Punjab-Haryana High Court
Harvinder Singh vs State Of Punjab on 3 March, 2009
Author: Daya Chaudhary
Bench: Satish Kumar Mittal, Daya Chaudhary
Crl.Appeal No.890 DB of 2004 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl.Appeal No. 890 DB of 2004
Date of decision: 4.3.2009
Harvinder Singh
.....Appellant
Vs.
State of Punjab
....Respondent
CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL.
HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
PRESENT: Mr.Sanjeev Manhas, Advocate,
for the appellant.
Mr.Rajesh Bhardwaj, Addl. A.G.Punjab,
for respondent.
***
DAYA CHAUDHARY, J.
The present appeal arises out of the judgment of conviction and order of sentence dated 17.8.2004 in Sessions Case No. 17 of 8.11.2002 passed by Sessions Judge, Ropar, whereby Harvinder Singh accused- appellant has been convicted for offence under Sections 302 and 201 of the Indian Penal Code and sentenced as under:
U/s 302 IPC : to undergo life imprisonment.
U/s 201 IPC : to undergo RI for two years and to pay fine of Rs.1000/-. In default of payment of fine to undergo further RI for six months.
All the sentences were directed to run concurrently Briefly, the facts of the prosecution case are that on 14.9.2002 Om Preeti complainant made statement Ex.PH in the Police Station Kharar to the effect that in the year 1995 she was married with Dharam Pal and a son Rahul was born out of the wedlock in the year 1997. Her husband Crl.Appeal No.890 DB of 2004 [2] Dharam Pal died on 27.6.2000. Thereafter, she performed kareva marriage with Harvinder Singh appellant on 4.2.2002. On 24.8.2002, she along with her husband Harvinder Singh went to Dashmesh Public School, Mundi Kharar, for admission of her son Rahul, who was got admitted in the school with the condition that admission fee would be deposited later on. Rahul started attending the school and she used to drop him and pick him up from the school. On 29.8.2002, Harvinder Singh went to drop Rahul in the school at about 8.00 a.m. and he was in school uniform along with school bag and a tiffin box on which name of Rahul was inscribed in Punjabi. It was told by Harvinder Singh accused that after leaving Rahul in the school, he would go to Ropar to get registration number of the scooter. The complainant went to the school at about 4.00 p.m. to pick up her son Rahul but he was not found there. She was told by the Principal of the school that Rahul had not reached the school. Thereafter, on reaching Harvinder Singh from Ropar, both made efforts to search for Rahul but all in vain. Thereafter, a report regarding missing of Rahul was made. It was further stated by the complainant that on 14.9.2002, at about 4 p.m., Jagjit Singh (PW-8) met her at bus stand Kharar and told that on 29.8.2002 at about 9.00 a.m., while coming to his village from Chamkaur Sahib and on reaching near bridge of Bhakra Canal of village Ramgarh, he saw Harvinder Singh on a scooter without number going towards the side of bank of the canal with Rahul on the scooter in school uniform. It was further told by Jagjit Singh that on the same day at about 10 a.m. when he was standing at Morinda Kainor Chowk near lights, then he saw only Harvinder Singh coming and Jagjit Singh inquired about Rahul. Harvinder Singh appellant told Jagjit Singh that he had left Rahul at his house in Crl.Appeal No.890 DB of 2004 [3] village Oind. The complainant after coming to her house at Mundi Kharar, narrated all details to her husband, on which Harvinder Singh accused got perplexed and started weeping and confessed before the complainant that Rahul was thrown in the Bhakra canal by him in order to get amount of insurance from the Municipal Committee. Complainant told the police that Harvinder Singh had killed her son out of greed of money. On the basis of statement of complainant (Ex.PH), a formal FIR Exhibit PH/3 was recorded by ASI Kulwant Singh in Police Station Kharar. Thereafter, Kehar Singh SI/ SHO along with Om Preeti complainant and other police officials reached at house No. 17, Ward No.3, Mundi Kharar and prepared rough site plan Ex.PQ. The SHO also recorded the statements of Gurdev Singh, Jagjit Singh and Constable Shingara Singh.
