Punjab-Haryana High Court
State Of Haryana vs Mukesh Kumar on 15 September, 2014
Author: Surinder Gupta
Bench: Rajive Bhalla, Surinder Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-878-DB-2002
th
DATE OF DECISION : 15 SEPTEMBER, 2014
Mukesh Kumar
.... Appellant
Versus
State of Haryana
.... Respondent
CRA-D-48-DB-2003
State of Haryana
.... Appellant
Versus
Mukesh Kumar
.... Respondent
CORAM : HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
****
Present : Mr. R. S. Rai, Senior Advocate with
Mr. D. S. Brar, Advocate
for the appellant (in CRA-D-878-DB-2002).
for respondent (in CRA-D-48-DB-2003).
Mr. Sandeep Varmani, Additional Advocate General, Haryana
for appellant (in CRA-D-48-DB-2003).
for respondent (in CRA-D-878-DB-2002).
****
SURINDER GUPTA, J.
This appeal is directed against the judgment dated 01.10.2002 in sessions case no.9 passed by Sessions Judge, Gurgaon, whereby Mukesh CRA-D-878-DB-2002 and CRA-D-48-DB-2003 {2} Kumar-appellant was convicted in case bearing FIR no.148 dated 07.03.2000, Police station City, Gurgaon, and sentenced as follows:
Under Section Sentences 302 IPC To under go rigorous imprisonment for life and to pay a
fine of `2000/-. In default of payment of fine to undergo rigorous imprisonment for a period of three months. 364 IPC To undergo rigorous imprisonment for seven years and to pay a fine of `2000/-. In default of payment of fine to undergo rigorous imprisonment for a period of two months.
201 Rigorous imprisonment for three years.
All the substantive sentences to run concurrently. Brief facts:
Sushil Kumar son of complainant Ved Pal Singh, aged 24 years, was a student of BA final year in DSD College, Gurgaon. On 06.03.2000 he left for the college on his cycle at 9 am but did not return.
The complainant, apprehending some miss-happening, started searching for his son, along with Davinder Singh son of Balbir Singh resident of house number 86, Sector 17, Gurgaon. They reached HUDA Park, Sector 14, Gurgaon, where cycle of his son was found but he could not be located there, as such they took his cycle and returned home. At about 5.00pm, a caller made telephone call to the complainant informing him that Sushil had been kidnapped and demanded a ransom of Rs.1,00,000/- for his release. Caller threatened to kill Sushil and cut him into pieces in the event of matter being reported to the police. The complainant continued searching for CRA-D-878-DB-2002 and CRA-D-48-DB-2003 {3} Sushil till midnight without any success. On the next day morning Rajinder Pal Nadar (PW-14) met the complainant and told him that on 06.03.2000, he had seen Sushil at IFFCO chowk around noon time sitting on the back seat of motorcycle bearing no. HR26-G-6325 (Splendor Hero Honda) being driven by Mukesh son of Daya Ram resident of Barota, who was earlier known to him and they were going towards Delhi. The complainant reported the matter to the police vide his complainant Ex. PQ wherein he expressed suspicion that Mukesh Kumar who had met his son once/twice earlier, had kidnapped Sushil Kumar and called for the ransom of Rs.1,00,000/-.
On the complaint of Ved Pal Singh Ex. PQ, formal FIR was registered at Police Station City Gurgaon for offence punishable under Sections 364-A IPC.
Investigation:
After registration of FIR, Inspector Rajinder Singh, who at the relevant time was posted as SHO, PS City Gurgaon, along with his police party visited HUDA Park, Sector-14 on 07.03.2000 and prepared rough site plan of the place from where the cycle of the son of the complainant was found. Facts of the case were brought to the notice of the higher police authorities and on their instructions ASI Naresh Kumar was deputed at the house of complainant in order to trace the call if received from kidnapper. By that time calling line identification facility had already been provided on the telephone of the complainant and directions were issued to ASI Naresh CRA-D-878-DB-2002 and CRA-D-48-DB-2003 {4} Kumar to give information to the senior police officer in the event of any call of ransom being received. On 07.03.2000 at about 12.00 noon, ASI Naresh Kumar informed on his walky talky that a call for ransom was received from village Tapukara (Rajasthan) from telephone number 0149343367. On receipt of this information Inspector Rajinder Singh formed a raiding party and visited village Tapukara (Rajasthan) at Babbal STD PCO Booth from where the call had been made. There DSP Laxman Singh Gaur met him and was apprised of entire case. Umesh Sharma (PW-
6) was present at the STD Booth and informed the police that a young boy wearing black jacket had come on the motorcycle to make that call and handed over computer slip Ex. PE relating to that call, which was taken into possession vide recovery memo Ex. PE/1. The time of the call written on the slip was 11.56am. The police party took position near the STD booth.
