Punjab-Haryana High Court
Bharat Ram vs State Of Punjab on 19 December, 2008
Author: Sabina
Bench: S.S.Saron, Sabina
Criminal Appeal No.639-DB of 2005 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.639-DB of 2005
Date of decision: 19.12.2008
Bharat Ram
......Appellant
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MR.JUSTICE S.S.SARON
HON'BLE MRS. JUSTICE SABINA
Present: Mr. Aseem Rai, Advocate,
for the appellant.
Mr.S.S.Gill, Addl.A.G, Punjab.
****
JUDGMENT
SABINA, J.
Bharat Ram has filed this appeal against the judgment and order dated 14.3.2005 passed by the learned Additional Sessions Judge, Rupnagar.
Prosecution story in brief is that on 17.9.2000 Ranjit Singh @ Sonu (deceased) son of complainant Darshan Singh had gone to Chhinj Fair in village Khizrabad at about 5.00 p.m. after Criminal Appeal No.639-DB of 2005 2 taking Rs.5/- from his mother Kulwant Kaur. Ranjit Singh @ Sonu, however, did not return back home after close of the fair. The complainant got worried and searched for his son here and there along with some villagers. The complainant also informed the police of Police Post Khizrabad about the disappearance of his son, who was aged 7 ½ years and was 4 ft. in height, wearing a light grey Nikkar (shorts) and shirt and had tied his hair on the head and covered it with a white handkerchief. Ranjit Singh @ Sonu (deceased) spoke Punjabi. His face was round in shape and his eyes were big and he was bare foot. On the basis of the statement of the complainant DDR No.15 dated 17.9.2000 was registered by the police of Police Post Khizrabad, Police Station, Kurali.
On 19.9.2000, the statement of the complainant was again recorded by the police of Police Post Khizrabad, wherein the complainant stated that on 17.9.2000 his son Ranjit Singh @ Sonu aged 7 ½ years had gone to the Chhinj Fair in the village at 5.00 p.m. but had not returned back home after the close of the fair. The complainant along with his family members had been searching for his son and had also lodged a report with the Police Post. On 19.9.2000, the complainant was going in search of his son, then he met Jagroop Singh son of Manjit Singh Saini at the bus stand, who told him (complainant) that on 17.9.2000, he along with Gurdip Singh, Satnam Singh and Narinder Singh, residents of Khizrabad had gone to the Chhinj Fair at about 5.30 p.m. While they were Criminal Appeal No.639-DB of 2005 3 standing to urinate on the kachha path (un-mettled path) leading from Khizrabad to Sangatpura, they saw servant of the complainant i.e. Bharat Ram taking Ranjit Singh @ Sonu with him by holding him from his arm. Hence, the complainant had full belief that his servant Bharat Ram had abducted his son Ranjit Singh @ Sonu with an intention to kill him. The servant of the complainant was also missing from that day. On the basis of the said statement, formal FIR No.81 dated 19.9.2000 was registered by the police of police Station Kurali District Rupnagar.
ASI Bhag Singh, after recording of the FIR, went to the house of the complainant and recorded the statements of the witnesses. On 19.9.2000 appellant Bharat Ram was arrested and during interrogation, he suffered a disclosure statement that he had abducted Ranjit Singh @ Sonu aged 7 ½ years on 17.9.2000 at 5.00 p.m. He committed an un-natural offence with Ranjit Singh @ Sonu near Sangatpura 'Choe' in the Sarkanda and, thereafter, killed Ranjit Singh @ Sonu by strangulating him with his Baniyan (vest) as Ranjit Singh @ Sonu had told him (appellant) that he would report about the un-natural offence to his parents. Appellant Bharat Ram further disclosed that he had thrown the dead body in the stagnant water in the area of Khizrabad and had also kept concealed one vest and underwear in the shrubs, which was in his exclusive knowledge and offered to get the same recovered. On the basis of the disclosure statement of the appellant, the vest and underwear were recovered Criminal Appeal No.639-DB of 2005 4 from the disclosed place and were taken in possession. The dead body was also got recovered from the disclosed place. The inquest report was prepared and the dead body was sent for postmortem examination.
