Full Judgment
Criminal Appeal No.572-DB of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.572-DB of 2008 (O&M) Date of Decision: August 30, 2013. Sonu Kumar alias Sonu and others ..Appellant(s) Versus State of Haryana ...Respondent(s) CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL HON'BLE MS. JUSTICE ANITA CHAUDHRY 1 Whether Reporters of local papers may be allowed to see the judgment?. Yes/No 2. To be referred to the Reporters or not?. Yes/No 3. Whether the judgment should be reported in the digest?. No Present: Mr. Ravinder Hooda, Advocate for the appellants. Mr. Dhruv Dayal, Deputy Advocate General, Haryana for the respondent-State. ***** ANITA CHAUDHRY, J.
1. The appellants have preferred this appeal against the judgment dated 07.08.2008 and conviction order dated 09.08.2008 recorded by the Addl. Sessions Judge, Fatehabad in FIR No.260 dated 16.08.2006 registered at Police Station City Tohana under Sections 364-A, 302, 201/34 IPC. Appellant Sonu was sentenced to undergo life imprisonment along with a fine of Rs.50,000/- for commission of offence under Section 302 IPC. In default of payment of fine, he was directed to further undergo simple imprisonment for a period of three years. He Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document Criminal Appeal No.572-DB of 2008 (O&M) -2- was further sentenced to undergo life imprisonment along with a fine of Rs.50,000/- for the offence punishable under Section 364-A IPC. In default of payment of fine, he was directed to further undergo simple imprisonment for a period of three years. Sonu along with Dharampal and Babli were also sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.3,000/- each for the offence punishable under Section 201 IPC. In default of payment of fine, they were directed to further undergo simple imprisonment for a period of two months.
2. This is an unfortunate incident where the life of a child of 12 year old was snuffed. The child was kidnapped and a ransom call was made. The child was strangulated and his dead body was put in a gunny bag. The incident occurred on 16.08.2006. Jimmy had gone to the Hanuman Temple for 'Kar Sewa' on the occasion of Janamashtmi. At 8:30 P.M. a call was received on the landline phone which was attended by Ram Singh who is the grand father of the child. The caller wanted to speak to Raju @ Ajit Singh, father of Jimmy. The caller wanted to knot the whereabouts of Jimmy. The complainant replied that he had gone to the temple. The caller told him that the child was in his custody and asked him to arrange for six lacs rupees. The complainant asked him where the money was to be delivered. The caller replied that he would call him in the Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document Criminal Appeal No.572-DB of 2008 (O&M) -3- morning and tell him the place where the money was to be sent. The complainant went to Hanuman temple and searched for his son and after having failed, he reported the incident to the police. The prosecution case is that the police got the telephone of the complainant put under surveillance and a Caller I.D. was also attached to the telephone. The kidnapper made a call the next afternoon. The phone number was noted and after verifying the address it was found that the phone call had been made from a STD booth. The police party immediately went to the STD booth and made inquiries from the STD owner who supplied some information. The accused was apprehended shortly thereafter. He suffered a disclosure and led the police party to his house. He disclosed that he had strangulated the child and his father had asked his sister to get a bag and the dead body was put in a plastic bag and it was lying in his house. As per disclosure, the dead body was in his house. The police also collected the details of the phone calls made from the STD booth and completed the investigations and submitted the challan against Sonu, his father Dharampal and sister Babli. Accused Sonu was charge sheeted for commission of offence under Section 364-A and 302 IPC. All the accused were further charge sheeted for commission of offences under Section 201 read with Section 34 IPC. The accused pleaded not guilty and claimed trail. Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document Criminal Appeal No.572-DB of 2008 (O&M) -4- 3. The prosecution had examined Ajit Singh - PW1, the complainant, Ram Singh PW2, the grand father of the child, the owner of the STD booth namely Om Parkash PW5, Parshant Aggarwal PW6, Organization Secretary of Narayan Sewa Sansthan, Udaipur, from where the accused Sonu had taken treatment for polio. Besides these witnesses, the prosecution also examined the Investigating Officers and Dr. Satish Garg PW3 who had conducted the postmortem examination on the dead body of deceased Jimmy.
4. Dr. Satish Garg had noted the following injuries on the person of deceased:- “It was a dead body of 4 feet 3 inch moderately nourished moderately built male wearing white vest and green pajama (kapree) mouth was open tongue was protruding out, eyes were protruding out facial matter was perineum. Rigor mortis was absent, skin was peeled of from face, upper extremities, perineum no ligature mark was traced. On dissection C2 vertebra was found fractured. The brain and membranes were congested. The larynx was found fractured and blood collection was seen. The trachea was congested. The testis were found swollen. All other organs were healthy. The cause of death in this case in the opinion of Board was strangulation leading to asphyxia and death. The injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature.”
. Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document Criminal Appeal No.572-DB of 2008 (O&M) -5- The time between the injury and the death was instantaneous and between the death and postmortem was stated to be 24 to 28 hours.
5. The accused in their statements recorded under Section 313 Cr.P.C. pleaded false implication and denied the allegations. However, they did not lead any evidence in their defence.
6. The trial Court convicted and sentenced them to the punishment mentioned here-in-above.
7. We have heard the submissions made on behalf of both the sides and with their assistance perused the record carefully.