On 15.9.2002, the SI/SHO searched for accused and the dead- body of Rahul. On 17.9.2002, SI Khehar Singh was present in the police station where Prem Singh (PW-4) and Nanak Singh (PW-6) Ex-Sarpanch produced accused Harvinder Singh before the Thanedar and he was formally arrested. Grounds of arrest memo Ex.PG was prepared which was signed by the accused and attested by the PWs. The personal search memo Ex.PF was also prepared which was signed by the accused and attested by PWs. Thereafter, the accused was interrogated in the presence of ASI Balkar Singh, Nanak Singh and Prem Singh. Harvinder Singh accused made a disclosure statement that on 29.8.2002 he had thrown Rahul in Bhakra canal near bridge of Ramgarh along with school bag and committed his murder. It was further disclosed by the accused that he had kept concealed the tiffin of Rahul near cremation ground under the shrubs from where it could be recovered. The disclosure statement Ex.PC was reduced Crl.Appeal No.890 DB of 2004 [4] into writing which was signed by the accused and was got attested from PWs and on the basis of his disclosure statement, the tiffin Ex.P1 was got recovered and was taken into possession vide recovery memo Ex.PD. The Thanedar prepared rough site plan Ex.PR of the place of recovery. The case property was deposited with MHC Kharar. The scooter, mark Bajaj Chetak without number along with its papers were taken into possession on 19.9.2002 vide recovery memo Ex.PL. The statements of prosecution witnesses were recorded. On completion of the investigation, the accused was challaned for offence under Sections 302 /201 IPC and challan was put in the Court of Sub Divisional Judicial Magistrate, Kharar, who after supplying copies of the challan to the accused under Section 207 Cr.P.C, committed the case to the Court of Session Judge, Ropar to face trial vide order dated 29.10.2002.
The accused was charge-sheeted under Sections 302/201 IPC to which he pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as many as 16 witnesses. Swaran Kaur (PW-1), Gurdev Singh (PW-2), Harbax Singh (PW-3), Prem Singh (PW-4), Inderjit Singh (PW-5), Nanak Singh (PW-6), Om Preeti complainant (PW-7), Jagjit Singh (PW-8), Constable Jagdeep Singh (PW-9), Gian Singh (PW-10), ASI Balkar Singh (PW-11), ASI Harbhajan Singh (PW-12), HC Sikandar Singh (PW-13), M.H.C.Randhir Singh (PW-14), Balwant Singh (PW-15) and Inspector Kehar Singh (PW16).
On closure of the prosecution evidence, statement of accused under Section 313 Cr.P.C was recorded and all the incriminating circumstances appearing in the prosecution evidence were put to the Crl.Appeal No.890 DB of 2004 [5] accused who denied the allegations and pleaded innocence. The accused did not lead any evidence in defence.
After hearing arguments of both the parties, the trial Court convicted and sentenced the accused as mentioned above.
Mr. Sanjeev Manhas, learned counsel for the appellant, argued that there are several contradictions and discrepancies in the statements of the witnesses. As per statement of Om Preeti complainant, deceased Rahul was taken to the school at 7.50 a.m. by accused Harvinder Singh and he came back at 8.00 a.m. after leaving Rahul at the school. After that, Harvinder Singh dropped the complainant Om Preeti to her office. As per statement of Jagjit Singh ( PW-8), who is witness of the last scene, Harvinder Singh was seen at 9.00 a.m. at Bhakra canal along with Rahul who was in school uniform with a school bag and after that the accused was seen at Morinda chowk at 10.00 a.m. The prosecution has not explained as to how this time gap of one hour was spent by the accused, which makes the prosecution case doubtful.
Mr.Manhas further argued that the appellant has been convicted on the basis of last scene evidence and extra-judicial confession made before Prem Singh (PW-4) and Nanak Singh (PW-6) and on the basis of disclosure statement, the recovery of tiffin was made. He argued that the prosecution has changed the motive. The accused was not beneficiary of the policy of the Insurance. The conduct of accused was bonafide as he had made all genuine efforts to search for his child and even award of some cash amount was announced through pamphlet to be paid to the person giving any clue with regard to his son Rahul.
