Punjab-Haryana High Court
Parmod Mandal And Another vs State Of Haryana on 20 April, 2011
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No.410-DB of 2009
Date of decision: April 20, 2011
Parmod Mandal and another
.. Appellants
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Bijender Dhankhar, Advocate for the appellants.
Mr. P.S. Punia, Addl. Advocate General, Haryana.
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A.N. Jindal, J The case relates to the sordid story of brutal murder of driver Puran Mal working on Tata Sumo No.HR34-A-2496 and snatching the said Tata Sumo at the hands of the accused-appellants (herein referred as, 'the accused') and Raju Mandal. On trial, vide judgment dated 16/17.3.2009, they were convicted and sentenced as under :-
U/s 302/34 IPC : Rigorous imprisonment for life and to pay fine of `5000/- each.
U/s 365/34 IPC : Rigorous imprisonment for three years and to pay fine of `1000/- each.
U/s 392/34 IPC : Rigorous imprisonment for three years and to pay fine of `1000/- each.
U/s 201/34 IPC : Rigorous imprisonment for one year and to pay fine of `1000/- each.
Shiv Kumar, a resident of Rewari, had owned Tata Sumo bearing registration NO.HR34-A-2496 over which he had kept Puran Mal deceased as driver. On 27.8.2005, Parmod Mandal who was acquainted with Shiv Kumar along with other accused came to the complainant for Criminal Appeal No.410-DB of 2009 -2- *** hiring the aforesaid Tata Sumo. The matter was settled at `5/- per kilometer and `100/- for the night for the driver. Accordingly, all the three accused namely Parmod Mandal, Shiv Nandan Mandal and Raju Mandal commenced their journey with the deceased at 6.30 A.M. However, the deceased did not come back to Rewari. On 31.8.2005, Ajay Gupta, an employee of United India Insurance Company Bhiwani, on receipt of the information from the Police Station Poria Hatt, Jharkhand delivered the information to the complainant about the recovery of the vehicle. However, in the meantime, since Puran Mal had not returned, they doubted that he must have been kidnapped by the accused, got registered a case under Section 365/34 IPC. It may further be noticed that after lodging the FIR at Police Station Model Town Rewari, Shiv Kumar set for the place where the Tata Sumo was taken into possession by the police. In the meantime, on the intimation given by the Chowkidar, the dead body of the deceased Puran Mal was taken into possession. However, before the complainant reached the police station Sono, the police had already buried his dead body due to its de-composition condition, therefore, he identified him from the white coloured pant, banian which he was bearing before he left with the accused and photo of Puran Mal which were also taken into possession by the police in his presence as well as in the presence of Surjeet. Thus, on completion of the investigation, challan was presented against the accused.
On commitment of the case, the accused were charged under Section 365/302/392/201/34 IPC, to which they pleaded not guilty and claimed trial.
The prosecution, in order to substantiate the charges against the accused, examined as many as 15 witnesses. Shiv Kumar (PW1) owner of Tata Sumo has specifically stated that he was the owner of Tata Sumo bearing registration No.HR34-A-2496 and he had employed Puran Mal as the driver in the said Tata Sumo being plied from Maharana Partap Chowk Taxi Stand, Rewari. On 27.8.2005, Parmod Mandal along with his co- accused Subodh Mandal, Shiv Nandan Mandal and Raju Mandal (since absconding) came along with Puran Mal for hiring Tata Sumo. After the bargain was settled, Puran Mal came at 6.30 a.m. and drove away Parmod Mandal, Shiv Nandan Mandal, Subodh Mandal and Raju Mandal in the said Criminal Appeal No.410-DB of 2009 -3- *** Tata Sumo. However, he did not return up to 31.8.2005 when he received message through Ajay Gupta of United India Insurance Company, Bhiwani that the Tata Sumo was impounded in Jharkhand with three accused. Thereafter, he moved an application Ex.PA in the Police Station Model Town, Rewari and also went to the Police Station Poria Hatt along with police officials. Then on his arrival police took the Tata Sumo into possession vide memo Ex.PB. He has further testified that on 7.9.2005, he reached the Police Station Sono where he identified the clothes of Puran Mal as referred to above which were also taken into possession. The accused also identified the place where they had thrown the dead body vide memos Ex.PC, Ex.PD and Ex.PE. He also proved the disclosure statements Ex.PF, Ex.PG and Ex.PH with regard to identification of the place of occurrence. The witnesses have stated that the facts as revealed by the accused were that after stopping the vehicle on the pretext that they wanted to answer the call of nature, they strangulated Puran Mal with the rope and threw him out of the vehicle. Thereafter, taking dagger from the rear portion of the vehicle with the help of Parmod Mandal and Raju Mandal, Shiv Nandan Mandal and Subodh Mandal inflicted dagger blow in the neck of Puran Mal. He also testified that after throwing Puran Mal by the side of road.