8. The learned counsel representing the appellants had urged that the case was based upon circumstantial evidence and there is no eyewitness and there is discrepancy in the statements with respect to the time of arrest of the accused and all the witnesses have made different statements and the story projected by the prosecution was false. It was urged that the prosecution had tried to bring up a motive that Sonu needed money for his treatment as he was suffering from polio but the prosecution themselves had examined a witness to show that Sonu had taken treatment from Narayan Sewa Sansthan, Udaipur in 2005 and the case stands falsified. It was further urged that there is no evidence with respect to the role of Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document Criminal Appeal No.572-DB of 2008 (O&M) -6- appellants Dharampal and Babli as no recovery was affected from them pursuant to the disclosure statement set up by the prosecution and the appeal be allowed. The counsel representing the State strenuously urged that appellant Sonu needed money for his treatment as he was a polio patient and he kidnapped a 12 year old boy and took him to his house and then made a ransom call from the STD shop but luck was not on his side as the complainant reported the incident to the police and the telephone was put under surveillance and the phone call was traced to the STD booth and the STD owner also gave a clue and few minutes later the police arrived at the shop and were able to nab the boy. It was vehemently urged that the accused who suffered a disclosure and led the police to his own house and dead body was found near the stairs. It was further urged that the photographs would show that the child had bled from the nose and ears which had flown out and they have given no explanation how the dead body of Jimmy was found in their house. It was also urged that the father and daughter had helped Sonu hide the dead body and their involvement in the crime is well proved and the judgment and sentence order passed by the trial Court was well reasoned and appeal deserves dismissal.
9. The complainant Ajit Singh - PW1 in his deposition before the Court had disclosed that his son had gone on the Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document Criminal Appeal No.572-DB of 2008 (O&M) -7- occasion of Janamashtmi to the Hanuman temple for 'Kar Sewa' and two hours later his father received a phone call on the landline telephone installed in his house. The caller wanted to speak to him. The caller asked a ransom of rupees six lacs and told him that he would tell the place where the money was to be handed over. The complainant stated that he went to Hanuman temple and also got an announcement made through the loud- speaker and having failed to trace him, he gave an application Ex.P1 to the police. He stated that a phone call was received the next evening at 4:21 P.M. from a telephone of Tohana Exchange as the police had already installed a caller I.D. and the call was traced to a PCO and the accused was arrested. He stated that Sonu's family had earlier lived in their house as a tenant but Sonu did not live in their house and that is why he could not identify his voice. He stated that Sonu suffered a disclosure that he was in need of rupees six lacs for his treatment and took Jimmy to his house and then tied his mouth and went to make a telephone call and on his return he found that Jimmy's condition was deteriorating and he got frightened and strangulated him and after some time his father Dharampal and sister Babli arrived and they asked him that he had committed a blunder. Dharampal asked Babli to bring a plastic bag and the body was put in the gunny bag by Dharampal and Sonu and they had put it under the stairs. He stated that Sonu had further disclosed Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document Criminal Appeal No.572-DB of 2008 (O&M) -8- that they would throw the dead body in the Bhakhra Canal in the night but could not do so on account of heavy police patrolling. He stated that accused disclosed that the body was lying in his house and could get the same recovered, therefore, he led the police to his house and the dead body was got recovered.
10. The prosecution had examined Ram Singh PW-2, grand father of the child who supported the prosecution story as well as the version given by complainant Ajit Singh.
11. Om Parkash PW5 had stated that Sonu had made some calls from his STD booth on 16.08.2006. He also gave the details of the telephone number on which the calls were made. He stated that the next day Sonu made one phone call at 4:15 P.M. He produced the phone call slips Ex.P25 to Ex.P28. He stated that he did not hear the conversation that was exchanged but the police arrived at his PCO ten minutes after the call made by Sonu and he told the police that a 'lame' boy had gone towards the market.
12. The Investigating Officer Ram Rattan, DSP - PW14 spoke about the steps taken to apprehend the accused. He stated that the telephone was put under surveillance and caller I.D. was attached to the telephone and the call was traced to the STD booth and the STD owner had given them some information and accused Sonu was caught just outside the shop. Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document Criminal Appeal No.572-DB of 2008 (O&M) -9- He also spoke about the disclosure statement suffered by Sonu and the recovery of the dead body from his house at his instance.
13. The motive put forward by the prosecution was that Sonu wanted money for his treatment. The argument made on behalf of the appellants was that Sonu had already taken treatment in 2005 from Narayan Sewa Sansthan, Udaipur and the operation was free of cost and therefore, the motive set up by the prosecution was incorrect.
14. So far as the motive is concerned, it is always in the mind of the person and it is a difficult fact to prove and the prosecution case cannot be thrown out because the evidence with respect to it could not be collected. The police had acted in a prompt manner on the complaint lodged by Ajit Singh and the accused fell in the trap as the police traced the call and reached the STD booth from where the call was made. Sonu was arrested minutes later and he suffered a disclosure statement which has been proved by the prosecution witnesses. The accused had led the police party to his house from where the dead body was recovered, a day after the kidnapping. The appellants failed to explain as to how the dead body was lying in their house. There is hardly any discrepancy with respect to the place of arrest. The owner of the STD booth did make a statement which is at variance with the statement made by the Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document Criminal Appeal No.572-DB of 2008 (O&M) -10- complainant and the Investigating Officer but it does not damage the prosecution case.
15. The entire facts and circumstances have been examined and the chain of evidence is complete. The prosecution had proved all the circumstances which unerringly point towards the guilt of appellant Sonu.
16. There is no evidence so far as appellants Dharampal and Babli are concerned. The prosecution did project that they had suffered a disclosure statement but no recovery was effected at their instance. The place of recovery was already known to the police. The disclosure statements made by Dharampal and Babli were not admissible in evidence. Therefore, the appeal filed by Dharampal and Babli is allowed. The judgment and sentence passed by the trial Court as against Sonu, is confirmed. The appeal filed by appellant No.1 Sonu is dismissed. The appeal is partly allowed. The trial Court records be sent back. (M.JEYAPAUL) (ANITA CHAUDHRY) JUDGE JUDGE August 30, 2013 sunil Sunil 2013.09.05 12:42 I attest to the accuracy and integrity of this document