Punjab-Haryana High Court
Inder Saini vs State Of Haryana on 28 October, 2013
Bench: Hemant Gupta, Fateh Deep Singh
Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Murder Reference No. 04 of 2013
Date of decision: October 28, 2013
State of Haryana
....Prosecutor
Versus
Inder Saini
....Respondent
Criminal Appeal No. D-599-DB of 2013
Date of decision: October 28, 2013
Inder Saini
....Appellant
Versus
State of Haryana
....Respondent
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice Fateh Deep Singh
1. Whether the Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
Present: Mr. Pardeep Singh Poonia, Additional Advocate General,
Haryana for Prosecutor in MR No. 4 of 2013 and
for respondent in CRA-D-599-DB-2013
Mr. Baldev Singh, Senior Advocate with
Mr. Deepinder Singh, Advocate for respondent in
MR No. 4 of 2013 and for appellant in CRA-D-599-DB-2013
Tiwana Dalbir Singh
2014.02.20 17:23
I attest to the accuracy and
integrity of this document.
High Court, Chandigarh
Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 2
Fateh Deep Singh, J.
Having regard to the fact that the Murder Reference made under the provisions of section 366(1) of the Code of Criminal Procedure, 1973 read with provisions of Rules 34 and 35 of High Court Rules and Orders contained in Chapter 24 (Part-B) Volume-III for confirmation of the death sentence awarded to the accused convict Inder Saini and his criminal appeal against the same very judgment order of sentence dated 30.5.2013/7.6.2013 being cojoint matters are being simultaneously disposed of by this judgment whereby the trial court of learned Additional Sessions Judge, Faridabad has convicted the appellant under sections 376, 302 IPC and sentenced him as follows:-
"U/s 376 IPC To undergo rigorous imprisonment for life and to pay a fine of Rs 25,000/-. In default of payment of fine to further undergo rigorous imprisonment for six months.
U/s 302 IPC Death Sentence."
The essential facts that needs to be recapitulated as is reflected in statement Ex. PH made on 16.1.2012 by Ram Sahai PW8 who happens to be the unfortunate father of victim of this rape and murder, a girl aged around 8 years (date of birth 7.9.2004) are as follows:-
"The complainant claims that he runs a Food Stall in Sector 16 Faridabad and on the date of occurrence i.e. on 15.1.2012, he left for his work with his wife Budhni Devi PW9 leaving behind the victim and another minor daughter Komal aged 4 years. When the complainant and his wife returned back around Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 3 5 PM the same very day to his tenanted residential premises situated in Gaddi Mohalla saw that his daughter was giving kachauries to the accused who happens to be the landlord of the complainant who at that very juncture was sitting outside his room. When the girl did not return back for a long time, the complainant and his wife went to verify and did not come across the accused and rather in his room saw blood spots on the bed sheet, quilt, pillow cover and the bed at which the couple rushed to the roof of the house and saw the accused throwing a plastic bag at the backside over the wall of the house and when the complainant called him the accused ran away from the place. The complainant and others rushed to the place where the bag had fallen and on opening the bag saw the dead body of their daughter Shivani profusely bleeding from the private parts. Thus, the complainant concluded that his daughter has been raped and murdered by the accused and thereafter thrown away his dead body to wash off his sins."
Inspector Vijay Kumar PW17 on receipt of telephonic call about this incident rushed to the place of occurrence and after recording this statement had sent the ruqa through C. Sunil Kumar PW7 leading to the registration of the FIR Ex. PN by ASI Ram Niwas PW10 and special reports were dispatched through PW13 Constable Piara Lal. That is how the investigations into this ugly incident got initiated culminating into the trial and ultimate conviction of the appellant. The Investigating Officer after Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 4 visiting place of incident, prepared inquest report Ex. PA/2 and got photographs Ex. P1 to P19 of the place clicked through Naveen Sharma, PW2 along with DVD Ex. P23 which were taken into police possession through memo Ex. PG and prepared crime report Ex. PE. From the room, he took into possession the articles containing blood stains essentials for the investigations and prepared them into individual parcels and took the same into police possession through memo Ex. PC. Rough site plan of this place Ex. PO was prepared. On police request a Medical Board was constituted for post mortem examination of the dead body headed by Dr. Sheela Bhagat PW1 who gave post mortem report Ex. PA/1 as to the injuries discovered and the cause of death being asphyxia due to strangulation which was ante mortem in nature and sufficient to cause death in ordinary course of nature and opined that rape had been committed and drew samples by way of vaginal swabs in the sealed cover which was handed over along with belongings of the dead body to SI Kanwar Chand PW6 which were taken into police possession by way of memo Ex. PF.
