Punjab-Haryana High Court
Dharam Dass vs State Of Punjab on 30 August, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 795-DB of 2006
Date of Order: 30.8.2011
***
Dharam Dass
.. Appellant
Vs.
State of Punjab
.. Respondent
with
Crl. Appeal No. 1057-DB of 2009
***
Dharam Dass
.. Appellant
Vs.
State of Punjab
.. Respondent
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE ARVIND KUMAR
Present:- Mr. K.S. Sandhu, Advocate and
Mr. S.S. Rana, Advocate
for the appellant.
Ms. Gurveen H. Singh, Addl. A.G. Punjab.
***
ARVIND KUMAR, J.
The above referred cases unfold the story where in the first instance, the appellant committed the offence of kidnapping of a minor girl aged about 7 years, in order to satisfy his sexual desires, but killed her and in the process when he realized that he might have been noticed while doing so by one Parshadi(since deceased), in order to wipe out the evidence of his earlier offence, he committed the murder of Parshadi.
The facts of the case, in nutshell, are that Madan Lal along with his family, consisting of wife; three daughters and one son was residing at village Kanech, near Kangaru factory, where he used to do labour work. On 2 14.3.2001 his wife Savitri Devi got lodged DDR No. 9 dated 14.3.2001 wherein she apprised the police about the missing of her daughter, aged about 7 years since the evening of 13.3.2001. However, during her search they came to know from one Billu Parshad, who was playing with the girl that one clean shaved person took the girl on the pretext of giving toffees and chocolates and later she did not return. Apprehending that his daughter had been kidnapped by unknown person with bad intention, Madan Lal, the father of the girl got his statement (Ex.PW10/A) recorded with SI Shiv Dayal, on the basis of which case FIR No. 31 of 2001, under Sections 363, 366 IPC was registered at PS Sahnewal. The police started searching the girl and that unidentified person, but did not get any success.
Then what happened is that on 19.3.2001 one Sudhir Kumar met the police party headed by SI Kanwal Pal Singh, accompanied with SI Shiv Dayal and other police officials and got recorded his statement (Ex.PW9/A) to the effect that he is supervising the labour work going on in Kangaru Factory near village Kanech; the labour is comprising of eight masons and 17/18 labourers. Sita Ram mason and Parshad @ Parshadi labour were carrying on the task of plastering of the shed behind Unit No.II. At about 4:30 p.m. when he reached the place behind Unit No.II, he noticed that Dharam Dass @ Jokar, working as labour, carrying an axe came near Sita Ram and Parshadi. When Parshadi was in the process of picking up a "tasla" containing cement mortar by bending himself, then Dharam Dass gave an axe blow with force on the neck of Parshadi, as a result of which Parshadi fell down. They raised the noise, upon which Dharam Dass gave another blow on the neck of Parshadi and fled away from the spot with the axe. They noticed Parshadi lying dead in the pool of blood. According to him, a quarrel had taken place between Dharam Dass and Parshadi some days back, on a matter unknown to them. On the basis of said statement, cse FIR No. 32 dated 19.3.2001 was registered under Section 302 IPC at Police Station Sahnewal against Dharam Dass @ Jokar, the present appellant.
The dead body of Parshadi was sent for post-mortem examination; SI Kanwal Pal Singh took into possession the blood stained earth from the spot.
It is the case of the prosecution that on 20.3.2001 SI Kanwal Pal Singh arrested the appellant in the presence of one Maghar Singh 3 Sarpanch and SI Shiv Dayal in relation to case FIR No.32 dated 19.3.2001 relating to murder of Parshadi. During interrogation, the appellant suffered disclosure statement (Ex.PW10/B) under Section 27 of the Evidence Act, wherein he disclosed that on 13.3.2001 he saw the movie, which raises his sexual desires and following that he called a girl child playing in an open area on the pretext of giving her toffee, upon which she comes to him. He then took the girl to a Dhaba situated on the main road and gave her toffees and thereafter took her to his room. He further disclosed that he heard the noise from outside about the abduction of girl of Madan Lal by somebody and then he pressed the neck of the girl and killed her. Thereafter, he pulled off the Salwar of the girl and noticed that she had died, however, he did not have any sex with the girl. Under the fear he put the clothes on the body of the girl and in the meantime Parshad, who is also doing labour work came to him and asked as to what he is doing? He took the excuse of searching for the Biri in the room and then went outside the room. The appellant further admitted that, later he threw the dead body of the girl in the well of sewerage built in the factory after tying the same with stones and bricks. However, under the apprehension that Parshadi had seen him while committing the murder of girl and will disclose the same to all, he committed the murder of Parshadi on 19.3.2001 when he was going the work in the factory by giving blows with axe on his neck. The accused offered to get the dead body of the girl recovered from the well. Further, the appellant-accused disclosed vide his disclosure statement (Ex.PW11/A) about concealing the axe after the offence in the bushes standing near the railway crossing, the place exclusively in his knowledge and offered to get the same recovered.
