Punjab-Haryana High Court
Jaswinder Pal @ Sonu & Ors vs State Of Punjab on 21 December, 2009
Author: Daya Chaudhary
Bench: Jasbir Singh, Daya Chaudhary
Crl. Appeal No. 425-DB of 2001 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No. 425-DB of 2001
DATE OF DECISION: 21.12.2009
Jaswinder Pal @ Sonu & Ors. ..........Appellants
Versus
State of Punjab ..........Respondent
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mrs. Baljit Kaur Mann, Advocate
for the appellants.
Mr. D.S. Brar, Deputy Advocate
General, Punjab.
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DAYA CHAUDHARY, J.
1. The present appeal arises out of judgment of conviction and order of sentence dated 10.8.2001 passed by Sessions Judge, Hoshiarpur in Sessions Case No. 10 of 2000 vide which the accused-appellants have been convicted and sentenced to undergo life imprisonment under Section 302/34 IPC. Accused-Jaswinder Pal @ Sonu has further been convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.2000/- and in default of payment of fine to undergo rigorous imprisonment for three months under Section 376 IPC. Both the substantive sentences awarded to accused-Jaswinder Pal were ordered to run concurrently.
2. Briefly, the facts of the prosecution case are that a formal FIR was registered on the basis of statement made by complainant-Kamla Crl. Appeal No. 425-DB of 2001 (2) Devi, the mother of the deceased-Rekha Rani stating therein that she is a household lady and has three daughters out of which Rekha Rani aged about 17 years was a student of 10+2 class in D.A.V. College, Garhshankar. She was going to Government Senior Secondary School, Garhshankar for learning 'karate' for the last about two months. On 18.11.1999 at about 5.30 am, Rekha Rani left her house for learning karate on foot but she did not return home till evening. Search was made to locate Rekha Rani but in vain. On 19.11.1999 i.e. on the next day at about 11.00 am, complainant came to know that the dead body of Rekha Rani was lying on the berm of the road near Beerampur Government School and on receiving this information, complainant-Kamla Devi accompanied by Kanta Devi, Sarpanch of her village and Swaran Singh, the younger brother of her husband, reached at the spot and saw the dead body of Rekha Rani lying there with injuries on the back side of the head. From appearance, it looked that some unknown persons had committed the murder of her daughter at some other place and then threw the dead body on the berm of the metalled road near Beerampur Government School. After leaving Swaran Singh near the dead body, complainant-Kamla Devi accompanied by Kanta Devi, Sarpanch went to the police Station for reporting the matter but on the way she met the police, where she got recorded her statement, on the basis of which a formal FIR Ex. PH/1 was recorded.
3. After recording FIR, SI Ajay Singh reached at the spot where the dead body of Rekha Rani was lying, prepared rough site plan; lifted blood stained earth from the spot; prepared inquest report and sent the dead body of Rekha Rani for post mortem examination to the Civil Hospital, Garhshankar. The Investigating Officer thereafter went to the house of deceased-Rekha Rani in Village Pahlewal and on search, he found one letter Ex. PL which was written by accused Jaswinder Pal to Rekha Rani Crl. Appeal No. 425-DB of 2001 (3) and one leaf Ex. PM of diary paper on which name of "Jaswinder Rekha"
was written. The letter and leaf were taken into possession by the Investigating Officer. The Investigating Officer recorded the statement of Radha Devi, the sister of deceased-Rekha Rani, wherein, it was stated that her sister-Rekha Rani was having friendship with Jaswinder Pal and he used to visit their house. Rekha Rani used to go to his house and used to write letters to Jaswinder Pal. Radha Devi also stated that on 17.11.1999, she and Rekha Rani were doing their household work, accused Jaswinder Pal came to their house on a scooter and threw one letter inside their house, which was picked up by Rekha Rani. On 18.11.1999 at 5.30 am, Rekha Rani left her house after wearing Karate dress, green colour scarf on the head and wrist watch of citizen make for Government Senior Secondary School on foot as there was some defect in her bicycle. Rekha Rani did not return home. She and her mother searched for her but all in vain. Thereafter her uncle Swaran Singh was also informed about the incident at 11.00 am on the next day.