Dr. Dharam Singh along with Dr.H.N.Sharma and Dr.Navtej Singh conducted the postmortem examination on the dead body of Ranjit Singh @ Sonu on 20.9.2000 and found following injuries on his person:-
"1. A contusion of 4 cm broad in centre tapering towards of angle mandible where it is 2 cm and the length of the injury is 7 cm is present in the center of the neck in the area of thyroid prominence extending from the area just below the right angle of mandible to the left angle. Dark red in colour. On disection of the injury over the neck the subcutaneous tissue is parchment like and the surrounding area is eccymosed. On further dissection underline muscle show haemorrhage. On further dissection thyroid cartilage is fractured in interiolateral aspect on right side.
2. A contusion 1 x 1 cm over the left occipital region 3 cm superios to the posterior hair line and 2 cm from the mid line.
Length of the body was 4' 5". It was a decomposed putrefied body of a male child, well built, well nurished. Wearing light greenish colour nikkar and shirt with long Criminal Appeal No.639-DB of 2005 5 scalp hair, tied with while coloured hanky. Peeling of skin and blisters present at places with marbling of the skin. The testis, penis are swollen and rectum is protruding out. Eye balls are protruding and the mouth is open. Tongue is also protruding out. Maggots creeping over the body. Bleed from the ear present. Ear lobule edematous.
On dissection of the scalp over the contused area no fracture of the skull on opening the skull the memberance were congested on further dissection brain matter was congested. Pleurae, larynx and tracheae right and left long congested. Lungs when cut shows coloured blood right chamber of the heart full of dark coloured blood. Face swollen. Pharynx congested. Stomach healthy contained 30 cc of semi solid food. Liver, spleen, kidney congested. Anus part about 4 cm removed and sent for histopathology to Govt. Medical College, Patiala. Rigor mortis locatable weakly in the extremities.
The cause of death in this case in the opinion of board was due to asphyxia consequent to strangulation as described above. This injury was ante mortem in nature and would lead to death in ordinary course of death."
Dr.Dharam Singh, while appearing in the witness box as Criminal Appeal No.639-DB of 2005 6 PW-6, further deposed as under:-
"On receipt of report of histopathology No.66/2K in respect of PMR No.5/DS/2000 dated 20.9.2000 and received on 17.11.2000 because the tissue was fully autolysed there was no opinion possible in respect of histopathology report of anus area. The report of histopathology is Ex.PW6/D, which was received by me"
Appellant Bharat Ram was also got medically examined on 20.9.2000 and Dr.Gulshan Rai opined that there was nothing to suggest that Bharat Ram was unable to perform sexual act.
After completion of investigation and necessary formalities appellant Bharat Ram was sent up for trial. Charge against the accused/appellant was framed under Section 377/302 IPC on 8.1.2001, to which he did not plead guilty and claimed trial.
The prosecution in order to prove its case examined 15 witnesses at the trial. After close of prosecution evidence, the appellant when examined under Section 313 of the Code of Criminal Procedure ( 'Cr.P.C' for short) submitted that he was innocent and the witnesses were interested witnesses. No witness was examined by the accused in his defence despite opportunity having been granted.
Learned trial Judge accepted the prosecution version and convicted the appellant for the offence punishable under Section 377 of the Indian Penal Code ('IPC' for short) and sentenced him to Criminal Appeal No.639-DB of 2005 7 undergo rigorous imprisonment for a period of ten years and a fine of Rs.5,000/-. The appellant was also convicted under Section 302 IPC and was sentenced to undergo imprisonment for life and a fine of Rs.5,000/-. Both the sentences were ordered to run concurrently.
Learned counsel for the appellant has argued that the prosecution had failed to prove its case. From the medical evidence, it could not be said that the appellant was guilty of the offence of sodomy. Hence, the appellant had no motive to commit the murder of deceased Ranjit Singh @ Sonu. No reliance could be placed on the testimony of Joginder Singh (PW-3), who was a related witness and his statement was at variance with the testimony of the complainant. As per Joginder Singh (PW-3), deceased Ranjit Singh @ Sonu had gone to the Chhinj Fair with the appellant, whereas, the complainant had stated that the deceased had gone to the fair on his own. As per the complainant, Jagroop Singh had told him that he had seen the appellant taking away the deceased with him. However, the said Jagroop Singh had not been examined by the prosecution. As per the complainant, the appellant was present in the house of the complainant on 17.9.2000 and, hence, the finding of the learned trial Court to the effect that the appellant was also missing from 17.9.2000 is against the evidence on record.
