Punjab-Haryana High Court
Surender @ Kala vs State Of Haryana on 5 November, 2014
Author: Harinder Singh Sidhu
Bench: Ashutosh Mohunta, Harinder Singh Sidhu
Crl. Appeal No.D-1017-DB of 2010
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1- Crl.Appeal No.D-1017-DB of 2010(O&M)
Surender @ Kala ... Appellant
Versus
State of Haryana .... Respondent
AND
2- Crl.Appeal No.D-1021-DB of 2010(O&M)
Ajmer ... Appellant
Versus
State of Haryana ... Respondents
Date of Decision: 05.11.2014
CORAM: HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA,
ACTING CHIEF JUSTICE
HON'BLE MR.JUSTICE HARINDER SINGH SIDHU
1. Whether Reporters of Local Newspapers 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: Ms.Baljit Mann, Advocate
for Surender @ Kala, appellant.
Mr.Sanjay Vasisth, Advocate
for Ajmer, appellant.
DINESH KUMAR
2014.11.12 13:45
I attest to the accuracy and
integrity of this document
Chandigarh
Crl. Appeal No.D-1017-DB of 2010
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Ms.Shalini Attri, Deputy Advocate General, Haryana.
Mr.R.N. Lohan, Advocate for the complainant.
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HARINDER SINGH SIDHU, J.
This order shall dispose of Criminal Appeal No.D- 1017-DB of 2010 filed by Surender @ Kala, appellant- accused and Criminal Appeal No.D-1021-DB of 2010 filed by Ajmer, appellant against the judgment of conviction dated 04.10.2010 and the order of sentence dated 07.10.2010 passed by learned Additional Sessions Judge, Sonepat (for short learned trial court ) vide which they were convicted and sentenced as under:-
Name of Offence u/s Imprisonment
convicts
Surender @ 302 IPC Imprisonment for Life. Fine
Kala Rs.5000/- and in default thereof
to undergo imprisonment for
three months.
201 IPC RI for 03 years. Fine Rs.1000/-
and in default thereof to undergo
imprisonment for one month.
Ajmer 302 IPC Imprisonment for Life. Fine
Rs.5000/- and in default thereof
to undergo imprisonment for
three months.
201 IPC RI for 03 years. Fine Rs.1000/-
and in default thereof to undergo
imprisonment for one month.
It was specifically ordered that both the sentences shall DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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run concurrently.
Amit and Smt. Neelam, co-accused of the present appellants were acquitted of all the charges by learned trial court.
The case was registered on the statement of co-accused Smt. Neelam wife of Bijender Singh, deceased. In brief, in her statement (Ex.PC) she stated that on the intervening night of 7/8.9.2006 she alongwith her husband namely Bijender, Panchayat Secretary was sleeping in their house, situated at Chopra Colony. At about 1.30 or 2.00 O'clock Bijender, her husband was abducted by three persons. They were having muffled faces. One more person was standing outside the gate. One person, out of them, was wearing ear pin and had long hair. Those persons also took away her Mangal Sutra, a mobile bearing No.9896460791 and an amount of Rs.1000/-, lying on the fridge. They smothered her husband with pillow and gave fists as well as legs blows in his abdomen and took him away. She had given an iron rod blow on the back of one of the assailants, who showed her a pistol and said, "do you not love your life". They also stated that patwari was also feeling the same pain and he was not required on earth. She requested that her husband be traced promptly.
Ranjit Singh, ASI after making endorsement Ex.PC/1 on the statement Ex.PC, made by Neelam, sent the same to the Police Station Gohana for registration of FIR. On the basis thereof, FIR No. 212 dated 8.9.2006 u/s 364/ 34 IPC, P.S. City Gohana Ex.PO/1 was DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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registered. ASI Ranjit Singh went and inspected the spot and prepared rough site plan Ex.PV/1. On 08.09.2006 Jagbir Singh, MHC produced before the Investigating Officer a sealed parcel, which was taken into possession vide recovery memo Ex.PV/2. Accused Surender was arrested and during investigation, he made disclosure statement Ex.PS/1 in the presence of HC Rajbir and Dalbir Singh. As per his disclosure statement his co-accused Ajmer had told him on 07.09.2006 that Bijender Secretary was to be murdered. He disclosed that he alongwith Ajmer came on motorcycle, whereas, Amit, brother of Ajmer, came in a maruti van ambulance and at about mid-night time they stood in Chopra Colony, whereas Amit, co-accused parked his maruti van ambulance in Sector-7 Gohana. Ajmer had talked to the wife of Bijender during intervening night of 7/8.9.2006. Thereafter, they had gone to the house of Bijender and committed his murder by throttling him and also by smothering him with a pillow. He further disclosed that one suitcase was brought from the house of Bijender under the impression that it may contain some cash, however, only clothes of Bijender, his bank pass book and GPF receipts were found in it. He further disclosed that he was having the suitcase, clothes and mobile phone of Ajmer and he got recovered the same which were taken into possession vide recovery memo Ex.PS/2. Surender, accused also got the place identified where the dead body of Bijender was set on fire. Memo Ex.PS/3 in this regard was prepared. Site plan of the place of recovery at the instance of Surender Ex.PV/3 was also DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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prepared.