At about 2.30 pm the appellant came there on motorcycle. On witnessing the police party he tried to take 'U' turn, but the motorcycle skidded and he was apprehended. His motorcycle bearing number HR-26-G-6325 along with RC was taken into possession vide recovery memo Ex. PT.
At that time appellant was wearing black jacket which was blood stained and was taken into possession vide recovery memo Ex. PU. The jacket was put in a parcel which was sealed with the seal bearing impressions 'HK'.
On interrogation, the appellant suffered a disclosure statement Ex. PR to the effect that he had abducted Sushil Kumar to pay off his debt of CRA-D-878-DB-2002 and CRA-D-48-DB-2003 {5} `1,00,000/-. He took Sushil to Budha Garden, Delhi and served him liquor. When Sushil was under the influence of liquor he strangulated and killed him by causing injuries with a broken bottle. He took his bag from the spot and threw the same on the way. Thereafter he made a call from Gurgaon STD Booth calling for ransom and on the next day from Village Tapukara, District Alwar. He disclosed the location of the dead body of Sushil Kumar which he had concealed under the bushes at Budha Garden, Delhi vide disclosure memo Ex. PR and lead the police party to Budha Garden, Delhi where Head Constable of Delhi Police met the police party of Haryana Police. One kilometer inside the garden the appellant identified the place of occurrence and got recovered the dead body of Sushil Kumar.
At about 5.00 pm SI Mahesh Parkash, PS Chanakya Puri (PW-
24) reached the place of occurrence along with his police party. He called the crime team and photographer at the spot. Inspector Rajinder Singh (PW-
27) left the place of occurrence with the accused. The photographs of spot were taken. The crime team lifted chance prints on broken bottle, plastic glass, Coca Cola bottle, broken pieces of glass lying at the spot and report Ex. PQQ to this effect was prepared. The blood stained broken piece of bottle with which the injuries were caused to the deceased and from which chance prints were lifted from the spot was taken into possession vide recover memo Ex. PW. Pieces of glass lying at the spot were lifted with the help of piece of cloth; put in a parcel; sealed with seal 'RC' and taken into possession vide memo Ex. PX. The other pieces of glass on which the CRA-D-878-DB-2002 and CRA-D-48-DB-2003 {6} chance prints were developed were taken into possession vide recover memo Ex. PY. The blood stained newspaper lying below the dead body; a Bisleri bottle having residue water in it; coca cola bottle of 500ml; two plastic glasses; two small cigarette buds; the wrapper of bikaneri bhujia and blood stained earth were taken into possession vide recovery memo Ex. PZ. The inquest proceedings (Ex. PMM) were conducted and the dead body of Sushil Kumar was sent to Ram Manohar Lohia Hospital, Delhi with the application Ex. PNN for its preservation. Doctor gave parcel containing one shirt, one pent, one vest, one underwear, one sweater, one pair of shoes, one pair of socks, which were taken into possession by SI Mahesh Parkash vide recovery memo Ex. PNL.
Post-mortem Examination of Deceased:
On 08.03.2000, SI Mahesh Parkash moved application Ex. PM/3 for the post mortem examination of deceased which was conducted at Lady Harding Hospital, Delhi and following injuries were found on the person of deceased:
"On external Examination: following injuries were found:
1. Two crecentric abrasions of 1 x .3cms in area of 2 cms with surrounding abrasions of 2 x .3cms transversely placed over the right side of neck 10 cms below right ear.
2. Four crecentric abrasions of 1 x 3 cms in size were present respectively in an area of 4 X 2 cms with surrounding abrasions of 2 x .5cms transversely placed over the left side. 10 cms below left ear. CRA-D-878-DB-2002 and CRA-D-48-DB-2003 {7}
3. Multiple abrasion with contusion was present over the left side of neck and left to mid line transversely placed upper and front portion lies just lower to the thyroid cartrilage in area of 10 x 3 cms..
4. Stab wound 3 x 2 cms peritoneal cavity deep, margins clean cut over the left side of abdomen, 6 cms above umbilicus and 3.5 cms left to midline vertically placed.