Hawa Singh (PW2) is a witness to the recovery of the clothes as well as photographs of his brother Puran Mal. He also identified the dead body of Puran Mal.
SI Rajender (PW3) is a witness regarding the arrest of the accused Raju Mandal, Shiv Nandan Mandal, Parmod Mandal and has also proved the disclosure statements made by these accused Ex.PF, Ex.PG and Ex.PH.
MHC Rohtash (PW4) and EHC Dharambir (PW5) are the formal witnesses.
Dr. Sayed Naushad Ahmad (PW6) who had conducted the post mortem examination on the dead body of Puran Mal, did not record his name for want of identification and recorded him as an unknown person. On conducting post mortem examination, he observed the following injuries on his person :-Criminal Appeal No.410-DB of 2009 -4-
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1. A plastic rope tied round the neck.
2. Neck cut from front deep to 3/4" of its girth cutting trachea carotied vessel and esophagus.
3. Injuries were ante mortem in nature. Caused by sharp cutting weapon and sufficient to cause death.
4. Time elapsed since death till holding of PM (postmortem) is within 36 hours.
He has also proved the postmortem report Ex.PL ASI Man Singh (PW7) who disclosed that accused persons had identified the place from where they had hired the taxi i.e. Tata Sumo on 27.5.2005.
Inspector Bharat Singh (PW8) has disclosed that on 31.8.2005,Shiv Kumar had moved an application on the basis of which formal FIR Ex.PA/1 was registered and he has also proved his own endorsement Ex.PA/2. He is also a witness to the effect that the accused had made demarcation of the place from where they had hired the aforesaid Tata Sumo. He also disclosed that on 20.11.2005 ASI Rajender Singh had come from Jharkhand and had produced shirt of the accused Parmod Mandal which was taken into possession. He has also stated that on 10.11.2005, Dharambir came from the Police Station Sono (Bihar) and produced the clothes of the deceased before him which were taken into possession vide memo Ex.PN.
ASI Prithi Singh (PW9) is the Investigating Officer. He has proved the entire investigation conducted by him from time to time.
Mukesh Charan Sinha (PW10) is the photographer. He has proved the photograph Ex.P1 of the dead body on the spot.
SI Kumar Abhinav (PW11) is the most material witness. He has stated that on 30.8.2005, Tiwari Chowkidar came to the police station and disclosed that a dead body was lying in the Batia forest valley towards the southern wing of the road. Thereafter he reached towards the spot and prepared the inquest Ex.PW11/A and sent the dead body for autopsy to Criminal Appeal No.410-DB of 2009 -5- *** Jamui Hospital. He also recorded the statement of Chowkidar Ex.PW11/B and got registered a formal FIR Ex.PW11/C. SI Hopna Tudo (PW12) is a witness to the arrest of the accused and recovery of Tata Sumo on the telephonic message of Ajay Gupta Manager of Insurance Company regarding the impounding of the vehicle in Police Station, Poria Hatt, Jharkhand. He reached the Police Station Poria Hatt, Jharkhand and came to know that driver of the vehicle had dis- appeared. In the meantime, the police of Rewari reached the place of occurrence, took the accused persons into custody, recorded confessional statements of both the accused persons and received relevant documents pertaining to the said case from the concerned police station.
SI Zulfikar Ali (PW13) is a witness to the recovery of Tata Sumo and arrest of the accused. He says that on receipt of secret information to the effect that in Shiv Naga Muhani village one metallic silver Tata Sumo was being plied by certain people without registration. He along with other police force reached the disclosed place where he apprehended the three accused and recovered Tata Sumo vide seizure memo Ex.PO. Since the accused could not produce the documents regarding Tata Sumo, the vehicle was impounded and FIR Ex.PQ was registered.
Mahender Singh (PW14) deposed that he is a witness to the recovery of white shirt from Parmod Mandal pursuant to his statement under Section 27 of the Evidence Act.
Ragvinder Singh (PW15) is a witness to the arrest and recovery of Tata Sumo.
Thereafter, the accused were examined under Section 313 Cr.P.C. in which they denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, they did not lead any evidence in defence.