On 10.09.2006 Rajender, brother of the deceased Bijender moved an application Ex.PD to the Station House Officer that his brother, who was Panchayat Secretary at Gohana, was kidnapped from his house and murdered by some three unknown persons and his dead body was charred in Bitoras (dung cake heaps) situated in village Kasanda. Neelam, wife of Bijender had got registered a case in Police Station City Gohana. Today, he had seen the call details of mobile Phone No. 9896080912 on the mobile phone of his brother Bijender. This mobile number belongs to Ajmer. He suspected that Ajmer, co-accused alongwith his companions had committed the murder of his brother Bijender in which Neelam wife of Bijender had also played a vital role. He suspected that at the instance of Neelam, his brother Bijender was murdered by Ajmer etc. as he (Ajmer) used to visit the house of his brother Bijender at Gohana several times. Ajmer had come to him once and told him that his brother Bijender had not returned his money. Neelam used to talk with Ajmer on telephone time and again. Neelam had misled the family as well as the police and got registered a false case. Neelam had got his brother Bijender murdered through Ajmer etc. Action be taken against Neelam and Ajmer etc. On the basis of the complaint Ex.PD, Daily Diary Report No.21 was recorded at P.S. City, Gohana. Kuldeep Singh, SI procured the call details of telephone No.9896080912, which was DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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issued on the ID of Naresh. On 13.09.2006 Ajmer, accused was arrested. During the course of investigation, Ajmer, suffered disclosure statement Ex.PO wherein he disclosed that he had fallen in love with Neelam and he alongwith Amit and Surender in conspiracy with Neelam had committed the murder of Bijender. He further disclosed that after committing murder of Bijender, his dead body was set on fire in the Bitoras of village Kasanda.
On 13.09.2006 Ajmer, accused was again interrogated and during interrogation, he made disclosure statement Ex.PE wherein, he had stated that he was on visiting terms with Bijender deceased and had an account of some loan with him, due to which a dispute had arisen between them. He further disclosed that he had joined his brother Amit and Surender @ Kala to commit murder of Bijender. He further disclosed that on 07.09.2006 he alongwith Surender had come on motorcycle, whereas, Amit brought Maruti van bearing registration No. HR-42-5000. He further disclosed that at about 1.30 am in the intervening night of 7/8.09.2006 he alongwith Surender entered the house of Bijender, whereas, Amit remained in his van outside. He further disclosed that he alongwith Surender committed murder of Bijender at his house. Thereafter, he had made calls to Amit to bring the van and they dumped the dead body in the same and took a briefcase from the house. The dead body of Bijender was set on fire in Bitoras situated in village Kasanda. Thereafter, he took away the GPF receipt, mobile and pass book of DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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Bijender lying in the briefcase. These articles were got recovered and taken into possession vide recovery memo Ex.PF.
On 13.09.2006 Neelam, accused was also arrested. During interrogation, she suffered a disclosure statement Ex.PU, vide which she confessed her guilt i.e. she had committed murder of her husband Bijender with the help of Ajmer, Surender and Amit and also disclosed that she had registered a false case with the police.
On 15.09.2006 Amit, accused was arrested in this case and on interrogation, he made disclosure statement Ex.PU/4, vide which he confessed his guilt and also deposed about the concealment of Maruti van bearing No. HR-42-5000 and mobile Phone No. 9896080357. On 16.09.2006 during the course of interrogation he suffered disclosure statement Ex.PJ/1 vide which he disclosed that his brother Ajmer and Surender told him that Bijender Secretary was to be murdered. He brought the Maruti van and remained stationed at the crossing of Sector-7, whereas Ajmer and Surender went in the house of Bijender. When he received a telephonic call from Ajmer on his mobile telephone at about 1.30 am, he took his van to the house of Bijender and he alongwith Ajmer and Surender dumped the dead body of Bijender in the van and set the same on fire in the bitoras of village Kasanda. Pursuant to the disclosure statement, Maruti van bearing registration No.HR-42-5000 and mobile phone make Nokia- 3300 were got recovered, which were taken into possession vide memo Ex.PJ. Rough site plans Ex.PU/1 and DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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Ex.PU/2 were got prepared.