5. Incised wound of 1.5 x 1 x.5 cms margins were clean cut present over the left side of abdomen 4 cms above umbilicus and 3 cms left to midline vertically placed.
6. Stab wound of 3 x 2 cms and peritoneal cavity deep exposing loop of intestine showing bluish green discolluration of Bowel. Margins were clean cut over the left side of umbilicus 2 cms above and 1 cm left to midline, vertically placed.
7. Stab wound of 2 x 1 cm peritoneal cavity deep.
Margins were clean cut 5 cms above the umbilicus and 2 cms left to midline.
8. Incised wound of 1 x .5 cm skin deep. margins were clean cut present over the right side of abdomen 7 cms above the umbilicus and 1 cms right to midline. vertically placed.
9. Stab wound of 3 x 1.5 cms peritoneal cavity deep.
margins were clean cut present over the right side of abdomen 2.5 cms below the injury no.8 vertically placed.
10. Incised wound of 1.5 x .5 cms muscle deep.
margins were clean cut present over the right side CRA-D-878-DB-2002 and CRA-D-48-DB-2003 {8} of umbilicus 2 cms below the injury no.9, obliquely placed.
11. Stab wound of 1.5 x .5 cms peritoneal cavity deep margins were clean cut were present over the right side of abdomen 1.5 cms above and away from injury no.10. vertically placed.
12. Incised wound of 1.5 x .5 cms muscle deep.
margins clean cut present over the right side of abdomen 5 cms above the umbilicus and 6 cms right to midline. vertically placed.
13. Stab wound of 4.5 x 2 cms peritoneal cavity deep was deposing loop of intestine bluish in colour present over the right side of abdomen 2 cms above the umbilicus and 3 cms right to midline. margins were clean cut and obliquely placed.
14. Stab wound of 3.5 x 2.8 cms peritoneal cavity deep. margins were clean cut present over the right side of abdomen just below and inner to injury no.13 obliquely placed.
15. Incised wound of 2 x 1 cm muscle deep. margin clean cut present over the right side of abdomen just below and outside of injury no.14. vertically placed.
16. Incised injury of 1.5 x .7 cms skin deep margins clean cut. Present over the right side of abdomen 5 cms above the umbilicus and 5 cms right to midline and was vertically placed. On internal examination in head no abnormality was detected.
In neck below thyroid cartilage upper part was congested showing ecchymosis in surrounding tissues CRA-D-878-DB-2002 and CRA-D-48-DB-2003 {9} and muscles. In skull no fracture was seen. In brain: Brain was edematous and superficial blood vessels were congested. In larynx, phrynx and other neck structure, chest wall mediastinum and diathrajm. No abnormality was detected.
In tracheas upper part was congested. In lungs both lungs were pale. In heart no abnormality was detected.
Abdomen and Pelvis:
Multiple incised injuries in abdomen wall and peritoneum around umbilicus was present in an area of 15 x 13 cms and about two liters of blood was present in cavity.
Stomach Stomach contained 700 M. liters of brownish fluid with food material and smell of alcohol was present and stomach wall was congested.
SMALL AND LARGE INTESTINE In small intestine was showing multiple incised injuries with hemorrhage surrounding in tissue."
SI Mahesh Parkash then moved the application Ex. PO seeking the opinion of the doctor as to whether the injuries on the person of the deceased could be caused by broken bottle recovered from the spot and the doctor gave his opinion Ex. PP that the injuries mentioned on the front of the abdomen at serial no.4 to 16 were likely to have been caused by the broken pieces of the bottle shown to him. The finger prints of the deceased Ex. PH/5 to PH/9 were taken.
CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 10 } On 15.03.2000 the appellant was produced before the Court of Judicial Magistrate and an application Ex. PEE was moved for taking his finger prints. He agreed for giving his finger print impression vide statement Ex. PFF and under the order of the Court Ex. PGG, his finger prints and thumb impressions were taken in Court which were attested by the Magistrate.
Report of Forensic Science Laboratory and Finger Print Bureau:
The clothes of the deceased; the articles taken into possession from the spot where dead body of Sushil Kumar was found, were sent to Forensic Science Laboratory, which gave its report Ex. PF as follows:
"Laboratory examinations were carried out to detect the presence of blood on the exhibits. Blood thus detected was subjected to serological tests to determine its species of origin and group. Based upon these examinations the results obtained are given blow:-
1. i. Exhibit-1a (shirt); Exhibit -1b (Banian);
Exhibit-1c (Sweater), Exhibit - 1d
(underwear) and Exhibit -1e (Pants) were
stained with blood.
ii. Traces of blood too small for serological tests were detected on Exhibit-1f (Shoes) and Exhibit-1g(Socks).
CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 11 }
2. Blood was detected in Exhibit-2c (Blood) and on Exhibit-3 (Gauze cloth).
3. Exhibit-4 (Broken glass bottle) was stained with blood stains.
4. i. Exhibit-5a (News Paper) was stained with blood stains.
ii. Blood could not be detected on Exhibit-5b (Cigarette), Exhibit-5c (Bhujia), Exhibit-5e (sample earth) and Exhibit-5f (Plastic bottles etc.).
iii. Blood was detected in Exhibit-5d (Blood Stained Earth).
5. Exhibit-6 (Jacket) was stained with blood stains.
Note: 1. Results of serological analysis of blood are attached herewith.
2. After the examinations the exhibits alongwith their original wrappers have been sealed with the seal of A.D. Serology, FSL (H)."
These articles were sent for serological analysis of blood. Human blood was found on the clothes of the deceased; broken glass bottle; newspaper; blood stained earth and jacket of appellant taken into possession CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 12 } and also on gauze of cloth. The blood group on these articles was found as 'B'.
The chance prints lifted from the spot on the articles lying near the dead body of deceased and the finger prints of appellant were sent to Finger Print Bureau, Haryana and vide report Ex. PH to chance prints were found identical with the finger prints of the appellant. On examination of the finger prints eight identical rich characteristics were found in their nature and relative positions in both the finger prints and the expert opined that these are beyond scope of accidental co-incidence and were identical.
After completion of investigation challan against appellant was presented in Court of Chief Judicial Magistrate, Gurgaon, as the offence under Section 302 IPC exclusively triable by the Court of Sessions was disclosed, the case was committed to the Court of Sessions for trial. Finding prima facie case for offence under Section 364-A, 302 and 201 IPC against the appellant, he was chargesheeted accordingly to which he pleaded not guilty and claimed trial.
Prosecution Evidence:
In supports of its case the prosecution examined 27 witnesses. Complainant V.P.Sharma appeared as PW-12; Rajinder Pal Nadar, who had last seen the appellant with the deceased appeared as PW-14; Dr. Viney Kumar Singh, who had conducted the post-mortem examination, appeared as PW-11; Dr. Sham Gopal Nag, Medical Officer, Ram Manohar Lohiya Hospital, Delhi, where the dead body was sent for preservation, appeared as CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 13 } PW-22 and has described the injuries found on the dead body of deceased; SI Mahesh Parkash of Police Station Chankyapuri, Delhi, who had reached the spot at Budha Garden where the dead body was found and conducted the preliminary investigations, appeared as PW-24 and ASI Hemant Kumar, Police Station City Gurgaon, who remained associated in the investigation, appeared as PW-26; while Inspector Rajinder Singh, who conducted the main investigation, appeared as PW-27. PW-4-Dinesh Jain, PW-5-Billu Ram and PW-6-Umesh Sharma are the owners of the STD PCO from where the appellant made ransom calls to the complainant. PW-7-Harish Chand has stated that the appellant had entered into a deal with him to sell his motorcycle HR-26-G-6325 for `28000/- but the deal did not materialize for want of proper documents.
ASI Naresh was deputed at the residence of complainant to monitor the ransom call if any received. While appearing as PW-20 he has stated as follows:
"On 7.3.2000 I was posted in charge police post sector-14, Gurgaon. On that day at about 9.00 a.m. I was deputed at the residence of Col. V. P. Singh in sector-17, House No.246 to check the call from telephone 6345804 on which CLI has been provided to detect the telephone number of the caller and to inform the same to SP and DSP. I went to the H.No.246 Sector-17, Gurgaon. At about 12.00 noon telephone call was CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 14 } received. The telephone No. of caller was 0149343367.
I gave necessary information to DSP and SP immediately on walky talky. At about 2.00 p.m. another call was received from telephone No.0149343358. The necessary information was given to DSP and SP on walky talky."
PW-13-Constable Sewa Ram was the finger print proficient who had lifted the chance prints from the neck of broken bottle, the empty bottle of coca cola, pieces of glass and plastic tumbler lying near the dead body, which were later sent to Finger Print Bureau, Haryana for comparison with finger print of appellant.