4. SI Ajay Singh deposited the case property with the MHC on 19.11.1999. After postmortem examination, the clothes removed from the dead body were produced by HC Gurmel Singh before SI Ajay Singh, who took the same into possession. On 22.11.1999, Jaswant Singh, resident of Village Beerampur made statement before SI Ajay Singh that on 18.11.1999 at about 6.30 pm, when he was returning from the side of village Khanpur, saw accused-Jaswinder Pal @ Sonu driving scooter make Bajaj Chetak and Rekha Rani was sitting on the pillion seat. He further stated that he also saw one another scooter make Bajaj chetak of cream colour which was being driven by Rajesh Kumar, on the pillion seat of which Ram Kishan was sitting. Kamal Kishore corroborates the prosecution version by stating that deceased-Rekha Rani and Ram Kishan @ Bunty used to come to come to his school to learn karate and on Crl. Appeal No. 425-DB of 2001 (4) 18.11.1999 both Rekha Rani and accused-Ram Kishan did not come to school and they were marked absent. After one seek accused-Ram Kishan came to his house and told him that he committed a mistake by committing murder of Rekha Rani with the help of two persons. SI Ajay Singh conducted raid at the house of accused-Jaswinder Pal and could not meet him as his house was locked. On 2.12.1999, he arrested accused Jaswinder Pal @ Sonu, Ram Kishan @ Bunty and Rajesh Kumar and took into possession a scooter of Rajesh Kumar from village Pahlewal. During interrogation, accused-Jaswinder Pal suffered a disclosure statement on the basis of which one scooter and daat were recovered. Accused-Rajesh Kumar also made a disclosure statement, pursuant to which recovery of a wrist watch was made. Rough site plans of both places of recovery were prepared. Accused-Jaswinder Pal again made disclosure statement to the effect that he had concealed the love letters written by deceased-Rekha Rani, in the dicky of the scooter. The Investigating Officer took the same into possession and deposited the same with the MHC of the Police Station.
5. Dr. Harbhajan Singh vide order Ex. PA/1 constituted Board of Doctors consisting of Dr. Narinder Kumar, Dr. Gurpal Singh and Dr. Sunita Nadda for conducting postmortem examination on the dead body of Rekha Rani. Dr. Sunita Nadda did not join the medical board as she was not well. Dr. Gurpal Singh along with Dr. Narinder Kumar conducted postmortem examination on the dead body of Rekha Rani on 20.11.1999 at 1.30 am and found following injuries on the person of the deceased:-
1. Reddish brown contusion 3.4 cm x 2.2. cm present on left side of face in front of lower part of left pinna and covering the lobule of left pinna.
2. Reddish brown contusion 4.5 cm x 2.5 cm present on left side of neck.
Crl. Appeal No. 425-DB of 2001 (5)
3. An incised wound 2.5 cm x 0.5 cm on scalp 2.5 cm above the occipital protuberance in the middle and transversely placed, bone deep.
4. Incised wound 2.5 cm x 0.5 cm present on scalp right side 1.4 cm right to the injury No.3 and obliquely placed.
5. Incised wound 1.8 cm x 0.2 cm on the right side of scalp 1 cm above injury No.4 and continuous with injury No.4.
6. Incised wound 3.3 cm x 0.5 cm present on the scalp one cm above injury No.5 obliquely placed, bone deep.
7. Left femur was fractured in the middle. On dissection infilteration of blood was present.
8. Six reddish brown abrasion present on the left leg. 4 in front and 2 on the back, varying in size from 0.4 cm to 0.3 cm to 1.2 cm x 0.8 cm.
9. Two reddish brown abrasions present in the front of right leg 2.6 cm x 0.5 cm and 0.6 cm x 0.4 cm.
10.Brownish abrasion 2.6 cm x 0.3 cm transversely placed present on the front of right of thigh.
11.Brownish abrasion 10.5 cm x 1.5 cm obliquely placed on anterior medial side of right thigh 4 cm above and 2.5 cm medial to injury No.10.
12.Reddish brown abrasion 0.8 cm x 0.6 cm present on anterior surface of right wrist in the centre. On dissection of the brain sub dural haemorrhages were present. Blood clots were present on the surface of brain and the brain was congested.
Crl. Appeal No. 425-DB of 2001 (6) As per opinion of Dr. Gurpal Singh, sub-dural haemorrhages were present. Blood clots were present on the surface of brain and brain was congested. Stomach and bladder were empty and all the injuries on the person of deceased were ante mortem in nature. The cause of death was deferred to be given after the receipt of report of Chemical Examiner.