On 27.09.2006 Ranjit SI moved an application before learned Sub Divisional Judicial Magistrate, Gohana for recording the statement under section 164 Cr.P.C. of Arun son of the deceased as well as Neelam, accused. Before recording his statement the Ld. SDJM posed certain questions to Arun and concluded that the child possessed good mental understanding and is a competent witness. His statement Ex.PA was recorded on 27.09.2006. He stated that on 07.09.2006 during the night he alongwith his two brothers, father and mother was sleeping in verandah of their house. Suddenly, he heard shrieks of his father, on which he got up and saw the accused Ajmer, alongwith another boy who was younger than Ajmer. Ajmer was pressing the neck of his father with a pillow, whereas, the other person was holding the feet of his father. His father was crying. His mother was also standing there. He further stated that he caught hold of the back of accused Ajmer and tried to rescue his father, but Ajmer gave him a leg blow due to which he was frightened. He stated that he knew Ajmer as he used to come to their house earlier. His mother asked him to go into the room of Chakki with his brother Varun who had also got up saying that otherwise those persons would kill them. Then, he and his brother Varun went inside the room where Chakki was lying. His mother intentionally threw her Dupatta on the cot and took them in the room where Chakki was lying. She told them that she would call their uncle (tau) on mobile. DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh
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In response to a question he stated that mobile phone belonged to his mother and she used to keep it by the side of the cot while sleeping. Mobile phone of his father was missing at that time. He stated that his mother did not come back for half an hour and when they asked her where she had gone, she told them that she had hidden herself in the room of buffalo due to fear. He further stated that when he asked his mother to take their father to doctor, his mother stated that those persons had taken away his father and they would leave him on beating him after some time. He further stated that he searched for his father in the entire house but he was not found there. His mother wiped the lobby with cloth. When he asked his mother as to why she was doing so, she replied that his uncle would come in the morning and she shall find no time for wiping and the house would seem dirty. He further stated that he alongwith his two brothers and mother went to the house of a neighbour the name of whose son is Satender. His mother narrated to them the whole incident that his papa had been abducted by some unknown persons. After 15/20 minutes his tau came there. Before that his maternal uncle (Nana) who lives in Adarsh Nagar also came there as he had been called through the phone by his mother. He stated that accused Ajmer and his accomplice had taken the mobile phone, Mangal Sutra of his mother and Rs.1000/- of his father with them and this fact was disclosed to him by his mother. He stated that he was afraid of his mother and he would never go with her. DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh
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On conclusion of investigation, report under section 173 of the Code of Criminal Procedure was prepared against four accused for the offences punishable under sections 302, 201, 120-B IPC and submitted to the Ilaqa Magistrate, who committed the same to the Court of Sessions for trial on 19.11.2006.
Charges under Sections 302 and 201 read with section 34 IPC and 120-B IPC were framed against all the four accused and read over and explained to them. They pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined 24 witnesses. Their evidence in brief is as under:-
PW-1 Arun Kumar, was aged about 10 years. The learned trial court recorded his statement in Court on 26.07.2007. Before recording the statement, the Ld. Trial Judge posed him some questions and was satisfied that he was able to give rational answers to questions. In his statement Arun deposed that on the intervening night of 7/8.09.2006 he alongwith his brothers and mother was sleeping in the house, whereas his father Bijender was sleeping in the verandah on a separate cot. He along with his brother was on one cot, his mother along with another brother of his was sleeping on a separate cot. On hearing the shrieks of his father Bijender, he got up and saw that Ajmer accused was pressing the face of his father with a pillow, whereas, Surender accused had caught hold of his father's legs and was also giving fist blows to his father. He DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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identified Surender and Ajmer, accused present in the Court. He stated that he knew Ajmer as he had seen him meeting his father previously in the market. He stated that his father and Ajmer had some account outstanding between them. He stated that he tried to separate his father from the clutches of the accused and caught hold of legs of Surender and tried to drag him. However, his mother had tried to hit both the accused but he could not see what his mother had been holding in her hands. His mother also tried to save his father from the clutches of Surender and Ajmer, but they threatened to kill her in case she intervened and also stated that they had to settle monetary account with his father Bijender. Thereafter, his mother took him and his two brothers to the room where grinder was installed. They came back after 4-5 minutes to the verandah of the house and saw Ajmer and Surender accused putting his father in a van on which blue light was installed. Thereafter, the accused took away his father in that van. That van was being driven by another person whom he could not see. His mother had tried to rescue his father but they threatened to kill her. He further stated that they narrated the whole incident to their neighbour Satender and from his house had informed Rajender, their uncle and maternal grandfather residing in Adarsh Nagar, Gohana. Thereafter, they had reported the matter to the police after arrival of his Tau Rajender and maternal grandfather. He stated that he did not know from where the dead body of his father was recovered later on. This child (PW1) also stated that DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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his mother had not done anything to help the accused Ajmer and Surender, rather, she had tried to save his father from the clutches of the accused. Upon his making this statement he was declared hostile. During cross-examination he admitted that he had made the statement Ex.PA in the court of learned Sub Divisional Judicial Magistrate, Gohana on 27.09.2006. He stated that the portion regarding his mother in the statement had been got recorded by him at the instance of the police.
PW-2 Rajender, brother of the deceased, deposed that the dead body of Bijender was recovered in the area of village Kasanda in semi burnt condition from the Bitoras. He further stated that Smt. Neelam had got registered a case by making complaint Ex.PC and the dead body of Bijender was identified by him. He proved his complaint Ex.PD. He stated that Arun Kumar, his nephew told him that Bijender had been murdered by Ajmer and his accomplice. Rajender stated that he also suspected the hand of Neelam in that murder. He stated that even Arun Kumar (PW1) had briefed him that Neelam had no role to play in the murder of Bijender. Rajender stated that on 13.09.2006 in his presence, Ajmer accused suffered disclosure statement Ex.PE, wherein, he had disclosed about committing the murder of Bijender and taking away his dead body in the van brought by Amit, co-accused and setting the same on fire in the "Bitora" of village Kasanda. He further stated that pursuant to the disclosure statement made by accused Ajmer, mobile phone, bank DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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passbook and GPF receipts were taken into possession vide recovery memo Ex.PF by the police. He denied that Neelam, accused was hand in glove with Ajmer, Surender and Amit in committing the murder of Bijender. On this statement, he was declared hostile and during the course of cross-examination, he stated that the police had shown him the call details of mobile phone No.9896080912 belonging to Ajmer, accused which were made on mobile number of his brother Bijender. After seeing the call details, it was confirmed that Ajmer had committed the murder of his brother Bijender with the help of his companion. He stated that he had not suspected the hand of Smt. Neelam, wife of Bijender in the occurrence. He admitted that he had mentioned the name of Smt. Neelam in his complaint Ex.PD on the basis of suspicion. He admitted as correct that accused Ajmer was on visiting terms with Bijender and visited his house. He also admitted that one Ajmer had told him that his brother Bijender was not returning his money.