PW-1-Constable Ashok Kumar, PW-2-Constable Naresh Kumar, PW-3-Constable Mahender Singh, PW-8-Constable Surender Kumar, PW-9-Constable Samsudin, PW-10-Constable Bhagwant Singh, PW-16-HC Dharam Pal, PW-19-Constable Puran Lal and PW-21-HC Bahadur Singh are the formal witnesses.
Submissions of learned counsel for appellant and learned State counsel:
Learned counsel for the appellant has argued that the case of the prosecution is based on circumstantial evidence. As per the medical evidence the deceased had died two-three days prior to the date of post- mortem which was conducted on 08.03.2000 at 2.00pm. This means that the deceased had died on 06.03.2000 by noon. The deceased had gone missing on 06.03.2000. The search was started around 4 pm on that day and his bicycle was recovered out side the HUDA Park, Sector 14, Gurgaon. The CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 15 } matter was reported to the police on the next date i.e. 07.03.2000. As per the prosecution case a call for ransom had already been received at about 5.00 pm on 06.03.2000. The prosecution has not been able to connect the appellant with the occurrence. Billu Ram PW-5 from whose PCO call was made at 2.00 pm on 07.03.2000 to the complainant, has not identified the appellant as the person who made call for ransom. PW-6-Umesh has also not identified the appellant as the person who made the ransom call on 07.03.2000 from his STD booth at Tapukara (Rajasthan). Both were declared hostile by the prosecution and cross-examined, but nothing could be extracted in support of prosecution case. Motorcycle No.HR-26-G-6325 has been planted on the appellant despite the fact that he is not the owner of the same. The testimony of PW-7 Harish Chand, Scooter Mechanic that he entered into a deal with the appellant to purchase this motorcycle is not reliable. The prosecution has also tried to implicate the appellant by proving that the broken bottle, plastic glasses and pieces of glasses etc. recovered from the spot were bearing his finger prints. In fact, the above evidence is planted one. Even as per the statement of Rajinder Pal Nadar PW-14, the deceased was sitting on the back seat of the motorcycle of appellant and had waived him while going near the IFFCO chowk. Even if the statement of this witness be believed, it is nowhere proved that the deceased was abducted for ransom. The investigating officer in order to solve the blind murder case of the deceased created the entire story of his arrest in Rajasthan. In fact, the appellant was taken into custody by the police on CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 16 } 06.03.2000 under the suspicion of murder of son of complainant. Report of the forensic science laboratory Exhibit PG states that ethyl alcohol was detected in kidney, spleen, stomach and blood level of the deceased. This shows that the deceased had taken liquor before his death. It is highly improbable that the son of the complainant had gone missing and despite ransom call received at 5.00pm on 06.03.2000, the complainant remained silent till the next day when the matter was reported to the police. Even after the complaint in which the appellant was named and statement of PW-14 Rajinder Pal Nadar in the morning of 07.03.2000 that he had seen the appellant with the deceased, the police did not visit the residence of appellant situated in village Barota, PS Sohna. The circumstantial evidence produced on file by the prosecution which are statement of Rajinder Pal Nadar PW-14, recovery of pieces of glass, broken bottle and plastic glasses from the spot having the finger prints of deceased, are not suffice to reach the conclusion that the appellant had kidnapped the deceased for ransom and murdered him.
Learned State counsel has argued that the complainant after the receipt of ransom call at 5.00 pm which was traced to have been made from the STD booth of Dinesh Jain PW-4, did not remain silent. The complainant was constantly in touch with the police, but was taking precaution by not getting FIR registered, as he wished safe return of his son. The evidences on file indicate the steps being taken by the complainant in the matter from the hour his son went missing to locate the whereabouts of kidnappers and his CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 17 } son. He was provided the caller line identification facility (CLI) on same day i.e. 06.03.2000 under the orders of DGM (Telephones). The application for grant of CLI facility was moved on 06.03.2000 and this facility was provided on the same date due to the intervention of the police. This shows that the complainant was in touch with the police and was trying to locate his son. PW-4 Dinesh Jain had identified the appellant as the person who made the call to the complainant at 5.00pm on 06.03.2000. Billu Ram PW- 5, though declared hostile, had identified the appellant as person who made the telephone call from his STD PCO on 07.03.2000 at about 2.00 pm. This call was made at the landline number of the complainant. Besides this direct evidence, the articles taken into possession by the police from the place where the dead body of the deceased was found i.e. the newspaper, broken glass bottle, pieces of glass, two plastic tumblers, a bottle of mineral water, empty coca cola bottle etc. were having the blood stains of the blood of deceased. This fact is proved from the blood group found on the cloths of the deceased which were taken into possession at the time of his post- mortem examination. All these articles were having blood group 'B'. The finger prints lifted from the spot, from the broken glass bottle and plastic tumbler etc. also tallied with the finger prints of the appellant. On 06.03.2000, the deceased was last seen in the company of the appellant by PW-14 Rajinder Pal Nadar. The appellant has not come up with any explanation to explain the last seen circumstance appearing against him. The un-shattered statement of the complainant Rajinder Pal Nadar, PW-4- CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 18 } Dinesh, PW-5-Billu Ram and other circumstantial evidence in no uncertain terms prove the charges of kidnapping and murder against the appellant. Discussion:
We have carefully considered the submissions of learned counsel for the appellant and learned State counsel and perused the case file with their assistance.
