Punjab-Haryana High Court
Madan And Another vs State Of Haryana on 3 April, 2013
Author: Rekha Mittal
Bench: Rajive Bhalla, Rekha Mittal
CRA No. 537 DB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
-.-
CRA No. 537 DB of 2007 (O&M)
Date of decision: April 3, 2013
Madan and another ........ Appellants
Versus
State of Haryana .......Respondent
Coram: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mrs. Justice Rekha Mittal
-.-
Present: Mr. Akshay Jain, Advocate and
Mr. Anil Ghanghas, Advocate
for the appellants
Mr. Dhruv Dayal, DAG, Haryana
for the respondent State
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The appellants, namely, Madan and Parmod lay challenge to the judgment of conviction and order of sentence dated 27.02.2007 and 28.02.2007, respectively, passed by the Additional Sessions Judge, Hisar (hereinafter referred to as 'the trial Court'), whereby they have been convicted and sentenced for commission of offence punishable under Section 302 and 411 of Indian Penal Code (hereinafter referred to as 'IPC') in sessions case No. 53 of 2004 relating to FIR No. 99 dated 24.03.2003, under sections 302, 381, 120-B, 212, 216 IPC, registered at Police Station Civil Line, Hisar, as detailed herein below:-
CRA No. 537 DB of 2007 2
Name Offence Period of sentence In default of
under awarded payment of fine
Section
Madan 302 IPC To undergo rigorous To undergo simple
and imprisonment for life imprisonment for
Parmod and also to pay a sum five months each
of Rs.5,000/- as fine
each.
411 IPC To undergo rigorous To undergo simple
imprisonment for imprisonment for
three years and also to three months each.
pay a sum of
Rs.3,000/- as fine
each.
The case, in hand, pertains to murder of one Sheela Devi wife of late Shri Dharam Singh, resident of House No. 1166, Urban Estate-II, Hisar. Ajaybir Singh, Complainant, son of the deceased telephonically informed the police about the occurrence. Intimation was sent to the Forensic Science Laboratory, Madhuban, Hisar. Statement of complainant, Ajaybir Singh was recorded, alleging therein that Rajender son of Harpat Singh, employed as salesman at the petrol pump, came to the complainant's house in the early morning hours of 24.03.2003 and noticed Sheela Devi (his mother) lying on the floor inside her room and informed the complainant, who is staying in the same house on the first floor. The complainant and Rajender found Sheela Devi lying dead. Her feet were tied with a cloth and a chunni was girdled around her neck. The articles of the rooms were lying scattered. The complainant found that two days sale receipts of the petrol pump and some jewellary of the victim were found missing. Laxman, a servant working in the house of the victim, was not found available in the house. The complainant expressed his suspicion that either Laxman himself or with the help of his companions have killed his mother, robbed cash, jewellery and fled.
CRA No. 537 DB of 2007 3
A team from the Forensic Science Laboratory, Madhuban, Hisar reached the spot, inspected the scene of crime, took photographs of the dead body and the chance prints available on the spot were lifted. A site plan of the place of occurrence was prepared. Inquest proceedings were conducted on the dead body and post mortem examination was got done. Statements of the witnesses were recorded.
The police obtained warrants of arrest of accused Madan and Parmod. The police party headed by Sub Inspector Balwan Singh, accompanied by ASI Anoop Singh, other police officials and one Munshi Ram, an employee of Ajay Oil Company, owned by the deceased left for Jalpaigudi (West Bengal) on 25.03.2003. They reached Police Station Nagar Kata, Jalpaigudi (West Bengal) on 28.03.2003. On 29.03.2003, pursuant to secret information, accused Madan and Parmod were arrested. On search of accused Madan, packets of currency of Rs.21,000/- and Rs.10,000/- were recovered from right and left side pockets of his jacket. The search of accused Parmod led to recovery of packets of currency of Rs.15, 000/- and Rs.11,000/- from right and left side pockets of his pants. One gold bangle (kara) was also recovered from the pocket of the shirt of accused Parmod. The currency notes and gold kara were taken into police possession after converting it into parcels, vide recovery memo. Ex.PX and PY, respectively. Site plan of the place of recovery was prepared. The transit remand was obtained from the Illaqua Magistrate at Jalpaigudi (West Bengal) on 30.03.2003 and the accused were brought to Hisar (Haryana) on 02.04.2003. During interrogation, both the accused suffered disclosure statements. Later on, accused Jeet Bahadur was arrested on 22.04.2003 for committing offence under Section 216 IPC on the charge of harbouring accused Madan CRA No. 537 DB of 2007 4 Bahadur and Parmod Bahadur. Accused Laxman Bahadur and Suresh Bahadur could not be arrested, despite visits to their native place in Nepal and ultimately they were declared as proclaimed offenders.