It is further the case of the prosecution that the accused- appellant, pursuant to his above disclosures, led the police party and got the dead body of girl as well as axe, stained with blood, used in the murder of Parshad, recovered from the pointed place. The axe as well as dead body were taken into police possession. The dead body was sent for the post- mortem examination; site plans of the places of recoveries were also prepared. He was also arrested in case FIR No. 31 in relationg to the abduction, kidnapping and murder of girl. Thereafter, on completion of usual formalities of investigation, final reports in both the cases were filed 4 separately for the trial of the accused.
In case FIR No.31 dated 17.3.2001 the appellant was charged for the offences under Sections 363, 366 and 302 IPC while in relation to murder of Parshadi, in case FIR No.32 dated 19.3.2001 charge under Section 302 IPC was framed, to which he pleaded not guilty and claimed trial.
During the trial of case FIR No.31 dated 17.3.2001 the prosecution examined Sodhi Ram as PW1, who clicked the photographs of the dead body of girl taken out from the well; PW2 Avtar Singh working at Cinema at Sahnewal deposed about displaying of moview "Har Dil Jo Pyar Karega" at his theatre from 9.3.2001 to 15.3.2001; PW3 HC Narinder Singh proved copy of DDR No.9 dated 14.3.2001 recorded at the instance of Savitri Devi; PW4 AMHC Ranjit Singh tendered his affidavit in the evidence; PW5 Dr. Manmohan Singh conducted the post-mortem examination upon the dead body of the girl on 21.3.2001 and in his opinion she died due to asphyxia as a result strangulation and probable time that elapsed between injury and death was instantaneous while between death and post-mortem was about 8 days; he further opined that since semen were detected on the vaginal swabs taken from the dead body, the deceased must have undergone the sexual intercourse before her death; PW6 Maghar Singh Sarpanch deposed about the arrest of the accused; the factum of making disclosure statement by the accused and also about the recoveries of dead body of girl and axe, attested by him as well as other witnesses; PW7 Ram Pal son of Girdhari Lal, Dhaba owner deposed about having seen the deceased girl in the company of the accused on 13.3.2001 and about purchasing of toffees by the accused for the minor girl; he further identified the dead body of girl; PW8 Const. Jang Bahadur and PW9 Const. Balkar Singh tendered their respective affidavits in their evidence; PW10 SI Shiv Dayal was the investigating officer of the case and he remained associated with the investigation of case FIR No.32 dated 19.3.2001 as well; PW11 SI Kanwal Pal Singh also remained associated with the investigation of this case and he also was the investigating officer of case FIR No.32 dated 19.3.2001; PW12 Master Bittu, aged about 8 years deposed about taking of the girl by the accused on the pretext of giving her toffees, but the girl did not return; PW13 HC Ram Saran had prepared the scaled site plan.
5It is apt to mention here that in this case the prosecution could not procure the presence of Madan Lal and Savitri Devi, the father and mother of the girl respectively, who were stated to have left the place and their whereabouts were not traced.