The doctors, who conducted postmortem examination, also sent swabs and slides taken from outside of vagina, swab and slide taken from posterior fornix and the pubic hair to Chemical Examiner, Government of Punjab, Patiala for examination. As per report of the Chemical Examiner Ex. PJJ, semen was found on swab taken from outside of vagina, on swab taken from middle of vagina, swab from posterior fornix and slide from posterior fornix and no spermatozoa were found from slide from outside of vagina, slide from middle of vagina and pubic hair. According to the opinion of Board of doctors given in the postmortem report, the time that elapsed between death and postmortem was between 24 to 36 hours. After the receipt of report of Chemical Examiner Ex. PJJ, Dr. Narinder Kumar, Medical Officer gave opinion vide report Ex. PKK that sexual intercourse had taken place with the deceased-Rekha Rani. Dr. Narinder Kumar vide his report Ex. PTT sent to the SHO, Police Station Garhshankar opined that the cause of death of Rekha Rani was coma due to injuries No.3 ,4, 5 and 6, which was sufficient to cause death in ordinary course of nature. Dr. Narinder Kumar also medico legally examined accused-Jaswinder Pal, Ram Kishan and Rajesh Kumar and found that they were capable of performing sexual intercourse.
6. On 6.12.1999, SHO, Police Station Garhshankar made an application to Sub Divisional Judicial Magistrate, Garhshankar that sample writing of accused-Jaswinder Pal may be taken in the court. Accused- Jaswinder Pal refused to give his sample writing as the police has obtained the same from him in the Police Station.
Crl. Appeal No. 425-DB of 2001 (7)
7. After completion of investigation and necessary formalities, challan against the accused-appellants was presented in the Court of Sub Divisional Judicial Magistrate, Garhshankar, who vide his order dated 18.2.2000 committed the case to the Court of Sessions for trial. Charge under Section 302/34 IPC was framed against all the accuse-appellants. Accused-Jaswinder Pal was also charged under Section 376 IPC for committing rape upon Rekha Rani. All the three accused pleaded not guilty and claimed trial.
8. In order to prove its version, the prosecution examined Dr. Harbhajan Singh (PW-1), Smt. Anita Bariaha (PW-2), Bharat Singh (PW-
3), Kulwant Kaur (PW-4), Hari Singh (PW-5), Karam Chand (PW-6), Kamla Devi (PW-7), Swaran Singh (PW-8), MHC Jasbir Singh (PW-9), Satnam Singh (PW-10), Chet Ram (PW-11), Jaspal Singh (PW-12), Dr. Gurpal Singh (PW-13), Radha Devi (PW-14), Kamal Kishore (PW-15), Gurmaninder Singh (PW-16), Jaswant Singh (PW-17), ASI Balbir Singh (PW-18), Dr. Narinder Kumar (PW-19) and SI Ajay Singh (PW-20).
9. After the close of the prosecution evidence, all the three accused were examined under Section 313 Cr.P.C., wherein, they denied the allegations of the prosecution and pleaded innocence and false implication. They further stated that they had falsely been implicated in a blind murder case at the instance of the police. Accused-appellants also examined Shri Krishan Dev as DW-1.
10. The learned trial Court, on appreciation of evidence on record, convicted and sentenced the accused-appellants for the offence, as mentioned above. The present appeal has been filed by the accused- appellants by taking various grounds.
11. Mrs. Baljit Kaur Mann, learned counsel for the accused- appellants argued that the accused-appellants have falsely been implicated in a blind murder case by believing the last seen evidence and extra Crl. Appeal No. 425-DB of 2001 (8) judicial confession made by accused-appellant-Ram Kishan before Kamal Kishore (PW-15).