PW-3 Mehar Singh deposed that on 16.09.2006 in his presence, Amit, accused during interrogation suffered disclosure statement that on 07.09.2006 Ajmer and Surender had committed the murder of Bijender, Panchayat Secretary and he had taken the Maurti van to the house of the deceased at around 1.30 a.m., in which the dead body was taken to village Kasanda and there the same was set on fire in Bitora. He further deposed that Amit had also disclosed that he had parked the Maruti van in the garage of Sita Hospital, Ganaur DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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and his mobile phone was lying under the seat of the said van and as per the disclosure statement mobile phone and Maruti van were recovered which were taken into possession vide memo Ex.PJ. He also proved recovery memo Ex.P-4, vide which mobile was taken into possession.
PW-4 Balram stated that on 08.09.2006 he alongwith Rajender as well as Neelam had identified the dead body of Bijender, deceased.
PW-5 Rajesh Kumar Constable proved scaled site plan Ex.PK, which was prepared on the demarcation of Arun Kumar.
PW-6 Dr.Vijay Pal Khanagwal, who conducted the post mortem examination on the dead body of Bijender on 08.09.2006 at 2.30 p.m. proved post mortem report Ex.PL. He stated that the body was in charred state and wrapped in a dirty white plastic sack. Superficial deep burns were present all over the body. Superficial burns were present over the top and back of head, neck, posterior aspect of both upper extremities, whole of the back from shoulder region to lumber region, right gluteal region, whole of the anterior aspect of right leg and over remaining portion of the body, there were deep burns, whereas, the anterior half of right foot on its dorsal aspect and its sole were spared of burns. The body surface showed deposition of carbon particles all over and was blackened. The body was in pugilistic attitude and was emitting characteristic black flash (roasted meat) like odour. A few remnants of burnt pieces of clothes DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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were found to be stuck over the body at places. The right lower extremity comprising of the leg with foot was lying separate from rest of the body, which was in one segment. The sternum and the anterior ends of 2nd to 9th ribs on both sides were also burnt off. Through the defect over the front of chest where the sternum and the anterior end of the 2nd and 9th rib were missing(burnt off) the cooked up lungs and heart were lying exposed. The eyebrows, eye lashes, moustaches, beard, body and pubic hair were burnt off. Mouth was closed with tongue clinched between the teeth and its tip was darkened and cooked up lying 0.50 cms beyond the teeth. Both the pinna were also burnt off. The facial features were distorted and not identifiable. Superficial to deep burns were present over whole of the face.
The following injuries were found on the person of the deceased:-
"1. A contusion of the size 3x2 cms over the right side of neck situated four cms away from midlines and lying just below the right angle of mandible. On dissection the underlying neck structures including the muscle deep fascia and neurovascular tissue showed ecchymosed.
2. A contusion of size 4 x 2.5 cms over the the front of neck in its middle, lying 2.5 cms away from midline on the right and 1.5 cms away from midline on the left side. On dissection the underlying tissues including muscle deep facia laryngeal, tracheal, cricoids and thyroid cartilages were ecchymosed. DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh
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3. A contusion of 6x 4 cms size over the left side of neck situated 3.5 cms away from midline in tranverse plane at a level 1 cm inferior to the left angle of mandible. On dissection the underlying neck structures were ecchymosed."
The above injuries were ante mortem in nature. The burns noticed over the body were post mortem in nature as there was no line of redness, no cherry red discoloration of the tissues and no carbonaceous root particles in the lumen of larynx and trachea and the inner respiratory passages. The area involved by burns was about 99 per cent.
The cause of death was throttling (manual strangulation) which was ante mortem in nature However the burns noticed over the body were post mortem in nature. Death in this case was instantaneous and the probable time that elapsed between death and autopsy was within 24 hours. He stated that the FSL report Ex PD showed the presence of ethyl alcohol in the viscera of stomach, large intestine, liver, spleen and kidneys of the deceased. Kerosene residue was detected in the burnt pieces of clothes.
PW-7 Suresh Kumar tendered his affidavit Ex.PM in evidence, wherein, it has been stated that on 12.09.2006 MHC Jagbir Singh had given him one sealed parcel containing viscera and one sealed parcel containing clothes of the deceased which he had taken to Forensic Science Laboratory, Madhuban and after depositing the same in FSL Madhuban he had handed over a receipt to MHC Jagbir DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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Singh.