Learned State counsel, on the other hand, has argued that from the medical evidence, it was evident that the deceased had been subject to sodomy and, thereafter, he was murdered by Criminal Appeal No.639-DB of 2005 8 strangulation. The appellant evidently came back in the evening to the house (bara) of the complainant on 17.9.2000 to verify if there was any suspicion against him but thereafter, he did not return to the house of the complainant. Gurdip Singh (PW-5), who had seen the appellant taking away deceased Ranjit Singh @ Sonu, was examined and he had duly supported the prosecution case. The name of Gurdip Singh (PW-5) that he had "last seen" the appellant taking away the deceased was duly reflected in the FIR.
After hearing learned counsel for the appellant and the learned State counsel and going through the entire evidence on record, we find that the present appeal deserves to be dismissed.
The present case rests on circumstantial evidence. It has been held in Vasa Chandrasekhar Rao v. Ponna Satyanarayana, 2000(3) Recent Criminal Reports 96 (SC) that in a case of circumstantial evidence, in order to establish the guilt of the accused, it was necessary to prove the circumstances fully and it was further held as under:-
(i) "Circumstances should be conclusive in nature.
(ii) All facts so established, should be consistent only with hypothesis of the guilt and inconsistent with innocence.
(iii)Circumstances should exclude the possibility of guilt of any person other than the accused.
(iv)In order to justify an inference of guilt, circumstances Criminal Appeal No.639-DB of 2005 9 must be incompatible with innocence of accused.
(v) Cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offence beyond reasonable doubt.
(vi) Where accused on being asked, offers no explanation or explanation is found to be false, then that itself forms an additional link in chain of circumstances."
The prosecution case is to be examined in this perspective as to whether the prosecution has been able to establish the chain of circumstances, which would lead to the guilt of the appellant.
The appellant was working as a servant in the house of the complainant. On the day of occurrence i.e. 17.9.2000, deceased Ranjit Singh @ Sonu, son of the complainant, had gone to the Chhinj Fair in his village at 5.00 p.m. after taking Rs.5/- from his mother. The complainant, while appearing in the witness box as PW-2, has categorically deposed that his son had gone to the fair in his village, whereas, Joginder Singh (PW-3) deposed that his grand son Ranjit Singh @ Sonu (deceased) had gone to the village fair with the appellant. This in itself is not such a major discrepancy which can prove fatal to the prosecution case. From the testimony of PW-2 and PW-3, it can be inferred that the deceased had gone to the village fair at 5.00 p.m. on 17.9.2000. Apparently, the deceased had not gone to the village fair with the appellant from his house. Initially the Criminal Appeal No.639-DB of 2005 10 complainant had no suspicion on anybody with regard to the disappearance of his son and he lodged DDR No.15 dated 17.9.2000 with the police regarding disappearance of his son and also reported that he had no suspicion on anybody with regard to the disappearance of his son. It is only when the complainant was informed on 19.9.2000 by Jagroop Singh, that the appellant was seen taking away deceased Ranjit Singh @ Sonu at about 5.30 p.m., by him along with Gurdip Singh (PW-5), Narinder Singh and Satnam Singh, the complainant lodged the FIR against the appellant. During trial Jagroop Singh was given up by the prosecution as having been won over. However, Gurdip Singh (PW-5) was examined by the prosecution to establish that the appellant was seen taking away the deceased on 17.9.2000.
Gurdip Singh (PW-5) deposed that he had gone to Chhinj Fair on 17.9.2000 along with Jagroop Singh, Narinder Singh and Satnam Singh. On that day they saw appellant Bharat Ram taking away Ranjit Singh @ Sonu with him towards village Sangatpura. The appellant had caught hold of the deceased from his arm. After 40-45 minutes the appellant returned back alone from village Sangatpura side. The Chhinj Fair closed at 6.00 p.m. and then they all went to their respective houses. The statement of this witness was also recorded by the police during investigation of the case. Hence, merely because PW Jagroop Singh was given up as having been won over is not fatal to the prosecution case as name of Gurdip Criminal Appeal No.639-DB of 2005 11 Singh (PW-5), who had also allegedly seen the appellant taking away the deceased along with Jagroop Singh, Narinder Singh and Satnam Singh, is mentioned in the FIR itself. Hence, it cannot be said that Gurdip Singh (PW-5) was introduced at a later stage. Besides, the said witness had duly joined the investigation and his statement was also recorded by the police. His testimony to the effect that he had seen the appellant taking away the deceased with him towards village Sangatpura could not be shaken during cross- examination. Thus, the appellant was "last seen" with the deceased.