So far as trial of case FIR No.32 dated 19.3.2001 relating to murder of Parshadi is concerned, the prosecution examined Dr. Ashok Raswant as PW1, who conducted the post-mortem examination on the dead body of Parshad; three injuries one each on left and right side of neck and one on parietal region were noticed, which were sufficient to cause death in ordinary course of nature; in his opinion the injuries on the dead body could be caused with axe(Ex.P1); PW2 Const. Ravinder Singh, PW3 HC Mohinder Singh and PW4 HC Ranjit Singh tendered their affidavits in the evidence; PW5 Sodhi Lal proved the positive and negatives of the photographs clicked by him on 19.3.2001 of the dead body of Parshad; PW6 Const.I Major Singh also tendered affidavit in the evidence; PW7 Gurinder Singh is the employer/ contractor of the appellant; PW8 Const-II Ajaib Singh also tendered his affidavit; PW9 Sudhir Kumar is the author of the FIR as well as an eye-witness to the occurrence and this witness full supported the case of the prosecution; PW10 SI Shiv Dayal is the investigating officer of the case and deposed about the investigations carried out by him; PW11 Maghar Singh is the attesting witness to the disclosure statements so suffered by the accused as well as to the recoveries of dead body of girl and axe, effected pursuant to the disclosure statements made by the accused and deposed about the same while entering into the witness-box; PW12 Kanwar Pal SI remained associated with the investigation of this case as well and PW13 Sita Ram is also the eye-witness to the murder of Parshad, by the appellant; he also deposed on the lines of prosecution case.
When examined under Section 313 Cr.P.C. in both the cases, the stand of the appellant was of false implication on account of misguided suspicion. However, no evidence in defence was led by him.
It may be mentioned here that when the trial of case FIR No.31 was going on, for procuring the presence of Savitri and Madan Lal, the trial of case FIR No.32 was concluded and vide judgment dated 25.8.2006 the appellant was held guilty under Section 302 IPC and was sentenced to 6 undergo imprisonment for life with a fine of Rs.5000/-, in default whereof he was required to undergo further rigorous imprisonment for six months. Dis-satisfied with the same, the appellant preferred Crl. Appeal No. 795-DB of 2006.
After the conclusion of trial in case FIR No.31, the appellant was also held guilty under Sections 302, 376(2)(f), 363 and 366 IPC vide judgment dated 9.10.2009 and sentenced to undergo imprisonment for life, rigorous imprisonment for ten years and five years each under the latter heads. Besides, the appellant was directed to pay a fine of Rs.5000/-, 3000/-, 1000/- and 1000/- respectively under the aforesaid heads and in case of default under any head, he was required to undergo rigorous imprisonment for six months each under the first two heads and rigorous imprisonment for three months each under third and fourth head. All the sentences were ordered to run concurrently. Feeling aggrieved, the appellant has preferred Crl. Appeal No. 1057-DB of 2009.
Being off-shoot to each other, we propose to dispose of both the appeals by this common order.
We have heard learned counsel for the parties and have gone through the case file very carefully.
The initialization of offence was the time when the appellant took away the minor girl on the allurement of giving her the toffees. The libido engulfed in the accused and in order to satiate the same, he took her to his room and under the fear of being caught, he strangulated the deceased to death. In the opinion PW5 Dr. Manmohan Singh, who conducted the post-mortem on the dead body of the girl, the deceased must had undergone the sexual intercourse before her death, since semen was detected on the vaginal swabs, by the chemical examiner. Thus, he satisfied his sexual lust and later threw the dead body of the girl in the sewerage. PW7 Rampal, the Dhaba owner as well as PW12 Master Bittu, the child witness, whose statement was recorded by the learned trial Court after assessing his rationality to do so and after administering him oath, in clear words deposed that the appellant took the minor girl along with him on the pretext of giving toffees to her and purchased the toffees from the shop of PW7 Rampal and handed over to girl and then took her to his room. Later PW7 Rampal identified the dead body of the girl, after its recovery. The statements of 7 both these witnesses remained unshattered despite lengthy cross- examination at the hands of learned defence counsel and nothing fruitful came out therefrom, from which the appellant can derive any benefit. No ill- will has been suggested towards this witness as to why they deposed against the appellant. Thus, no doubt remains as to the veracity of the testimonies of these independent witnesses, who are in no way related to the deceased. On 13.3.2001 in the evening she was lastly seen in the company of the accused. A DDR was lodged about the missing of the girl by her mother on 14.3.2001, after having failed to search her out. The death was found due to strangulation and the time elapsed between death and post-mortem was about 8 days. The post-mortem was done on 21.3.2001. The sequence of events are