PW8- Naresh Kumar deposed that Ajmer had taken a mobile telephone connection No.9896080912 on his identity 18.07.2006. Ajmer had kept that mobile phone with him. He used to make calls to some lady.
PW-9 Jagdish Chander, Photographer proved photographs Ex.P5 to Ex.P9 and their negatives Ex.P10 to Ex.P14 respectively.
PW10- Samunder Singh, HC, deposed that on 13.09.2006 in his presence, S.I. Kuldeep Singh had taken into possession one motorcycle bearing registration No.HR-42-A-0424 from Ajmer, accused, vide recovery memo Ex.PN.
PW11- Hakam Singh, HC, stated that in his presence, Ajmer, accused had made disclosure statement Ex.PO confessing his guilt and stating that he had fallen in love with Smt. Neelam and thereafter joining Amit and Surender after having conspired with Smt. Neelam, committed the murder of Bijender. He further disclosed that they had set ablaze the dead body of Bijender in Bitoras of village Kasanda. He further deposed that Ajmer accused also disclosed that the mobile phone, on which he used to talk with Smt. Neelam, had been kept concealed by him at Dehradun in the house of his friend Harender Malik.
PW-12 Rajbir stated that his wife Smt. Bhateri is the Sarpanch of village Kasanda. On 08.09.2006 Dhan Ram informed him that Bitoras were on fire. He alongwith some other persons had DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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tried to extinguish the fire and had poured water with buckets and saw a dead body burning in the bitoras. They got frightened and returned. Thereafter, he informed the police in this regard. His statement Ex.PQ was recorded by the police. In cross-examination, he stated that Dhan Ram had informed him about the fire in the bitoras at about 5.30 a.m. The police had reached the spot at about 8.30 a.m. PW-13 Surjit Singh, SI, deposed that on 08.09.2006 he was posted as SI PS Sadar, Gohana. He had received telephonic call from Rajbir with regard to burning of a dead body in bitoras of village Kasanda. He reduced the same into writing in DDR No.4 Ex. PQ/1 and left for village Kasanda along with EHC Dharampal and Constable Sant Kumar. There he prepared inquest proceedings Ex.PL/1. He recorded the statement of Rajbir Ex.PO and after making endorsement Ex.PO/2 thereon sent it to the police station for registration of formal FIR which is Ex.PO/3. The dead body was identified by Smt. Neelam and Rajinder. From the spot, he lifted the mould of the marks of tyre of motorcycle and car. He dispatched the dead body for postmortem examination through Sant Kumar, Constable, who after the post mortem handed over to him one sealed parcel containing Viscera, parcel of clothes, one half burnt belt, one parcel of jar and sealed parcel of documents, which he had handed over to MHC Police Station Gohana.
PW14- Satyawan, ASI stated that on 09.09.2006 he had given the call details of Mobile Phone No.9896460791 and on DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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14.09.2006 of mobile Numbers 9896080912 and 9896080359 to Ranjit Singh, ASI. He identified the call details Ex.PW4/A and PW4/B as the ones that were handed over to Ranjit Singh, ASI by him.
PW-15 Jagbir Singh, ASI proved copy of DDR No.21 dated 10.09.2006 Ex.PR. He stated that he had recorded formal FIR Ex.PC/1 on the basis of ruqa Ex.PC. His statement was recorded by Ranjit Singh, ASI on 08.09.2006. Inquest report of Bijender, viscera, sealed parcel containing some burnt material, another sealed parcel containing some burnt clothes, burnt belt having seals of MS, three moulds of car tyre and motorcycle were handed over to him by Surjit Singh, SI, which he had sent to the Director, FSL Madhuban through Suresh Kumar, Constable, who after depositing the same, handed over a receipt to him.
PW-16 Rajbir, HC stated that on 19.09.2006 Ranjit Singh, ASI had interrogated Surender alias Kala, accused, who had firstly suffered a disclosure statement Ex.PS and again on 20.09.2006 the accused suffered another disclosure statement Ex.PS/1, confessing his guilt with regard to the murder of Bijender in connivance with Ajmer, Amit and Smt. Neelam. He further deposed that Surender, accused had got recovered a suitcase containing two pants, one red colour shirt, one grey colour shirt and one photograph which was identified by Balbir to be that of Bijender. These articles were taken into possession vide recovery memo Ex.PS/2. He further deposed that Surender, accused had also identified the place where dead DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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body of Bijender was burnt. He further proved Photograph Ex.P6, two pants Ex.P7 and P8, two shirts Ex.P9 and P10 respectively.
PW-17 Sant Kumar, Constable deposed that on 08.09.2006 he had got the autopsy done on the dead body of Bijender and the doctor had given him four sealed parcels alongwith sample specimen , which he handed over to Surjit Singh, SI.
PW18- Kuldeep Singh, SI, deposed that on 10.9.2006 he was posted in Police Station City Gohana as SHO. On that day Rajender had submitted complaint Ex.PD on the basis of which, DDR Ex.PR was recorded at Police Station City Gohana. He further deposed that he procured the call details of telephone No.9896080912. This phone had been issued in the name of Naresh who in his statement under Section 161 Cr.P.C revealed that Ajmer accused had taken his mobile telephone number on his ID and was using the same.