The trial resulted into conviction. However, the trial against the remaining two accused namely Raju Mandal and Subodh Mandal remained in abeyance as they were absconding and declared as Proclaimed Offenders by the Illaqa Magistrate.
Arguments heard. Record perused.
Criminal Appeal No.410-DB of 2009 -6-*** While raising multi fold contentions to defend the appellants, Mr. Bijender Dhankhar, Advocate has urged that identity of the accused is not established; Shiv Kumar is not a reliable witness; shirt recovered at the instance of the accused does not connect him with the crime. In the absence of any direct evidence, mere recovery of Tata Sumo is hardly sufficient to prove the case against them beyond reasonable doubt. On the other hand, Mr. P.S. Punia, Additional Advocate General, Haryana, while controverting the arguments, urged that direct evidence against the robbers who with a motive to rob the vehicle knocked down the driver and took away the vehicle. The direct evidence is rarely available and the prosecution has to rely upon the circumstantial evidence. The voluminous circumstantial evidence is available on the record in order to connect them with the crime. The accused contacted Puran Mal deceased for hiring Tata Sumo to take them to Jharkhand who took them to Shiv Kumar owner of the vehicle. Since Parmod Mandal was working as an employee of Kisan Tyre, Bharawas Road, Rewari, therefore, Shiv Kumar (PW1) having acquaintance with him, agreed to send the vehicle. Shiv Kumar (PW1) has specifically stated that the accused had hired the vehicle for going to Jharkhand and on the next date they had taken Puran Mal as having been engaged the previous day. These facts have not been specifically denied by the accused and they have made blatant denial without any further explanation.
It has been further urged that accused were arrested along with the said Tata Sumo. The dead body bearing the wounds having been caused with sharp edged weapon was recovered. Parmod Mandal also got recovered the blood stained shirt which he was wearing at that time. The accused has not explained as to how they came in possession of the said Tata Sumo?; when Puran Mal was separated from them?; and how the shirt of Parmod Mandal became blood stained? The onus to rebut the positive evidence that the accused had taken the deceased along with Tata Sumo, lay heavily upon them and they were to explain as to how live body of Puran Mal was turned into corpus and how else he died if they are not responsible.
Shiv Kumar is a star witness who lodged specific complaint Ex.PA with the police while disclosing about the facts which he came across on 27.8.2005 as well as on 28.8.2005 at 6.30 p.m. His testimony Criminal Appeal No.410-DB of 2009 -7- *** could not be impeached or discredited by the accused in any manner. His credibility remains un-challenged. He agreed to send the driver as well as his vehicle on hire for the reason that he had acquaintance with Parmod Mandal since earlier. As such, the accused were not the strangers to him. He also identified the accused persons in the Court. The dead body so recovered by the police on 30.8.2005 has duly been identified by Hawa Singh. He has also identified the clothes worn by him.
The other relevant piece of evidence is the blood stained shirt (Ex.P4) of the accused Parmod Mandal which was got recovered by him pursuant to his statement under Section 27 of the Evidence Act. It appears that during the process of causing injuries to Puran Mal, the shirt (P4) worn by Parmod Mandal was smeared with blood, therefore, he concealed the same in order to make the evidence disappear. As such, this recovery of the shirt from the place nearby the occurrence assumes significance. Mahinder Singh (PW14) has also corroborated the said recovery of the shirt taken into possession by the police vide memo Ex.PS. The other relevant circumstance is the recovery of Tata Sumo from all the three accused Parmod Mandal, Shiv Nandan Mandal and Raju Mandal. We have the testimony of SI Zulfikar (PW13) to prove this fact. He has stated that an information was received at Police Station Poria Hatt, District Goda, Jharkhand that a vehicle Tata Sumo metallic silver colour was being plied by certain people in the area of Shiv Naga Muhani village without registration number. Then, he along with other police officials went to the spot and signalled the said Tata Sumo to stop when he came across it. He arrested the aforesaid accused and took Tata Sumo into possession vide seizure memo Ex.PO. The accused were admittedly not the owners of the said vehicle. They failed to explain as to how they came in possession of the said vehicle. Thus, in the absence of any evidence in this regard, it goes a long way to prove that the recovery of the Tata Sumo as well as the presence of the accused in the vehicle is a material and an important circumstance to connect the accused with the crime.