The case was committed to the Court of Sessions by the concerned Judicial Magistrate Ist Class, Hisar, as offence under Section 302 IPC is exclusively triable by the said Court.
Accused Madan and Parmod were jointly charged for offence punishable under Section 302 read with Section 120-B, Section 195 IPC and Section 412 IPC. A charge under Section 212 IPC for harbouring accused Madan, Parmod, Laxman Bahadur and Suresh Bahadur was framed against accused Jeet Bahadur. The accused did not plead guilty and claimed trial.
To prove its case, the prosecution examined as many as twenty witnesses, namely,Dr. Sahib Singh (PW1), Raj Kumar ASI, Finger Prints Expert (PW2), Rajender Singh, an employee at Ajay Oil Company of the deceased (PW3), Miya Singh HC (PW4), Ram Singh, a Salesman at Ajay Oil Company (PW5), Subhash Chander, Draftsman (PW6), Shamsher Singh HC (PW7), Shiv Kumar HC (PW8), Hoshiar Singh, ASI (PW9), Bani Singh, ASI (PW10), Balbir Singh,SI (PW11), Ramesh Chand, ASI (PW12),Chhaju Ram, HC (PW13), Jai Narain, Inspector Finger Prints Burea Madhuban (PW14), Ajaybir Singh, complainant (PW15), Dr. R J Bishnoi (PW16), Ramesh Chander,Constable (PW17), Munshi Ram, an employee at Ajay Oil Company (PW18), Sube Singh, Inspector/SHO (PW19) and Balwan Singh, Sub Inspector (PW20).
On the evidence of the prosecution being closed, statements of the accused were recorded in terms of Section 313 Cr.P.C, through which, they denied all the incriminating circumstances appearing in evidence CRA No. 537 DB of 2007 5 against them and pleaded their innocence and false implication. However, they did not examine any witness in defence.
Counsel for the appellants argued that the case of the prosecution is not based upon an eye witnesses account as no one has seen the crime. The prosecution case hinges upon circumstantial evidence but has utterly failed to prove those circumstances which can lead to a hypothesis that the crime was committed by non-else than the appellants or the accused declared as proclaimed offenders. It is argued that the investigating agency tried to manufacture evidence and to plant recoveries in its zeal to solve a blind murder, more particularly, in the circumstances that the deceased is the widow of one Dharam Singh, who retired as Inspector General of Police, from Haryana. It is further argued that the appellants had no knowledge about the business or family affairs of Sheela Devi, therefore, they possibly could not know that the lady was owner of petrol filling station or she had been bringing sale receipts of the said filing station to her residence. It has been argued with vehemence that both the appellants were illegally detained by the police on 24.03.2003 and the entire proceedings with regard to visit of the police party headed by SI Balwan Singh to Jalpaigudi (West Bengal), arrest of the accused in the area of Police Station Nagar Kata, Jalpaigudi, recovery of incriminating articles, i.e., currency notes (sale receipts), belonging to Ajay Oil Company and a gold kara of the deceased have been manufactured to indict the accused in the crime.
The last submission made by counsel is that the learned trial Court has failed to correctly appreciate that keeping in view the various principles laid down in a catena of judgments rendered by the Hon'ble CRA No. 537 DB of 2007 6 Supreme Court and the High Courts, the present case does not fit in those principles or satisfy those requirements when tested on the touchstone of the established principles of law.
Counsel for the State, on the other hand, urges that no fault can be found with the judgment passed by the learned trial Court which is based upon a correct appraisal of evidence in right perspective and the prosecution has proved its case beyond a shadow of reasonable doubt. It is further argued that both the appellants along with co-accused, declared as proclaimed offenders, joined hands to commit murder of Sheela Devi with an intention to commit robbery.
We have heard counsel for the parties, perused the evidence and judgment recorded by the learned trial Court.
Indisputably, the present case is not based upon an eye witness account. However, an offence can be proved by circumstantial evidence. There is no dispute that circumstantial evidence consists of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can be legally presumed. We are conscious that where a case rests squarely on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
In the present case, the prosecution primarily rests on two circumstances;
(i) matching of chance prints with the sample prints of the accused; and CRA No. 537 DB of 2007 7
(ii) recovery of cash and gold kara belonging to the deceased from the possession of the accused.
To prove the first circumstance, the prosecution has examined ASI Raj Kumar, Finger Prints Expert, Forensic Science Laboratory, Madhuban, (PW2), who lifted chance finger prints available on a trunk (box) lying in the store room, adjoining the bed room of deceased Sheela Devi, report Ex. PA prepared by the aforesaid witness, recovery memo. Ex PC, vide which the negatives of these chance prints were handed over by ASI Raj Kumar to the Investigating Officer SI Sube Singh (PW19) and Jai Narain, Inspector Finger Prints Bureau, Madhuban (PW14).