SI Kuldeep Singh further stated that he had arrested Ajmer accused on 13.9.2006 and took into possession motorcycle bearing registration No.HR-42-A/0424, vide recovery memo Ex.PN. He proved disclosure statements Ex.PO and Ex.PE of Ajmer. He also proved recovery memo Ex.PF, vide which mobile phone, pass book and GPF receipt were taken into possession.
Kuldeep Singh, SI also deposed about the arrest of Neelam, accused on 13.09.2006 and recording of her disclosure statement Ex.PU with regard to confession of her guilt of murder of DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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Bijender. On 15.09.2006 Amit, accused was arrested, who also suffered disclosure statement Ex.PU/4, vide which he confessed his guilt. Rough site plan Ex.PU/1 of the place from where Ajmer had got the recovery effected and rough site plan Ex.PU/2 from where Amit had got the recovery effected were prepared. After completion of investigation he prepared report under Section 173 Cr.P.C.
PW-19 Dharam Singh, ASI, proved DDR Ex.PQ/3 in evidence.
PW-20 Naresh Kumar, Constable, tendered his affidavit Ex.PV in evidence.
PW-21 Ram Rattan, SI stated that on 13.9.2006 he was posted as ASI in Police Station City, Gohana. On that day, he had joined the investigation of the case with SI Kuldeep Singh and in his presence, Neelam, accused had suffered disclosure Statement Ex.PU before SI Kuldeep Singh, vide which she confessed her guilt i.e. committing the murder of her husband Bijender with the help of Ajmer, Surender and Amit. She further disclosed that in order to mislead the police, she got registered a case with wrong facts. On 15.09.2006 Amit, accused also suffered a disclosure statement Ex.PU/4, vide which he had confessed his guilt. He further disclosed about the concealment of Maruti van as well as mobile phone.
PW-22 Ranjit Singh, SI deposed that on 08.09.2006 he was posted as ASI in Police Station, City Gohana. On that day Neelam had submitted her written complaint Ex.PC before him and he DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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after endorsing the same, sent it to police station City Gohana for registration of case and FIR Ex.PC/1 was registered by Jagbir Singh, HC. He had inspected the spot and prepared rough site plan Ex.PV/1.
He arrested Surender, accused, who on interrogation, had suffered disclosure statement Ex.PS before him, pursuant to which, he got recovered suitcase which was found containing two pants and two shirts and one photograph which was identified by Balbir to be of Bijender. He proved recovery memo Ex.PS/2, vide which articles were taken into possession, the suit case Ex.P-5, photograph Ex.P-6, pants and shirts Ex.P-7 to P-10 respectively.
PW-23 Sh.S.K. Khanduja, Addl. C.J.M., Jind, deposed that he had recorded the statement of Arun Ex.PA under Section 164 Cr.P.C., without any addition or omission on his part. He thereafter passed order Ex.PA/1 after recording the statement of Arun. He also proved formal questionnaire in this regard Ex.PA/2.
PW-24 Dhirender deposed that Neelam, his sister was married with Bijender. He stated that he never gave his mobile phone to her for use. He was declared hostile and cross-examined by the Public Prosecutor. He denied that he had given mobile phone No.9896460791 Make Nokia-1108 to Neelam.
Thereafter, evidence of the prosecution was closed by learned Public Prosecutor for the State vide separate statement dated 29.04.2010.
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On being examined under Section 313 Cr.P.C., accused denied the allegations levelled against them by the prosecution witnesses. In defence, Ajmer, accused pleaded that he had not committed any offence as alleged by the prosecution witnesses and was falsely involved in this case. He further pleaded that the alleged recovery was foisted upon him to strengthen the case of the prosecution.
Surender alias Kala, accused, in defence, pleaded that he had no concern with Neelam and Ajmer, accused. He had not committed the offence, as alleged. He further pleaded that a false case was registered upon him. The alleged recovery was foisted upon him to strengthen the case of the prosecution.
Amit Kumar, accused, in defence also denied the allegations and pleaded false implication.
Neelam, accused in defence, pleaded that she had been falsely involved in this case.
However, no evidence in defence was led by the accused. After hearing learned counsel for the parties and perusing the record, learned trial court convicted and sentenced Surender alias Kala and Ajmer, the accused, as referred to above. They were however acquitted of the charge under Section 120-B. Accused Amit and Smt. Neelam were acquitted of all the charges framed against them.