Complainant Darshan Singh (PW-2) deposed that his servant was also missing from the same day i.e. 17.9.2000. Learned counsel for the appellant has laid great emphasis on the cross- examination of this witness, wherein he deposed that appellant Bharat Ram had returned to his house (Bara) on 17.9.2000 and had also searched for the boy. The appellant remained in the bara till 7/8 p.m. and, thereafter, he disappeared. From a combined reading of the examination-in-chief and cross-examination of the complainant, it is evident that the appellant did not return to work after 17.9.2000. Initially the appellant returned to the bara of the complainant and remained there upto 7/8 p.m. and, thereafter, the appellant disappeared. It is possible that the appellant came to the spot on the day of occurrence after he had committed the crime to find out as to whether there was any suspicion against him or not. Feeling satisfied that there was no suspicion against him, the appellant went Criminal Appeal No.639-DB of 2005 12 away and, thereafter, did not return back to the bara of the complainant. Hence, there is no material contradiction in the examination-in-chief and cross examination of the complainant which could make his testimony doubtful. Rather the complainant has deposed in the most natural manner and his statement inspires confidence.
After the appellant was arrested, he suffered a disclosure statement and on the basis of the same, dead body of Ranjit Singh @ Sonu was recovered from the disclosed place. The vest and underwear were also recovered from the disclosed place at the instance of the appellant. In this regard, Joginder Singh (PW-3) has duly corroborated the testimony of the official witnesses.
Dr.Dharampal Singh (PW-6) has proved the report of postmortem examination conducted by him along with other members of the Board. This witness has deposed that the rectum of the deceased was protruding out. It has been opined in Modi's Medical Jurisprudence and Toxicology 22nd Edition page 526, while dealing with Examination of the Habitual Passive Agents and while discussing the signs usually met with in a passive agent habituated to the act of sodomy in Clause (iii), as under:-
"The dilated and patulous condition of the anus with disappearance of its radial folds and the prolapse of the rectal mucosa as the sphincter is relaxed. In a dead body, the anal orifice dilates from the relaxation of the Criminal Appeal No.639-DB of 2005 13 sphincter and the protrusion of the rectum occurs from force of decomposition gases."
The case of a child can be treated at par with that of habitual passive agents. Since the dead body was recovered from stagnant water on 19.9.2000, whereas, the offence had been committed on 17.9.2000, the dead body was in a putrefied condition. Due to this reason no opinion was possible with respect of histopathology report of anus area. Apparently, since the anus area had suffered the assault, it resulted in the relaxation of the anal muscle and consequently there was protrusion of the rectum.
Apparently, due to the fact that the dead body was lying in the stagnant water before it was discovered, there was no possibility of detecting presence of spermatozoa from the area of assault. The fact that the doctor found that testis and penis of the deceased were swollen and the rectum was protruding out further lead to the conclusion that the offence of sodomy had been committed on the person of the deceased before he was strangulated to death. There is no doubt that in some cases testis and penis are found swollen when the dead body is recovered from water but in the facts of the present case, moreso as the rectum was also protruding out, the fact that the testis and penis were also found swollen lead to the inference of commission of offence of sodomy.
The cause of death, as per the opinion of the board of doctors, was asphyxia due to strangulation. It is evident that after the Criminal Appeal No.639-DB of 2005 14 offence of sodomy was committed by the appellant, he committed the murder of the victim of sodomy, so that the victim may not disclose the offence of sodomy committed by him on the person of the victim. The victim i.e. Ranjit Singh @ Sonu was a helpless child aged 7 ½ years and the appellant after committing the offence of sodomy went on to commit the murder of a child. All these circumstances proved on record by the prosecution, thus, lead to the conclusion of a guilt of the appellant. Hence, the learned trial Judge had rightly convicted and sentenced the appellant for the offences punishable under Sections 377/302 IPC. The impugned judgment and order, therefore, do not call for any interference.
Accordingly, this appeal is dismissed.
(SABINA) JUDGE (S.S.SARON) JUDGE December 19, 2008 anita