Before we proceed further, it would be appropriate to dwell briefly upon the testimony of Jai Narain, Inspector (PW14), who compared chance prints with finger prints of appellants Parmod and Madan on search slips. Jai Narain has deposed that chance prints were taken from the spot and processed by ASI Raj Kumar, finger prints expert. The chance prints were photographed from negatives supplied by ASI Raj Kumar. He has proved photographers, Ex. PN/1 to Ex. PN/6, negatives, Ex. PN/7 to Ex. PN/12 and positives Ex. PN/13 to Ex. PN/15. He has stated that he compared the chance prints with finger prints Ex. PN/16 and Ex. PN/17 of Parmod and Madan, respectively, available on search slips. The chance prints Mark-A were identical with finger prints of Parmod and chance prints Mark-B were identical with finger prints of Madan. He proved X-2 and Y-2 as description of matching points. He also proved photo enlargement describing the points of similarity. He further proved his report, Ex. PO, Ex. PO/1 to Ex. PO/4. Search slips containing finger prints of accused Parmod, Ex. PO/5 and Ex. PO/6 and those of accused Madan, Ex. PO/7 and CRA No. 537 DB of 2007 8 Ex. PO/8 and of Jeet Bahadur Ex. PO/9 and Ex. PO/10. He also proved his report Ex. PQ, in this regard.
Jai Narain was cross examined at length by the defence counsel. Nothing material or tangible could be elicited during cross examine to assail his expertise in conducting a study on the basis of comparison of chance prints with the sample prints or the correctness of the report prepared by him. The witness has categorically stated, during cross examination, that as he did not find any point of dissimilarity between the chance prints and the sample prints and, therefore, did not mention any such dissimilarity in his report. The report prepared by Jai Narain, on the basis of scientific examination has proved beyond doubt that the chance prints lifted from the spot tallied with the sample prints, obtained from the accused after their arrest. The prosecution has also examined the formal witnesses to establish the link that the chance prints and the sample prints in their intact condition reached the Forensic Science Laboratory, Maduban. The witnesses who remained custodian of chance prints and sample prints before these reached the Forensic Science Laboratory, Maduban are examined during trial, namely, HC Shiv Kumar (PW8), ASI Hoshiar Singh(PW9), HC Chhaju Ram (PW13) and Constable Ramesh Chander (PW17), who tendered in evidence their formal affidavits, Ex. PG, Ex. PH, Ex. PM and Ex. PV, respectively. It has been proved by the prosecution that initially only the chance prints were sent to the Forensic Science Laboratory for comparison with the impressions of certain bad elements available with the Laboratory. It was reported that the chance prints did not tally with the standard prints available in the laboratory. After the arrest of the accused, their sample impressions of finger prints were sent to the Forensic Science CRA No. 537 DB of 2007 9 Laboratory, but only one finger each of accused Parmod and Madan tallied with the chance finger prints lifted from the spot. The accused have not tendered any explanation as to how their chance prints could be available at the scene of crime. This is not the plea of the accused that they were acquaintances of Sheela Devi or had ever visited her house prior to the occurrence. The evidence of the prosecution on the basis of scientific investigation, in our considered opinion, is sufficient to prove the guilt of the accused. The prosecution has led cogent and convincing evidence without any link missing to prove that the chance prints found on the spot and lifted by the expert actually tallied with the sample prints given by appellants Parmod and Madan. There is no challenge to the prosecution case that the sample finger prints of the appellants Parmod and Madan were obtained by the investigating officer after their arrest.
Much stress has been laid by counsel for the appellants that evidence regarding arrest of the accused in the area of Jalpaigudi (West Bengal) and recovery of incriminating articles has been manufactured to lend support to the case of the prosecution. The appellants have not alleged any illwill, animosity with them either by the complainant or the investigating officer or the witnesses, associated during proceedings of arrest and recovery in the area of police Station Nagar Kata, Jalpaigudi (West Bengal).