It was further contended by the learned counsel that as per Crl.Appeal No.890 DB of 2004 [6] statement of complainant, the accused was arrested after 4-5 days of the report, whereas as per prosecution story, the accused was arrested on 17.9.2002 and on the basis of disclosure statement made, recovery of tiffin was effected. Moreover, the tiffin was not kept in a sealed cover and it was in open condition and no name of Rahul was inscribed on the tiffin. The tiffin recovered on the basis of disclosure statement was not identified by the accused-appellant.
It was further contended by the learned counsel that the dead- body of Rahul has still not been recovered and the accused has been convicted only on the basis of suspicion. He argued that the present case is based on circumstantial evidence and the circumstances from which the conclusion of guilt is drawn, have not been fully established and are not conclusive in nature. Moreover, the circumstances are not complete and there are gaps left in the chain of evidence. There are many contradictions and inconsistencies in the statements of witnesses. There is no medical evidence to suggest that the accused had committed murder of Rahul. The trial Court has relied on the circumstantial evidence which is a weak type of evidence and the recovery of tiffin by the accused after a considerable lapse of time makes the story suspicious.
We have heard arguments of learned counsel for the parties and have very carefully scanned the entire evidence and other documents on record.
The case of the prosecution mainly based on last scene evidence, circumstantial evidence and recovery of tiffin on the basis of disclosure statement of accused Harvinder Singh.
As per statement of Om Preeti, complainant ( PW-7), she used Crl.Appeal No.890 DB of 2004 [7] to go to School to leave her son and on 29th August, 2002, her husband Harvinder Singh accused told her that he was to leave Rahul to the School. Harvinder Singh went to School to leave Rahul at his School along with school bag and tiffin at about 8.00 a.m. She further stated that Jagjit Singh told her that on 29th August, 2002, at about 9.00 a.m., while he was going to his village from Chamkor Sahib on his scooter and on reaching at the bridge of Bhakra Canal at village Ramgarh, accused Harvinder Singh met him while turning from canal bridge towards canal embankment on scooter without number and Rahul was standing on the scooter on its front side and was in school uniform.
Jagjit Singh (PW-8) stated that when he reached near bridge of the Bhakra Canal of village Ramgarh, he saw accused Harvinder Singh on a white scooter and Rahul was with him but while coming from the side of Morinda, Rahul was not with the accused. Jagjit Singh specifically asked Harvinder Singh regarding Rahul and it was stated by the accused that he had left Rahul in his village Oind. This version of the prosecution has not been supported by the statement of Gurdev Singh (PW-2) to the effect that he saw Harvinder Singh accused taking Rahul to the school in school uniform on a scooter without number. Prem Singh (PW-4) before whom the accused made a confessional statement, has stated that a blunder had been committed by him and due to greed of money, he had committed the murder of Rahul. It was further stated by Prem Singh (PW-4) that accused Harvinder Singh has also confessed before him that the child was holding a tiffin with him and the same was hidden in the bushes near Tahli tree in the cremation ground of village Khanpur on Morinda Road. The tiffin was also recovered on the basis of his disclosure statement made before Prem Singh Crl.Appeal No.890 DB of 2004 [8] (PW-4).
Swaran Kaur (PW-1) Principal of Dashmesh Public High Sachool,Mundi Kharar, has stated that on 29th August, 2002, Rahul did not attend the school. It has also come in the evidence of Harbax Singh (PW-3) that on the death of earlier husband of Om Preeti, an amount of Rs.15,000/- was deposited in FDR in the name of Rahul who was minor at the time of death of his father Dharampal, the earlier husband of Om Preeti.
