly, Bhola had suffered disclosure statement Ex.P50 and supplementary statement Ex.P55 and, thereafter led the police to the designated place from where he got recovered Kassi Ex.P60, which was taken into possession vide memo. Ex.P61. The said Kassi had been used for burying the dead body of deceased Anand @ Golu.
There is testimony of PW12 Kamal Singh available on the record to the effect that he had used the mobile hand set of Sudhir accused because of low battery of his own mobile set. That explained the call emanating from SIM 9897575531 belonging to PW12 Kamal Singh, which he had made from the mobile hand set of Sudhir with IMEI No.989680563987200. In fact, according to PW20 Rajbir Singh, the ransom call was Crl. Appeal No. D-395-DB of 2008 -13- received from mobile No.9896070181. The said mobile phone without SIM card was got recovered at the instance of Sudhir accused. Merely because the SIM card had not been recovered the prosecution cannot be thrown out as call records Ex.P1 and Ex.P81 clearly establish that mobile hand set with IMEI No.989680563987200 was being used by Sudhir and others for making ransom calls.
The dead body had been recovered after about six months of the occurrence. At the time of the recovery of the dead body there was an electric wire found present around its neck that corroborated the factum of the deceased having been strangulated to death. The testimony of PW9 Dr. S.K. Dhatterwal that no cause of death could be ascertained is of no help to the defence as the doctor had clearly mentioned that time since death was about six months. The doctor had found all the clothes smudged with decomposed tissues and sand and on inner sides of clothes, pieces of decomposed skin and soft tissues were present. The socks contained small bones of feet with tendon and ligaments.
In view of the above discussion, this Court is of the view that the prosecution has been successful in proving its case against Sham @ Shami, Sudhir, Hardev and Bhola. They have been rightly convicted and sentenced by the trial Court. No case Crl. Appeal No. D-395-DB of 2008 -14- is made out for any interference in their conviction and sentence.
Resultantly, the impugned judgment of conviction and the order of sentence qua Nemwati, Lal Chand and Keshar Devi (appellants in Criminal Appeal No.D-395-DB of 2008) are set aside and they are acquitted of the charges framed against them, whereas the conviction and sentence of the remaining accused, namely Sham alias Shami and Sudhir (appellants in Criminal Appeal No.D-409-DB of 2008), Hardev (appellant in Criminal Appeal No.S-1102-SB of 2008) and Bhola (appellant in Criminal Appeal No.S-1664-SB of 2008) is upheld.
Consequently, Criminal Appeal No.D-395-DB of 2008 is allowed and Criminal Appeal Nos.D-409-DB, S-1102-SB and S-1664-SB of 2008 are dismissed. Appellants No.1 and 2 in Criminal Appeal No.D-395-DB of 2008, namely Nemwati and Lal Chand, who are in custody, be set at liberty forthwith, if not required in any other case.
( SATISH KUMAR MITTAL ) ( T.P.S. MANN )
JUDGE JUDGE
February 02, 2012
satish