Meanwhile at the place of occurrence, the Investigating Officer summoned Vinod Kumar PW5 Expert from Forensic Science Laboratory who examined scene of crime and gave his report Ex. PE. Through PW12 Sarwan Kumar Draftsman scaled site plan of the place of occurrence Ex. PM was prepared. Dog Squad headed by PW14 HC Jagbir Singh had indicated the trail towards the room of the accused. During the course of time investigations were handed over to SI Ram Niwas PW10 on 23.9.2012 who apprehended the accused regarding which information Ex. PO was sent. Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh
Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 5 Application for his medico legal examination Ex. PM was moved and was conducted by Dr. Ahibhushan Sonbhadra PW20 who through his opinion Ex. PL on police request Ex. PM gave medical fitness of the accused to be capable of performing sexual intercourse. Accused while in police custody when interrogated suffered disclosure statement Ex. PI and thereafter led the police party to the scene of crime and got the place demarcated by way of memo Ex. PL. The accused got recovered one blue coloured Jean pant Ex. P22 and one wire Ex. P21 which were taken into possession through memo Ex. PI/B after preparing into parcels. During the course of investigations through Sangeeta Sharma, Principal, Vishal Public School, PW11 Sh. Vinod Kumar Jain PW15 copies of admission register Ex. PK, certificate issued by the school as to the date of birth of the deceased Ex. PK/1 and report card Ex. PK/2 were taken into possession. Statements of the witnesses were recorded and on receipt of FSL report Ex. PJ/1 and on completion of investigation, challan against the accused was presented.
After usual formalities of commitment, the accused was charged who pleaded innocence and opted for trial. The prosecution examined 20 witnesses (as detailed above) to establish its case. In defence DW1 Raj Kumar testified in favour of accused Bijender followed by the impugned findings. The same is subject matter of decision in these two matters.
After hearing at length Sh. Baldev Singh, Senior Advocate assisted by Sh. Deepinder Singh, Advocate for the convict-appellant as well Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 6 as Shri Pardeep Singh Poonia, learned Addl. AG, Haryana at length and with their invaluable assistance had the opportunity to scan the record of the case.
It is neither disputed much less questionable as to the age of the victim Shivani which even otherwise is well elaborated by the school record proved by Ms. Sangeeta Sharma PW11 and Vinod Kumar Jain PW15 by way of Exs. PK, PK/1, PK/2 and PK/3. Therefore, at the time of occurrence she was around 8 years of age. Homicidal death has never been challenged which is well elucidated in the testimony of Dr. Sheela Bhagat PW1 who was one of the Members of the Medical Board constituted to conduct the autopsy on this dead body. This witness through her affidavit Ex. PA has elaborated and has proved on the record the post mortem examination Ex. PA/1 and proved the inquest Ex. PA/2. As per her unrebutted testimony there was a ligature mark on the neck and has opined that the cause of death was asphyxia due to strangulation which was ante mortem in nature and sufficient to cause death in ordinary course of nature. This Expert witness has further elaborated that on examination of the private parts of the victim there was absence of hymen, tear in the perineum and blood was present. Though a suggestion has been put to this witness that the deceased died due to some other reason but during the course of arguments, with all fairness the counsel for the appellant had conceded the falsity of this stand of the defence. Though not argued even otherwise PW20 Dr. Ahibhushan Sonbhadra through his evidence by way of Ex. PW20/A proved the MLR Ex. PL and request Ex. PM that the accused was fit to perform sexual intercourse. The exhibits drawn from the dead body and other articles taken Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 7 during the course of investigations as per Forensic Science Laboratory Report Ex. PJ/1 shows that the Jean of the accused which was recovered on the basis of his disclosure statement from his exclusive and conscious possession being legal piece of evidence was stained with the human blood. The Examiner further by his report Ex. PJ had found semen on the vaginal swabs, hair from the scalp of the victim and skin from the nail clipping. As per Ex. PJ and other articles consisting of quilt, bed sheet, mattress, articles of the dead body, shirt, nikker, mala, the bag in which the dead body was thrown and hair were found to contain human blood. Though it was expected in this modern age for the Investigators to have ensured micro analysis to pin point the perpetrator of the crime by going on necessary DNA profiling but sad enough inspite of provisions having been enshrined in the Code of Criminal Procedure by way of section 164-A, section 53, there has been utter reluctance of the concerned quarter to indulge in it. Thus, from all this flows that a minor girl was raped and murdered and which is lent credence by Vinod Kumar Singh PW5 from Forensic Science Laboratory and corroborated through photographs Exs. P1 to P19 and video Ex. P23 by PW2 Naveen Sharma which have been established to have remained intact during the course of investigations by ASI Himmat Singh PW3 and HC Paras Ram PW4 through affidavit Ex. PD, PW6 SI Kanwar Chand who took the dead body for examination, PW7 Constable Sunil Kumar as well as PW18 HC Shiv Kumar who has established it so through his affidavit Ex. P18/A. Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 8 The most material witness as has been pointed out on behalf of the State is unfortunate father of the deceased PW8 Ram Sahai who is proved to be the tenant of the accused and who has testified that on the day of the occurrence he and his wife had gone to sell their articles on the Rehri and when they returned back around 3.30/5.00 PM had elaborated that on their return saw that the accused landlord was handing over money to victim Shivani asking her to bring kachauries from the market while the husband and wife were busy, then to their utter dismay discovered that their girl had not returned back and started searching for her and when they went to the room of the accused saw blood spots on various articles lying in the room and when they went to the roof saw that the accused was throwing certain articles wrapped in a plastic katta/bag but on seeing the complainant, ran away. The contentions of Shri Poonia, learned Addl. AG that the element of last seen of the accused and the deceased and the running away of the accused significantly established guilty mind though has sought to be controverted by Sh. Baldev Singh, counsel for the appellant-convict. However, such a conduct is certainly presumptive of the guilty state of mind in terms of sections 8 and 103 of the Evidence Act. More so it is well enshrined principle that things which are within the special knowledge of the accused and fails to explain for those circumstances, an adverse presumption needs to be drawn against him. As has been pointed out on behalf of the State there is nothing put up in the defence by the accused either during the cross-examination of the witnesses or in his statement under section 313 Cr.P.C. or in the defence evidence which could in any manner be sufficient Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 9 enough to absolve the accused of his guilt. It is well elaborated by PW10 that upon the arrest of the accused while he was in police custody when questioned had suffered disclosure statement Ex. PI and not only demarcated the place of occurrence by way of Ex. PL and also got recovered from his personal possession jean and a wire which were taken into police possession through memo Ex. P1/B. The jean as per the Forensic Science Laboratory has been found to be stained with human blood and in view of ligature mark on the neck and the Expert opinion of PW1 that the death is on account of strangulation connects this piece of wire Ex. P21 to the commission of this offence. Though it is sought to be agitated that the complainant Ram Sahai is a witness to this disclosure statement, is an interested witness but at the same time as has come in his cross-examination that he was summoned by the police and when he happened to be in the police station, the accused was interrogated shows the natural conduct of the witness and more so in the absence of any such explanation by the defence has an adverse impact on it. It is not put to doubt that the complainant is a tenant of the accused and the recovery of the incriminating articles which were blood stained consisting of quilt, bed sheet cover, one piece glass, one piece beedi in the presence of complainant and which has been established to be blood stained are matters which have a lasting bearing on this case. This evidence of the complainant has been corroborated by his wife Smt. Budhni PW9 and nothing adverse could be pointed out by appellant's counsel to put to doubt her credentials and rather further strengthens the prosecution version by stating that when she was inquiring about her daughter, her friend Naini Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 10 alias Sita who though has been examined as PW19 and has been declared hostile but in her cross-examination by the State accepts that the police had recorded her statement lends credence to the prosecution version when even PW16 SI Naveen Kumar has stated that he had recorded and photographed the statement of this witness and which is proved by way of Ex. PN and it was at his behest Dog Squad had examined the place and so the team from the Forensic Science Laboratory report of which has been proved as Ex. PF and taking into possession samples of vaginal swabs.