Firstly we take up the point of delay in reporting the matter to the police. As per prosecution case, the deceased has gone to his college on 06.03.2000 on bicycle but did not return. This led to his search by the family at about 4.00 pm. Col. V.P.Singh reached his college but did not find the deceased there and then visited HUDA Park, Sector 14, Gurgaon, as the deceased had been going to that park for studies, where bicycle of deceased was found.
The complainant while appearing as PW-12 has stated that he received a telephonic call from a person claiming the custody of his son and asking him to arrange `1,00,000/- by next day till 12.00 noon. The caller threatened that in the event of information being given to the police, his son would be murdered by cutting him into pieces. He cautioned the complainant that his agents were roaming around his house, as such, he should not contact the police.
While comprehending the point of delay in reporting the matter to police, we have to understand the mental status of the complainant, who was out to save the life of his son after receiving a ransom call. He was in CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 19 } touch with the police, trying to locate his son, but at the same time did not get the FIR recorded so that life of his son may not be in danger. The way the complainant was proceeding in the matter is to be understood in the manner an ordinary and helpless father, in such circumstance would have acted. Despite the threat given by the ransom caller not to report the matter to the police, the complainant dared to meet the Superintendent of police, obtained CLI facility on his telephone, tried to locate his son throughout the night but failed, and ultimately reported the matter to the police on the next day, perhaps with a view to enable the police to swung in action. Complainant while appearing as PW-12 has duly explained the delay in reporting the matter to the police and in view of the facts and circumstances of this case the delay in reporting the matter to the police is insignificant and not fatal to the prosecution case.
After informing his brother and relatives, the complainant rang up Superintendent of Police, Gurgaon and visited his office. He apprised him of the entire facts and requested him not to interfere for the time being as the life of his son was in danger. He made request for providing Caller Line Identification (CLI) facility on his telephone through P&T department so that the call could be traced. He kept on searching his son throughout the night and on the next morning Rajinder Pal Nadar PW-14 met him and informed that he had seen the deceased going towards Delhi on the motorcycle of the appellant on 06.03.2000 at about 12.00 when he was present at IFFCO Chowk.
CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 20 } The motorcycle bearing no.HR-26-G-6325 was recovered from the possession of the appellant. Though the prosecution has not produced the proof of ownership of this motorcycle by the appellant yet the testimony of Harish Chand, scooter mechanic who entered into a deal with the appellant is reliable to prove that the appellant was possessing and using this motorcycle.
The above statement of complainant finds support from the documentary and oral testimony of PW-17-Vallabh Kapil. The application Ex. PCC for providing CLI facility, was moved on 06.03.2000 and CLI facility was activated the same day on the landline phone at the resident of complainant. Vallabh Kapil has stated that he had received the application through police but before receiving the application, the telephonic order from DGM had already been received to entertain the application. In his cross-examination Vallabh Kapil (PW-17) has stated as follows:
"Application Ex.PCC was received by me personally. Police had brought the said application. The application was received by me at about 7.15 p.m. I have not given the date under my endorsement. The telephonic order from DGM had already been received by me before the presentation of the application, asking me to entertain the application. My normal duty hours are from 9.00 a.m. to 5.30p.m. Volunteers since I am the head of switch room. I can be called at CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 21 } any time in case of emergency. The telephonic orders of the DGM was received by me at my residence. It is wrong to suggest that I have not passed any order on 6.3.2000 and later on the said document was fabricated at the behest of the police. The commercial officer who had passed order dated 7.4.2000 is still working in the department. "
The statement of PW-17 who was heading the switch room of the telephone department is reliable and prove that the complainant was in constant touch with the police but was avoiding to get the case registered under the threat of the ransom caller in order to save the life of his son.