The recovery of the clothes of the deceased at the instance of the accused is also a circumstance which completes the chain and adds to connect the accused with the crime. It has been observed in case Pershadi Criminal Appeal No.410-DB of 2009 -8- *** vs. State of Uttar Pradesh, AIR 1957 SC 211 wherein it was observed that where clothes of the deceased were recovered from the place disclosed by the accused, then it is admissible circumstance against the accused persons and it was further observed that where the accused disclaimed all connections with the deceased, the court therefore, be justified in drawing an adverse inference from this against the accused in the circumstances of the case.
We do not find any merit in the contention raised by the learned counsel for the appellants that mere recoveries pursuant to the statements under Section 27 of the Evidence Act are of no consequence and such recoveries are hardly sufficient to connect the accused with the crime. In the instant case, the recovery of the shirt of the accused and the clothes of the deceased stand duly proved by the accused persons pursuant to their disclosure statements. The fact discovered consequent to the statements made under Section 27 of the Act was quite admissible and relevant to add to the circumstances against the accused. The confession made by the accused to the extent of the fact discovered is quite relevant. Similar observations were made by the Apex Court in case Panduran Kalu Patil vs. State of Maharashtra, 2002 (1) RCR (Criminal) 499 wherein it was observed as under :-
"3. The legal proposition adumbrated in Pulikuri Kottaya has been considered and tested by this Court, time and again, and on all such occasions this Court has only reiterated the said principle with approval (vide Jaffar Hussain Dastagir v. State of Maharashtra, 1969 (2) SCC 872 : AIR 1970 SC 1788 : 1983 (2) SCC 330; (1995) (4) SCC 392, Shamshul Kanwar v. State of U.P., 1995 (4) SCC 430 and State of Rajasthan v. Bhup Singh, 1997 (1) RCR (Crl.) 760 (SC) :
1997 (10) SCC 675 para 15 and in the last cited decision this Court while again re- affirming the ratio in Pulikuri Kottaya has said thus :-
"The ratio therein (Kottaya) has become locus classicus and even the lapse of half-a-century after its Criminal Appeal No.410-DB of 2009 -9- *** pronouncement has not eroded its forensic worth."
Even the recent decision in State of Maharashtra v. Damu 2000 (2) RCR (Criminal) 781 : 2000 (6) SCC 269 this Court followed Pulikuri Kottaya with approval. The fallacy committed by the Division Bench as per the impugned judgment is possibly on account of truncating the word "fact" in Section 27 of the Evidence Act from the adjoining word "discovered".
The essence of Section 27 is that it was enacted as a proviso to the two preceding sections (see Sec. 25 and 26) which imposed a complete ban on the admissibility of any confession made by an accused either to the police or to any one while the accused is in police custody. The object of making a provision in Section 27 was to permit a certain portion of the statement made by an accused to a police officer admissible in evidence whether or not such statement is confessional or non- confessional. Nonetheless the ban against admissibility would stand lifted if the statement distinctly related to a discovery of fact. A fact can be discovered by the police (investigating officer) pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of cause. Recovery of an object is only one such cause. Recovery, or even production of object by itself need not necessarily result in discovery of a fact. That is why Sir John Beaumont said in Pulikuri Kottaya that "it is fallacious to treat the fact discovered in the section as equivalent to the object produced". The following sentence of the learned law lord in the said decision, though terse, is eloquent in conveying the message highlighting the pith of the ratio.
"Information supplied by the person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of Criminal Appeal No.410-DB of 2009 -10- *** fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence the fact discovered is very relevant." (emphasis supplied)."
Similarly, we refute the argument raised by the learned counsel for the appellants that the recoveries having been effected from an open place accessible to all, therefore, the said recoveries are vitiated. In this case, the clothes of Puran Mal were recovered from bushes near the Pond and the blood stained shirt of Parmod Mandal was also concealed by him in the deserted area of jungle. The areas so described and situated at deserted places cannot be said to be accessible to the general public and such recoveries if made pursuant to the disclosure statement cannot be said to be vitiated. It has been observed in case State of Maharashtra v. Bharat Fakira Dhiwar, 2002 Crl. L. J. 218 that where the recovery of articles used in the commission of the offence was within the visibility of the others in the normal circumstances until they were disinterred, at the instance of the accused their hidden state had remained unhampered.