The case of the prosecution is solely based on circumstantial evidence. If all the circumstances on the basis of statements of prosecution witnesses are taken into consideration, the story is complete and each chain of circumstances is connected with each other and no link is missing. Rahul was taken to the school by the accused in the morning of 29th August, 2002, who was seen by Gurdev Singh PW-2 while Rahul was being taken on a scooter without number by Harvinder Singh. Rahul was in his school uniform carrying a bag and tiffin. Further the accused along with Rahul was seen by Jagjit Singh (PW-8) on a canal bridge but after some time the accused was seen all alone and Rahul was not with him. This fact has further been corroborated by the statement of Swaran Kaur (PW-1) Principal who has specifically deposed that Rahul did not attend the school on that day. At about 4.00 p.m. complainant Om Preeti and the accused went to the school and found that Rahul was not there. The peon of the school also stated that on that day, Rahul did not attend the school. When Rahul was not found in the school, the complainant Om Preeti recorded the DDR in police station without naming the accused and it was simply stated that her child was missing. Only after knowing from Jagjit Singh that he saw accused Harvinder Singh with Rahul while going and coming back all Crl.Appeal No.890 DB of 2004 [9] alone near the bridge, she got suspicious and this suspicion was told to the police after 4-5 days. Thereafter, the accused was taken into custody by the police. It is also clear from the statement of the complainant Om Preeti that the accused confessed before her that he had killed Rahul as he wanted his own child from her. The further chain of the prosecution story is linked with the recovery of tiffin on which the name of Rahul deceased was engraved in Punjabi. The Tiffin was given by the complainant to Rahul while going to school. This fact has been proved by the statements of Prem Singh (PW4), Nanak Singh (PW6), and Jagjit Singh (PW8).
The motive for the commission of the offence has fully been proved by the prosecution. According to complainant Om Preeti, life of her son was insured with Life Insurance Corporation of India for Rs.50,000/- by Municipal Committee, Kharar. In order to prove this fact, the prosecution has also examined Harbax Singh (PW-3) who deposed that Dharampal, earlier husband of Om Preeti, was employed as a Class -IV employee in Municipal Committee, Kharar and he died on 27th June, 2000. As per decision of the Lok Adalat, an amount of Rs.15,000/- was deposited in FDR in the name of Rahul who was minor at that time. The accused has not produced any evidence in support of his defence, except his statement under Section 313 Cr.P.C, wherein he has stated that it is a case of false implication.
The Hon'ble Apex Court in Padala Veera Reddy v. State of A.P. 1990(2) RCR(Criminal) 26 : (AIR 1990 SC 79), has laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
"(1) the circumstances from which an inference of guilt is Crl.Appeal No.890 DB of 2004 [10] sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
The Hon'ble Supreme Court in Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh AIR 1952 SC 343 has observed thus :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with Crl.Appeal No.890 DB of 2004 [11] 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."
Hon'ble the Apex Court in Chattar Singh and another Vs. State of Haryana 2008 (4) RCR (Criminal) 133 has observed as under:-
"An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra- judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After Crl.Appeal No.890 DB of 2004 [12] subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
In view of the facts and the law position as discussed above, we are of the view that the present case is based on circumstantial evidence and chain of circumstances is complete on the basis of statements of the prosecution witnesses. No link evidence is missing. Rahul was taken by the accused- appellant from the house on 29th August, 2002 and he was seen by the landlord Gurdev Singh PW-2 while going on scooter along with bag and tiffin and was also seen by Jagjit Singh (PW-8) on canal bridge. The appellant has also admitted in his disclosure statement that he had committed the murder of Rahul and recovery of the tiffin was made on the the basis of disclosure statement. The prosecution has fully proved its case against the accused beyond any reasonable doubt and the trial Court has rightly convicted and sentenced the accused -appellant on the basis of evidence which have been proved beyond reasonable doubt.
For the reasons recorded, we do not find any legal infirmity in the judgment of conviction and order of sentence of the trial Court, which requires any interference.
Accordingly, the appeal is dismissed. The judgment of conviction and order of sentence dated 17.8.2004 passed by Sessions Judge, Ropar, are upheld.
( DAYA CHAUDHARY) JUDGE (SATISH KUMAR MITTAL) JUDGE March 04, 2009 raghav