To prove that the ransom call at 5.00 pm was made by the appellant, the prosecution has examined PW-4-Dinesh Jain. This call was traced to have been made at the landline number of the complainant from the STD Booth of this witness, who has deposed that the appellant came to his STD Booth on motorcycle at about 5.00pm on 06.03.2000 and made a call for which he had charged `2.50 from him. The statement of this witness is un-shattered in the cross-examination.
Another ransom call was received at about 12.00 noon on 07.03.2000 at the telephone of complainant. The complainant has stated that the caller enquired from him as to whether he had informed the police and whether the money was ready. The complainant sought further two hours' time to arrange the money and requested him for talk with his son, but the CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 22 } caller told him that the son was not available, as such the talk with the son was not possible. That call was traced to have been made from village Tapukara, District Alwar, Rajasthan. Immediately a police party accompanied by the complainant and Rajinder Pal Nadar, proceeded towards Tapukara, Rajasthan. At bus stand Tapukara DSP Laxman Singh Gaur met the police party and they reached Babbal STD Booth, Tapukara from where the call had been made and obtained the computer slip of the call. The police party took position near the Babbal STD booth, where the appellant came, but on witnessing the presence of police, tried to turn his motorcycle which skidded and he fell down and received injuries.
The complainant while appearing as PW-12 has stated that Umesh (PW-6) told the police that (on 07.03.2000) at about 12.00 noon a boy wearing a black jacket came to his STD booth on motorcycle (Hero Handa) and made a call. Umesh while appearing as PW-6 has however, not identified the appellant as the person who made the call from his STD booth on 07.03.2000. He has, however, admitted that the police visited his STD booth on 07.03.2000 and he gave the slip Exhibit PE showing the call made from his STD booth to the telephone no.0124-6345804. In order to prove that the appellant made telephone call to the complainant from the another STD booth of village Tapurkara on 07.03.2000 at about 2.00 pm, the prosecution has examined Billu Ram who initially turned hostile but in cross-examination identified the appellant as the person who made the CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 23 } telephonic call to Gurgaon pertaining to computer slip Ex. PD. This call was made at the telephone number of complainant.
Here the learned counsel for the appellant has argued that this witness had turned hostile and there appears to be a typographical mistake while recording his statement "however, it is correct that the accused person in Court had made a telephonic call on 07.03.2000 at Gurgaon vide computer slip Exhibit PD".
In order to verify the above submission of learned counsel for the appellant we have checked the statement of this witness (PW-5 Billu Ram) in the original file at page 255 which was recorded by the trial Court and have also gone through his vernacular statement recorded in Hindi but find no substance in the argument of learned counsel for the appellant. In Hindi statement, it is specifically recorded "ले कन यह सच है क हाजर अदालत दोषी ने 07.03.2000 को गड़गां ु व टे ल फोन कया था".
The fact that no typographical error occurred in the statement is further proved from the suggestion given to this witness recorded at the end of his statement as follows:
"It is incorrect to suggest that on 07.03.2000 the accused had not made any call from my STD booth"
This shows that at the time of cross-examination, the learned defence counsel was aware that PW-5 Billu Ram had identified the appellant as the person who made call at the telephone number of the complainant on 07.03.2000 at 2.00 pm. Though Billu Ram was declared hostile but his CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 24 } statement identifying the appellant in cross-examination as the person who made call to the complainant on 07.03.2000 at 2.00 pm is reliable and without any malice.
The above evidence produced by the prosecution shows that the appellant was the person who was making the ransom call to the complainant and his identity, as the person who made the call, is duly proved.
The appellant was known to the complainant and also to the deceased. He had visited the house of complainant to meet Sushil once or twice. In order to prove that the appellant had murdered the deceased, the prosecution, besides the evidence discussed above, has placed and proved on file the following circumstances:
(i) As per his disclosure statement Ex. PR the appellant got recovered the dead body of deceased kept behind the bushes, one kilometer inside Budha Park Delhi. It was lying on a newspaper. The Delhi Police also reached the spot. It called the finger print staff, who lifted the chance prints from various articles lying at the spot. The police moved the application Ex. PEE for taking the finger prints of the appellant, who willingly gave his finger prints before PW-18 Vijay Singh Judicial Magistrate, Narnaul. His consent for giving finger prints Ex. PFF was recorded and his finger prints were taken in the Court which were duly attested by the Judicial Magistrate. The chance prints lifted from the spot CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 25 } and the finger prints of appellant were sent to the Finger Prints Bureau Haryana. After comparison the finger print bureau gave opinion as follows:
"OPINION:
(a) The photographed chance prints marked Q6/1 and Q3/1 on the photographs Q6 & Q3 respectively are identical with the prints of Mukesh Kumar s/o Daya ram marked I & II respectively on his sample paper dated 15.3.2000 as detailed below:-
Q6/1 with Right thumb print, Q3/1 with left ring finger print. The description of the matching points and photo enlargements indicating their points in respect of Q6/1 are enclosed as annexures x & y.