clearly suggestive of the fact that the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small clearly rules out the possibility of any person other than the accused being the author of the crime. Not only this, one of the foremost circumstance against the appellant was the discovery of dead body, which he got recovered from the pointed place, which was in his exclusive knowledge, pursuant to the disclosure statement made by him under Section 27 of the Evidence Act. The disclosure statement as well as consequent recovery was not only attested by the official witnesses namely PW10 SI Shiv Dayal and PW11 SI Kanwal Pal Singh, but also by an independent person namely Maghar Singh (PW11). The statements of all these witnesses are consistent and corroborated to each other on material particulars. Thus, the circumstance of suffering of disclosure statement and consequent recovery of dead body, in no way, can be doubted. As said above, the medical evidence also points a finger of guilt upon the accused and supports the case of the prosecution. No doubt Madan Lal and Savitri, the father and mother of the girl were not examined by the prosecution as it has come on record that they reported to have left the place and their whereabouts could not be traced. Despite that, in the light of overwhelming evidence on record, as referred to above, duly proves the involvement of the appellant in the kidnapping, rape and then murder of the minor girl and the non-examination of the aforesaid witnesses, does not cause any dent in the prosecution case. Therefore, we find no justification to interfere with the findings of guilt as well as the sentence, which is proportionate to the 8 gravity of the offence committed by the appellant.
Coming to the case FIR No. 32, there is testimony of PW9 Sudhir Kumar, the author of the FIR as well as an eye-witness to the occurrence. He thoroughly supported the case of the prosecution and his testimony finds corroboration from the testimony of PW13 Sita Ram, another eye-witness. Both of them, in clear words, have deposed the manner in which the appellant committed the murder of Parshad @ Parshadi within their sight. Both of them are also independent witnesses and there is no reason to discard their testimonies. The ocular version given by these witnesses also corroborated the medical evidence on record. The injuries on the dead body of Parshad was opined to have been caused with the said recovered axe.Furthermore, in this case as well the appellant led the police party to the pointed place and get the axe, used in the commission of offence, stained with blood of human origin, recovered. The testimonies of PW 10 SI Shiv Dayal, PW11 Maghar Singh Sarpanch and PW12 SI Kanwal, duly proves the suffering of disclosure statement made by the appellant and consequent recovery. Thus, the prosecution has proved beyond reasonable doubt that it was the appellant who committed the murder of Parshadi in order to wipe out the evidence of his earlier committed offence, as referred to above.
Faced with the situation, learned counsel for the appellant has not touched the merits of the case and has confined his argument to the extent that in both the cases the appellant has substantively been awarded imprisonment for life and there is no order of their running concurrent to each other and in absence thereof, the sentences awarded to the appellant presumably run one after the other.
To this extent, we find force and are concurred with the submission of learned counsel. Section 427 Cr.P.C. deals with two different situations. As per sub-Section (1) thereof when a person already undergoing sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or to imprisonment for life, then subsequent sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. So far as sub-section (2) of Section 427 of the Code is concerned, the situation is different. It 9 provides that when a person already undergoing a sentence of imprisonment for life is subsequently convicted to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. A person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might. In other words, sentence of life imprisonment imposed on the same person in two different conviction would converge into one and thereafter it would flow through one stream alone. Therefore, there can be no question of subsequent imprisonment for a term or for life running consecutively which is the general rule laid down in Section 427(1) Cr.P.C.
Adverting to the present case, needless to say here that there is no specific order of concurrent running of the sentences in any of the case. Since the same are off-shoot to each other and for the reasons aforesaid, in our opinion the sentences of life imprisonment awarded to the appellant in case FIR No.31 dated 17.3.2001 and FIR No. 32 dated 19.3.2001 have to run concurrently as provided in Section 427(2) Cr.P.C.
Therefore, for the reasons above, the conviction and sentence of the appellant is maintained in both the cases and the appeals are accordingly dismissed. However, it is directed that the sentences awarded to the appellant in both the cases shall run concurrently.
A copy of this order be placed in the connected appeal.
(SATISH KUMAR MITTAL) (ARVIND KUMAR)
JUDGE JUDGE
August 30,2011
Jiten