12. Mrs. Mann further argued that the prosecution has wrongly relied upon the statement of Jaswant Singh (PW-17), who has 'last seen' the deceased in the company of accused-Jaswinder Pal. The name of accused-Jaswinder Pal was not mentioned in the FIR, which was got recorded on the basis of statement made by complainant-Kamla Devi, the mother of the deceased. The extra judicial confession made by accused- Ram Kishan before Kamal Kishore, Karate teacher is also not worth believing, as neither the presence of Ram Kishan was proved by producing any document like receipt of the fee to show that Ram Kishan was a student in the School of Kamal Kishore. It was only stated by Kamal Kishore that accused-Ram Kishan and deceased-Rekha Rani used to come to his school for learning karate and after one week of the date of occurrence, accused-appellant-Ram Kishan made extra judicial confession before him stating that he with the help of two other persons committed the murder of Rekha Rani. Mrs. Mann stated that there was no reason to make extra judicial confession before Kamal Kishore (PW-15) as neither he was a public man nor holding any position in the society
13. Mrs. Mann further argued that the prosecution has based its case on circumstantial evidence, chain of which is not complete and many links are missing. The unnatural conduct of Jaswant Singh (PW-17), who has lastly seen the deceased with accused-Jaswinder Pal makes the prosecution story doubtful. Mrs. Mann stated that a crude attempt has been made to cover up the gap in the circumstantial story and a false witness has been planted just to complete the story. The ocular evidence has also not been corroborated with medical evidence, as Dr. Gurpal Singh (PW-
13), conducted post mortem examination on the dead body of deceased has stated in his cross-examination that the deceased was used to sexual Crl. Appeal No. 425-DB of 2001 (9) intercourse.
14. Mrs. Mann lastly argued that the FIR was registered only on the basis of suspicion, wherein, names of the accused-appellants were not mentioned. It was simply stated by complainant-Kamla Devi, mother of deceased that some unknown persons committed murder of her daughter at some other place and dead body was thrown on the berm of the metalled road near Beerampur Government School. The recovery of love letters from the house of deceased does not connect accused-Jaswinder Pal with the alleged crime as it is not established that these letters were written by the accused.
15. Mr. D.S. Brar, learned Deputy Advocate General, Punjab argued that the prosecution has fully proved its case on the basis of evidence of last seen, extra judicial confession and recovery of love letters, which were recovered from the house of deceased. The recovery of scooter on which the deceased and accused-Jaswinder Pal were lastly seen by Jaswant Singh (PW-17) has also been proved on the basis of consistent statements of prosecution witnesses. The ocular evidence has been corroborated by medical evidence as the cause of death was coma due to injuries No.3,4,5 and 6 which were sufficient to cause death in ordinary course of nature. The story of prosecution is based on circumstantial evidence, chain of which is complete and no link is missing.
16. We have heard the arguments of learned counsel for the parties and perused the evidence and other documents available on record.
17. Admittedly, deceased-Rekha Rani did not come to her house on 18.11.1999 after attending her karate class and sufficient efforts were made by her mother to trace her. On 19.11.1999, complainant-Kamla Devi was informed that the dead body of Rekha Rani was lying on the berm of the road near Beerampur Government School. The FIR was registered on Crl. Appeal No. 425-DB of 2001 (10) the basis of suspicion. It was simply mentioned that some unknown persons committed murder of her daughter at some other place and then threw the dead body on the berm of the metalled road near Beerampur Government School. Dr. Gurpal Singh (PW-13) found total 12 injuries on the person of deceased and all the injuries were ante mortem in nature. Dr. Narinder Kumar, (PW-19) Medical Officer gave opinion vide report Ex. PKK that sexual intercourse had taken place with the deceased-Rekha Rani and cause of death was coma due to injuries No.3,4,5 and 6, which were sufficient to cause death in ordinary course of nature. The accused- appellants were also found capable of performing the act of sexual intercourse.
18. The case of the prosecution is based on circumstantial evidence. No doubt it is a case of blind murder as the dead body of the deceased with 12 injuries was found lying on the road berm, which resulted into her death. The prosecution has relied upon the evidence of last seen by Jaswant Singh (PW-17), extra judicial confession made by accused- Ram Kishan before Kamal Kishore (PW-15) and love letters written by deceased as well as accused-Jaswinder Pal found in the house of deceased.
19. Now, the question arises for consideration before this Court is whether the accused-appellants have committed murder of deceased- Rekha Rani and committed rape upon her before murder or not.