It may further be observed that in this case, accused has not made any plausible explanation much less explanation to the circumstances existing against him except that a mere denial which also adds to plug the missing link. Similar view was taken by the Apex Court in case Sate of Maharashtra vs. Damu 2000 (2) RCR (Criminal) 781 wherein the Apex Court while relying upon its earlier judgment delivered in case State of Maharashtra vs. Suresh 2000 (1) RCR (Criminal) 149 observed as under :-
"33. When A-2 Guruji was arrested and interrogated, he stated to PW-44- Investigating Officer regarding a "Kalash"
(pitcher) which was recovered by PW-44 Investigating Officer from the house of A-2 Guruji. What is significant about the recovery is that when chemical test was made on the pitcher, blood was found sticking on the outer side of the vessel. Of course, the chemical analyst could not determine the origin of Criminal Appeal No.410-DB of 2009 -11- *** the blood as it was disintegrated by that time. But the learned Judge of the High Court did not attach any value to the circumstance on that sole reason. At the first blush, the approach of the High Court may appear to be sound. But when we considered the answer which A-2 Guruji had given to the questions put on him under Section 313 of the Code regarding the said circumstance, he simply denied even the recovery of "Kalash" as stated by PW-44 Investigating Officer. When we know that there was blood on the pitcher it is for A-2 Guruji to explain how it was. But when he denied even the seizure of the pitcher, such a denial in this context, is not inconsequential. In another case, a similar denial was treated by this Court as sufficient to provide a "missing link" to the chain of circumstances. (State of Maharashtra v. Suresh, 2000 (1) RCR (Crl.) 149 : 2000 (1) SCC 471)."
It is also well settled that where there is a direct evidence of the last seen of the deceased in the company of the accused, then if the deceased is not found later, the onus lay heavily upon the companions to explain as to when he was separated and if not how his live body was turned into corpus. There is a direct evidence that these were the accused and none else who had hired Tata Sumo and had taken the deceased with them. It is not the case of the accused, if they ever separated themselves from the deceased, then it is for the accused to explain as to what led to the deceased dying in the state of injuries and these special facts being wholly within the personal knowledge of the accused have to be explained by them but the accused kept mum on this aspect. It is of course true that in a criminal case, the accused, unless found to be guilty, would be presumed to be innocent, but once the prosecution by cogent evidence succeeds in proving that the vehicle was recovered from the accused which was once handled by the deceased who at the stage of time was with them, the accused were to explain by proving the circumstances which may be sufficient to deviate from the natural presumption. The silent conduct of the accused would relieve the burden of the prosecution and it would heavily shift upon the Criminal Appeal No.410-DB of 2009 -12- *** accused. While elaborating the Section 106, of Indian Evidence Act, 1872, the Apex court in case Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 observed as under :-
"(10) Section 106 is an exception to S. 101. Section 101 lays down the general rule about the burden of proof.
"Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist."
Illustration (a) says -
"A desires a Court to give judgment that B shall be punished for a crime which A says B has committed."
A must prove that B has committed the crime.'
(ii) This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which could prove without difficulty or inconvenience."
In the case of Collector of Customs, Madras v. D. Dhoormull, AIR 1974 SC 859 another Bench of two learned judges of this Court while considering the offence under Sea Customs Act, 1878 earmarked the scope of Section 106 of the Evidence Act in the following terms in paragraphs 31 of the Report :
"31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered
- to use the words of Lord Mansfield of Blatch v. Archer 1994 (1) Cowp 63 at P. 65 according to the proof which it was in the power of one side to prove, and in the Criminal Appeal No.410-DB of 2009 -13- *** power of the other to have contradicted. Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden."
The Apex Court while relying upon the judgment delivered in Shambhu Nath Mehra's case (supra), took the similar view in case Balram Prasad Agrawal v. State of Bihar 1997 (3) R.C.R. (Criminal) 442.
The facts and circumstances of the instant case suggest no further inference or explanation except to hold that on the evening of 27.8.2005, the accused booked Tata Sumo of Shiv Kumar which was to be plied by Puran Mal deceased and pursuant to the said agreement, Puran Mal took the accused Parmod Mandal, Shiv Nandan Mandal, Raju Mandal and Subodh Mandal in the said Tata Sumo. But, at the time when the accused persons were arrested on 30.8.2005, they were plying the said Tata Sumo. On seeing the police party Subodh Mandal fled away whereas the remaining three accused were arrested along with Tata Sumo. The dead body of Puran Mal was recovered, the place was also identified by the accused where they had thrown the body of the deceased, blood stained clothes of the accused Parmod Mandal as well as of the deceased were also recovered at the instance of the accused and the accused had no explanation to make regarding the aforesaid circumstances. As such, the judgment passed by the trial court is upheld.
Consequently, finding no merit in the appeal, the same is dismissed.
(Hemant Gupta) (A.N. Jindal)
Judge Judge
April 20, 2011
deepak