Even otherwise it was right in the presence of parents of the girl when they went to the roof of the house of the accused, saw him throwing bag on the rear side of the house and which subsequently was discovered to contain dead body of the victim are matters which give overwhelming weight to the prosecution story. The investigations through PW10 SI Ram Niwas and PW17 Inspector Vijay Kumar has brought about the collection of each of the vital pieces of the evidence so as to form unbroken chain of events leading to the one and only conclusion that it was none else but the accused who is perpetrator of this crime. Though the evidence of the Dog Squad brought about by HC Jagbir Singh PW14 and photographing of PW19 Naini alias Sita brought about by PW16 SI Naveen Kumar are not such a strong evidence but certainly do corroborate to some extent this ugly happening when Naini accepts that her statement had been recorded are matters of great significant.
Thus what has been brought about as legitimate piece of evidence oral as well as documentary clearly point out the role of accused- Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh
Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 11 appellant in the commission of this rape and murder of a minor girl, a very heinous offence by all means. The Courts cannot lost sight of the menacing proportions which such crimes had attained in the modern set up in the society when every one in the society is feeling pinch of such crime against the fair sex. The Court in its endeavour to do justice must make conscience approach not to be swayed by public feelings and fervor though societal pulse is certainly an indicator for the Courts to act a tool of social justice but Courts cannot exclusively go by such a compass. Sh. Poonia, learned Addl. AG has made a strong prayer for maintaining the sentence of death so imposed by the trial court but having regard to the arguments of Shri Baldev Singh and going through the well laid ratios which by now have become guiding star in the award of death sentence and categorization of rarest of rare cases as has been laid in Bachan Singh versus State of Punjab, AIR 1980 Supreme Court 898; Machhi Singh versus State of Punjab, AIR 1983 Supreme Court 957 and the ratios cited on behalf of the appellant in Haresh Mohandas Rajput versus State of Maharashtra, 2011(4) R.C.R. (Criminal) 257; Sandesh alias Sainath Kailash Abhang versus State of Maharashtra, 2013(1) R.C.R. (Criminal) 678 and Gudda @ Swarikendra versus State of Madhya Pradesh, 2013 STPL (Web) 803 SC. Though we do feel the heinousness of this crime and its impact on society but with a heavy heart we find that though the judgment of the conviction is an appreciable interpretation of the evidence and the law but the instant case certainly falls short of rarest of the rare cases. Thus, in the ends of justice we hold and modify the death sentence so awarded by the Tiwana Dalbir Singh 2014.02.20 17:23 I attest to the accuracy and integrity of this document. High Court, Chandigarh Murder Ref. No. 04 of 2013 & CRA-D-599-DB of 2013 12 trial court and commute to one of life imprisonment. However, to sub-serve the ends of justice we feel it expedient to order the same with fine amounting to Rs two lacs and in default of payment of fine, the appellant- convict shall further undergo rigorous imprisonment for two years and thereby modify the sentence accordingly under section 302 IPC. Exercising powers under section 357 Cr.P.C. we feel it essential to further order that in case of recovery of this fine, the amount shall be paid to the parents of the unfortunate child in equal shares. Though we are aware that such minicual compensation would be too small for eradicating miseries of the unfortunate parents but on our part we are trying to assuage the feelings of wrong done to them.
Thus the Murder Reference is answered accordingly and the appeal of the convict is partly accepted thereby modifying the sentence so awarded as detailed above.
Necessary intimation regarding passing of this order be sent to the quarters concerned.
(Hemant Gupta)
Judge
(Fateh Deep Singh)
October 28, 2013 Judge
'tiwana'
Tiwana Dalbir Singh
2014.02.20 17:23
I attest to the accuracy and
integrity of this document.
High Court, Chandigarh