20. As far as the case of accused-appellant-Jaswinder Pal is concerned, the trial Court has convicted him under Sections 302/34 and 376 IPC. The factum of rape upon deceased-Rekha Rani has been proved by Dr. Narinder Kumar (PW-19), who conducted postmortem examination on her dead body. He stated that the injuries on the dead body of deceased were suggestive of struggle between the victim and the assailants before the death. The factum of rape has also been proved on Crl. Appeal No. 425-DB of 2001 (11) the basis of report of Chemical Examiner Ex. PJJ, wherein, it has been clearly mentioned that sexual intercourse has been committed with deceased-Rekha Rani. The last seen evidence against accused-Jaswinder Pal has also been proved on the basis of statement made by Jaswant Singh (PW-17), who stated that on 18.11.1999 at about 6.30 am, he saw deceased and accused-Jaswinder Pal going on scooter make Bajaj Chetak. The scooter was taken into possession by the Police and the same was found registered in the name of father of accused-Jaswinder Pal. The love letters recovered from the house of deceased-Rekha Rani and statement made by Radha Devi (PW-14), sister of deceased-Rekha Rani proves friendship between the deceased and accused-Jaswinder Pal. Radha Devi in her statement stated that accused-Jaswinder Pal was on visiting terms for the last one year and he was having friendship with Rekha Rani. On 17.11.1999 also, when she and her sister were doing their household work, accused Jaswinder Pal came on scooter and threw one letter through window. From the facts mentioned above, involvement of accused-Jaswinder Pal has fully been proved on the basis of statements of Jaswant Singh (PW-17) and Radha Devi (PW-14) and medical evidence.
21. As far as the role of accused-Ram Kishan is concerned, it has come in the statement of Kamal Kishore (PW-15) that accused-Ram Kishan and deceased-Rekha Rani used to attend his school of Judo karate and on 18.11.1999, both were absent. He further stated that after one week of death of Rekha Rani, accused-Ram Kishan came to his house and told him that he had committed murder of Rekha Rani. This is the only evidence against accused-Ram Kishan. The name of accused-Ram Kishan does not find mention either in the statement of Jaswant Singh or Radha Devi. As far as the statement of Kamal Kishore (PW-15) is concerned, it has been mentioned that accused-Ram Kishan told him regarding murder of Rekha Rani with the help of two other persons. No Crl. Appeal No. 425-DB of 2001 (12) detail has been given as to how the murder has been committed or what was the motive behind it. Even the name of other two persons have not been given in the statement made before Kamal Kishore (PW-15). Moreover, it has not been proved from the statement of Kamal Kishore that accused-Ram Kishan was taking training of judo karate from his school as no receipt regarding fee or any enrollment with his school has been produced on record. Except the statement of Kamal Kishore (PW-15), there is no other material available on record to connect accused-Ram Kishan with the alleged murder of Rekha Rani.
22. Similarly, as far as the role of accused-Rajesh Kumar is concerned, the only evidence against him is the disclosure statement made by him before SI Ajay Singh, on the basis of which a wrist watch, kept concealed in the bushes near the road leading to Khanpur was recovered. The disclosure statement is the only sole evidence to connect accused- Rajesh Kumar with alleged commission of crime.
23. The participation of accused-Ram Kishan and Rajesh Kumar has not been proved by the statements of prosecution witnesses and they cannot be held liable for committing murder of Rekha Rani. It is a settled law that in case of circumstantial evidence if the chain of circumstances is not complete and link evidence is missing, the accused-appellant cannot be convicted.
24. From the facts mentioned above, participation of accused-Ram Kishan and Rajesh Kumar has not been proved with the alleged commission of offence and they cannot be convicted only on the basis of extra judicial confession and disclosure statement. Moreover, the extra judicial confession made by the accused-Ram Kishan before a person who had no influence with the police does not inspire confidence. This view has been supported by the judgment of this Court in the case of Satinder Pal Singh @ Sikander Singh & Others Vs. State of Punjab 2005 (4) RCR Crl. Appeal No. 425-DB of 2001 (13) (Criminal) 494.
25. As far as the case of accused-appellant-Jaswinder Pal is concerned, the prosecution has fully proved its case against him on the basis of last seen evidence, statement of Radha Devi, sister of deceased- Rekha Rani and same has been corroborated by medical evidence. Accordingly, the appeal is partly allowed. Accused-appellants, namely, Ram Kishan and Rajesh Kumar are hereby acquitted of the charges framed against them. If they are on bail, they shall stand discharged of their bail bonds and if they are in custody, they shall be set at liberty at once, if not required in any other case.
25. Appeal qua accused-Jaswinder Pal is dismissed. The judgment of trial Court is upheld.
(DAYA CHAUDHARY)
JUDGE
December 21, 2009 (JASBIR SINGH)
pooja JUDGE
Note:-Whether this case is to be referred to the Reporter .......Yes/No