Like also photograph of Q3/1 is enclosed.
The above evidence proves that the articles lying near the dead body of the deceased from where the chance finger prints were developed, were having finger prints of the appellant, thereby proving his presence with deceased.
(ii) At village Tapukara black jacket of appellant, which was found having blood stains, was taken into possession vide recovery memo Ex. PU.
As per the result of the serological analysis of blood on the cloths of the deceased taken into possession by police and the jacket of the appellant were found having the human blood group 'B'. The other articles taken into possession from the spot like blood stained earth, newspaper, broken glass CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 26 } bottle etc. were also found having blood group 'B'. The appellant has not been able to explain this circumstance appearing against him as to how his jacket was found having the blood stains of the deceased's blood.
(iii) The dead body of the deceased was located as per the identification memo Ex. PV on 07.03.2000. On 06.03.2000 Rajinder Pal Nadar PW-14 had seen the deceased going on the motorcycle of the appellant. The deceased had wished this witness by waiving his hand. The last seen circumstance appearing against the appellant has not been explained. As per medical opinion, death had taken place 2 to 3 days prior to post-mortem of deceased on 08.03.2000, which indicate that deceased had died after short duration of his being found in the company of appellant.
(iv) The argument by learned counsel for the appellant that as per Rajinder Pal Nadar PW-14 deceased had waived to him do not reflect that he was under the custody of appellant or had been kidnapped, is far from the facts and circumstances proved on record. As stated by the complainant, the appellant was know to the deceased. It is quite possible that at the time when PW-14 Rajinder Pal Nadar has seen the deceased going with the appellant, he (deceased) might not have idea that he had been kidnapped. It is quite possible that the appellant used his skill of alluring the deceased. However, circumstantial evidence i.e. finding of blood stains of the blood group of deceased on the jacket of appellant, his finger prints on the broken bottle with which injuries to deceased were caused and the direct evidence of his making the ransom call to the complainant, leave no iota of doubt in CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 27 } our mind that the prosecution has been able to prove the charge for offence punishable under Section 364 A and 302 IPC against the appellant beyond any shadow of doubt.
In view of our discussion above, we find no substance in the arguments of learned counsel for the appellant and the same are rejected. There is no merit in this appeal and the same is dismissed. The bail bond and surety bond furnished in terms of order dated 08.09.2006 suspending sentence awarded to the appellant are cancelled. He be taken in custody and sent to jail to undergo remaining part of his sentence. CRA-D-48-DB-2003 Learned State counsel has argued that it is a case where a young boy was done to death for ransom. The appellant has committed a heinous crime in a planned manner. This case falls in the category of rarest of rare 'case' calling for capital punishment for the appellant.
We have given a careful thought to the submission of learned State counsel but find no substance to agree with his agreement. Though the offence committed by the appellant is heinous, yet it is not the one which may be put in rarest of rare category calling for award of capital sentence to the appellant. The record shows that appellant was 24 years of age, and had no previous adverse antecedents or was a threat to society. He was a misguided youth who in the lust of money kidnapped and murdered a young boy.
CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 28 } While discussing the concept of rarest of rare cases in the case of Machhi Singh And Others vs State Of Punjab, 1983(3) SCC 470, Hon'ble Supreme Court has observed as follows:
38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case (supra):
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between CRA-D-878-DB-2002 and CRA-D-48-DB-2003 { 29 } the aggravating and the mitigating circumstances before the option is exercised.
39. In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
On appraisal of facts and circumstances of the case and the mitigating circumstances weighing in favour of appellant we answer both the questions, as put in para 39(a) and (b) above, in negative and are of the considered opinion that the offence committed by the appellant do not call for awarding him the death sentence.
This appeal has no merits.
Dismissed.
(RAJIVE BHALLA) (SURINDER GUPTA)
JUDGE JUDGE
15 September, 2014
'raj'
RAJ KUMAR
2014.10.09 14:40
I attest to the accuracy and
integrity of this document
Chandigarh