Learned Counsel for the accused Ajmer raised the DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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following arguments:
i. It was a case of blind murder. The appellant Ajmer was not named in the FIR. He was not even named in the statement of Rajender u/s 175 Cr.P.C. in inquest proceedings. His name was mentioned for the first time in the statement Ex. PD of Rajender recorded on 10.9.2006 and in the statement of Arun Kumar also recorded on 10.09.2006, wherein he named Ajmer as one of the two persons who was holding his father. This is clearly suggestive of an afterthought and false implication. ii. It has been stated by Arun Kumar PW-1 in his statement Ex.PA that after the incident they had gone to the house of their neighbour Satender and from there his mother had spoken on mobile phone to his tau Rajender and his maternal grand father, who thereafter came to the spot. However, Satender has not been examined.
iii. PW -1 Arun Kumar is a tutored witness. He is unreliable. Three statements of his were recorded. One statement Ex. DA was recorded u/s 161 Cr.P.C. on 10.9.2006 by SHO P.S. City Gohana. Thereafter, his statement Ex. PA under Section 164 Cr.P.C. was recorded on 27.9.2006 by Sub Divisional Judicial Magistrate Gohana. His statement in Court was recorded on 26.7.2007. In his first statement on 10.9.2006, which is sketchy he only mentions about accused Ajmer and one other person. In his second statement u/s 164 Cr.P.C. recorded on 27.9.2006 he DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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implicates his mother suggesting she was involved in the crime. He stated that he was afraid of his mother. But in his statement in Court on 26.7.2007 he completely exonerated his mother. iv. It is unsafe to convict on the basis of the sole testimony of a child witness.
v. It has not been credibly established that phone No.9896080912 belonged to and was being used by accused Ajmer. Statement of PW-8 Naresh does not inspire confidence. He has not explained as to why he allowed Ajmer to take the mobile phone connection on his name.
vi. The presence of ethyl alcohol in the viscera on the deceased indicates that the deceased had consumed alcohol before his death. The prosecution has not explained the presence of alcohol . It appears that death was not caused in the manner as alleged by the prosecution by pressing of a pillow. vii.The medical evidence does not corroborate the ocular version inasmuch as in the post-mortem report the cause of death is mentioned as throttling (manual strangulation) whereas PW-1 Arun Kumar had stated that he saw the appellant-accused pressing the face of his father with a pillow.
Learned counsel for accused-appellant Surender has additionally raised the following arguments:-
i. that Surender alias Kala accused has not been named by PW-1 Arun Kumar even in his statement Ex.DA DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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recorded on 10.09.2006, nor in his statement under section 164 Cr.P.C. Ex.PA recorded on 27.09.2006. Similarly, Rajender PW-2 did not name Surender alias Kala in his statement Ex.PD recorded on 10.09.2006. It is only for the first time that the appellant has been named by PW-1 in his statement in Court on 26.07.2007. It has not been explained as to how PW-1 could identify accused Surender in Court when he had no previous acquaintance with him.
ii. Accused Surender alias Kala was arrested on 19.06.2006. No test identification parade was held. iii. There was no motive on the part of the accused to cause the death of Bijender, deceased.
iv. There is no independent witness of the recovery effected pursuant to the alleged disclosure statement of the accused.
v. No mobile phone contact between accused Surender alias Kala and accused Ajmer has been established. On the other hand, learned State Counsel as also learned counsel for the complainant have stressed that the statement of PW-1 at various stages, during investigation, before the Sub Divisional Judicial Magistrate and before the Court are credible and trust worthy. Both the Sub Divisional Judicial Magistrate and the trial Court before recording his statements posed questions to him to assess his DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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capacity to understand and convey the facts and it was only after they were fully satisfied that they recorded his statements. Reference was made to the statement of Arun Kumar recorded before Sub Divisional Judicial Magistrate wherein he states that he knew Ajmer as he used to come to their house earlier also. The other boy accompanying him was younger than Ajmer. Accused Ajmer is aged 30 years and Surender alias Kala is aged 24 years and this corroborates the statement of Arun Kumar, PW-1. This witness (PW-1) had seen both the accused committing the offence. He knew Ajmer from his earlier visits to their house and he easily identified Surender alias Kala in Court as the person who accompanied Ajmer, accused. Regarding the argument relating to tutoring of Arun Kumar, PW-1, learned counsel have argued that no such suggestion was made either in his cross-examination or that of PW Rajender.
We have heard learned counsel for the parties and have gone through the record.
The case is primarily based on the eye witness account of PW-1 Arun Kumar. Hence, the entire thrust of the argument of the learned counsel for the accused-appellants has been to discredit and assail the testimony of PW-1. But having gone through the statements of PW-1 at various stages of the case, we feel that his testimony is credible and trust worthy. It does not reflect any tutoring. In his statement on 10.09.2006, he explained that on the intervening night of 07/08.09.2006 all the family members were sleeping in the DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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house. On hearing noise, he got up and saw that his father had been nabbed by two persons on the cot. They were giving fists blows to him and had pressed a pillow over his mouth. One of them was Ajmer, whom he knew as he used to visit his father at home. When he tried to get his father released, his mother took him to another room where Chakki was installed. He categorically stated that his father had been murdered by these persons. In his statement recorded under section 164 Cr.P.C. by the Sub Divisional Judicial Magistrate on 27.09.2006, he narrated about the incident in detail in response to the questions of learned Sub Divisional Judicial Magistrate. He mentioned about Ajmer and stated that the second person with him was younger than Ajmer. Ajmer was pressing the neck of his father with a pillow, while, the other boy was holding the legs of his father. He tried to get his father released, but was given a leg blow by Ajmer. Then, his mother asked him and his brother, who had also awoken, to go to other room, where Chakki was installed or else the assailants of his father would kill them as well. The tenor of his answers seemed to implicate his mother with the crime. However, in his statement in court on 26.07.2007 his narration of the incident was consistent with his earlier version regarding the same except that he categorically stated that his mother hit the accused and tried to save his father. He identified Ajmer and Surender accused present in the Court. Accused Ajmer was the one who was pressing the face of his father with a pillow and accused Surender alias Kala DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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had caught hold of his father by his legs and was also giving fist blows to him. In his statement under section 164 Cr.P.C., he had mentioned about Ajmer, accused and had stated that the other boy accompanying him was younger than Ajmer. Accused Ajmer is aged 30 years and Surender alias Kala is aged 24 years and this fully corroborates the statement of Arun Kumar, PW-1. Arun Kumar, PW-1 had seen both the accused committing the offence. He knew Ajmer from his earlier visit to their house and he easily identified Surender alias Kala in Court as the person who accompanied Ajmer, accused. The core of all the three statements of Arun Kumar is the same that on the intervening night of 07/08.09.2006 while the entire family was asleep in their residence, accused Ajmer and Surender caused the death of his father by pressing a pillow over his mouth. This part of his statement remains unshaken and unassailed.