SI-Balwan Singh (Investigating Officer) of CIA Staff, Hisar, went to Jalpaigudi (West Bengal) for arrest of the accused in execution of warrants of arrest issued by the Court of Judicial Magistrate Ist Class, Hisar. The warrants of arrest of the accused were obtained by SI-Sube Singh, who conducted a part of the investigation at the commencement of the CRA No. 537 DB of 2007 10 proceedings of this case. After arrest of the accused, SI-Balwan Singh submitted an application before Illaqua Magistrate, Jalpaigudi (West Bengal) for their transit remand and permission to handcuff them as they were to be brought to Hisar (Haryana) from a long distance. It is highly difficult to believe that the accused were taken into police custody on 24.03.2003 from Hisar but still the police sought their warrants of arrest from the Court at Hisar and their transit remand from the Illaqua Magistrate, Jalpaigudi (West Bengal) with an intention to create evidence. It would have been more convenient for the investigating officer to show recoveries from the accused, had they been arrested on the day of occurrence or a day thereafter. SI-Balwan Singh and PW-Munshi Ram, the witnesses with regard to arrest of the accused in the area of Police Station Nagar Kata, Jalpaigudi (West Bengal) and recovery of incriminating articles from their possession have been examined. PW-Munshi Ram, undisputedly, an employee of Ajay Oil Company had no animosity against the accused to appear as a witness to prove their guilt. SI-Balwan Singh has deposed that though the proceedings in regard to arrest of the accused and recoveries were not conducted in the presence of any official of Police Station Nagar Kata, Jalpaigudi (West Bengal) and, therefore, does not bear attestation of a witness posted in police station Nagar Kata, Jalpaigudi (West Bengal) but a DDR entry was made in police Station Nagar Kata, Jalpaigudi (West Bengal) in regard to his visit there. The accused did not call for the records of police station Nagar Kata, Jalpaigudi (West Bengal) to prove that no entry is available in the records of police Station Nagar Kata, Jalpaigudi (West Bengal) regarding visit of SI Balwan Singh and PW Munshi Ram. Even otherwise, the investigating officer could not create an order passed by CRA No. 537 DB of 2007 11 the Judicial Magistrate, Jalpaigudi, permitting the transit remand of the accused from Jalpaigudi to Hisar. There is no evidence worthy of any value to substantiate the plea of the accused that they were detained by the police on 24.03.2003. In this view of the matter, we find it difficult to accept the plea of the accused that either they were detained on 24.03.2003 at Hisar or the entire evidence in regard to their arrest in the area of Police Station Nagar Kata, Jalpaigudi (West Bengal), has been manufactured.
SI-Balwan Singh and PW-Munshi Ram have corroborated each other that the police received secret information with regard to the availability of the accused in the area from where they were arrested. To be fair, there are certain minor contradictions in the testimonies of SI Balwan Singh and PW Munshi Ram. SI Balwan Singh has deposed that PW Munshi Ram identified the accused before their arrest was effected, but Munshi Ram stated that he did not know the accused prior to their arrest in the case. However, as both these witnesses are consistent that the police received secret information with regard to availability of the accused in the area of their arrest and the accused were the only persons available there, this contradiction cannot carry much weight. Further more, some contradictions are bound to occur in the statements of truthful witnesses and that too, whose statements are recorded before the Court after a lapse of some time. SI Balwan Singh and PW Munshi Ram were examined in this case more than three years after the arrest of the accused. In these circumstances, the accused cannot take any advantage of some minor contradictions in the testimonies of SI Balwan Singh and PW Munshi Ram. SI Balwan Singh and PW Munshi Ram, have proved on record that the accused were arrested in the area of police station Nagar Kata, Jalpaigudi (West Bengal) and their CRA No. 537 DB of 2007 12 arrest on 29.03.2003 led to recovery of currency notes and one article of gold jewellery stolen from the house of the victim. The police record further reveals that intimation with regard to arrest of accused was given to two persons of the local area from where the arrest was effected and they must be the family members or friends of the accused. The accused have not examined those persons to probablise their defence that the accused were never arrested by the police from the area of P S Nagar Kata, Jalpaigudi (West Bengal) or they were already in custody of the police when the police party headed by SI Balwan Singh went to Jalpaigudi. In this view of the matter, we do not find any merit in the contention of the appellants and the same merits rejection.
Another important aspect which invites our consideration is that the accused during their examination under Section 313 Cr.P.C. has simply denied the incriminating circumstances put to them with a usual plea of false implication and innocence. As we have already mentioned above that neither the complainant nor the investigating agency had any animosity against the accused to indict them falsely.
The prosecution has successfully proved the circumstances relied upon. As per settled proposition of law, in a case of circumstantial evidence, there must be a chain of evidence as complete as not to leave any reasonable ground for concluding consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. Apart from this, where CRA No. 537 DB of 2007 13 circumstances proved are put to the accused through his examination under Section 313 Cr.P.C. and the accused merely denies the same without any defence, then such a denial would be an additional link in the chain of circumstances to bring home the charges against the accused.
In view of what has been discussed above, we find no infirmity much less illegality in the judgment of conviction and order of sentence passed by the trial Court. Resultantly, the appeal filed by the appellants is dismissed and the conviction and sentence awarded by the trial Court is affirmed. The appellants, if on bail, be taken into custody forthwith to suffer the remaining sentence, awarded by the trial Court. Registry of this Court is directed to ensure that, in case, the accused are on bail, their warrants are executed and they are taken into custody expeditiously to suffer the remaining sentence. Trial Court record be sent back, forthwith.
(Rekha Mittal) Judge (Rajive Bhalla) Judge April 3, 2013 mohan CRA No. 537 DB of 2007 14