In these circumstances, the testimony of PW-1 Arun Kumar cannot also be rejected because no test identification parade was conducted.
Much stress has been laid by learned counsel for the appellants that it is unsafe to rely on the sole testimony of a child witness. However, we are convinced that the evidence of PW-1 Arun Kumar is credible and trust worthy and there is no reason to reject the same.
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recorded under section 175 Cr.P.C., it only needs to be noted that the information about the incident was given to Rajender by Neelam, accused and she had mentioned to him that Bijender was abducted by 4-5 young persons from her house forcibly after beating him. As Neelam accused was involved in the crime she obviously did not mention any names and only stated that Bijender had been abducted by 4-5 persons. At that stage when his statement was recorded under Section 175 Cr.P.C on 8.9.2006, Rajender did not know the names of the persons who had abducted his brother. It was only later, when he saw the call details of mobile phone number 9896080912 on the mobile phone of his brother Bijender and it came to his knowledge that this mobile belongs to Ajmer, he concluded that his brother had been murdered by Ajmer alongwith his companions and Neelam the wife of Bijender had played a role in the same. Thereafter, he got recorded his statement Ex.PG on 10.09.2006 in which he named Ajmer and Neelam wife of Bijender.
Further, there is no merit in the contention of learned counsel for the appellant that it has not been credibly established that phone No.9896080912 belonged to and was being used by accused Ajmer. PW-8 Naresh in his deposition has clearly stated that Ajmer had taken mobile phone connection bearing No.9896080912 on his identity on 18.07.2006. Ajmer had kept the mobile phone with him. He used to make calls to some lady. Except for a bald suggestion during cross-examination that Ajmer had not taken the said mobile DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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phone from Naresh on his identity, the cross-examination was not pressed further and it was not demonstrated that he was not stating the truth. Moreover, the said mobile was recovered pursuant to the disclosure statement of accused Ajmer.
There is also no merit in the arguments raised by learned counsel for the appellants that the medical evidence does not corroborate the ocular version, inasmuch as in the post-mortem report the cause of death is mentioned as throttling (manual strangulation) whereas PW-1 Arun Kumar had stated that he saw the appellant-accused pressing the face of his father with a pillow. PW-1 Arun Kumar had woken up on hearing the shrieks of his father and when he woke up he found that accused Ajmer was pressing the mouth of his father with a pillow. It is possible that initially the accused had manually strangulated the deceased and thereafter pressed a pillow against his mouth to ensure his death. In these circumstances,merely because PW-1 has not mentioned about the throttling of his father by the accused, it cannot be said that there is discrepancy between the ocular and the medical evidence. The evidence of PW-1 is categoric that when he woke up he saw accused Ajmer pressing the pillow against the mouth of his father and accused Surender holding his legs and giving him fist blows. The medical evidence clearly states that the cause of death of Bijender was throttling (manual strangulation). Further the fact that ethyl alcohol was found in his stomach and other organs only establishes that the DINESH KUMAR 2014.11.12 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.D-1017-DB of 2010
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manner disprove the prosecution case regarding the cause of his death. No suggestion was made during cross-examination of PW-6 Dr.Vijay Pal Khanagwal regarding this aspect.
The evidence in this case is that accused Ajmer had roped in his brother Amit and accused Surender to commit the murder of Bijender and then dispose of his dead body by burning the same at the Bitora of village Kasanda. The absence of proof of separate and independent motive on the part of the accused-appellant Surender can hardly have any affect on the prosecution case in the face of eye witness account of PW-1 Arun Kumar.
The fact that their neighbour Satender to whose house Arun Kumar and his mother had gone after the incident and to whom they had narrated the incident and from where they had made mobile phone calls to Rajender and maternal grandfather of Arun Kumar,was not examined is also no ground to disbelieve the prosecution version as the eye witness account of Arun Kumar is consistent and credible.
In view of above, we find no merit in the appeals. Dismissed.
(ASHUTOSH MOHUNTA) (HARINDER SINGH SIDHU)
ACTING CHIEF JUSTICE JUDGE
November 05, 2014
dinesh/gian
DINESH KUMAR
2014.11.12 13:45
I attest to the accuracy and
integrity of this document
Chandigarh