Criminal Appeal No.378-DB-2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.378-DB-2009 Date of decision:13.02.2014 Vijay @ Pappu ... Appellant Versus State of Haryana .... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE JASPAL SINGH Present: Mr. Bijender Dhankar, Advocate and Mr. Vikas Lochab (Legal Aid Counsel) for the appellant. Mr. Baldev Singh, Addl. A.G. Haryana. RAJIVE BHALLA, J.
(Oral) 1. The appellant-Vijay Pal @ Pappu son of Ram Chander has filed this appeal challenging judgment dated 16.3.2009 and order dated 17.3.2009 convicting him for an offence under Section 302 of the IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.10,000/- and in default of deposit of fine to undergo imprisonment for six months.
2. The appellant has been arraigned for the murder of one Poonam, who was allegedly living with him. Gurvinder Singh son of Didar Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -2- Singh, resident of village Grida, District Panchkula, made a statement before Vinod Shanker-SHO, P.S. Pinjore, that on 4.6.2008, when he was present in the courtyard of his house, he heard the screams of a woman coming from bushes growing near the dam constructed in the north west of the village. He went to the Khera of the village where some other persons were sitting and informed them. Gurvinder Singh, Jasbir son of Gurbaksh Singh, Surender Singh son of Narmail Singh, Suchha Singh son of Niranjan Singh began a search and after some time came across the dead body of a woman, lying near the chowala kachha passage with knife injuries visible on the left arm, abdomen and breast. The statement was reduced into writing and was forwarded to the police station through Head Constable Janak Raj which lead to registration of FIR No.85 dated 12.6.2008.
3. Inspector-Vinod Shanker commenced investigation; called the scene of crime team, a dog squad; a finger print expert team and a photographer. The scene of crime team inspected the spot and thereafter conducted inquest proceedings. The inquest report reveals recovery of a gents' slipper at a distance of 5' 5”.; a ladies slipper at 5'3”., another ladies slipper at 5', raw mangoes at 6 ½ feet, bangles at 102, inches artificial (tops) at 8'8”., gents' slipper at 11'9”. and a knife at 7'10”.. The articles were sealed in separate parcels and taken into possession. The dead body was forwarded to the Civil Hospital, for post mortem. A blood stained knife was taken into possession from the spot, vide a recovery memo. A sketch plan of the knife was prepared. The Investigating Officer lifted blood stained soil and converted it into a sealed parcel, prepared a rough site plan of the place and Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -3- deposited the parcels with the MHC. The dead body was identified by PW-2 Pahal Singh son of Amar Singh as Poonam wife of Pappu.
4. The appellant was produced before PW-16 Inspector Vinod Shanker, on 13.6.2008 by Shri Kanwar Singh, Manager of a brick kiln and arrested on 14.6.2008. The appellant suffered a disclosure statement Ex.PF and got a pant and a shawl recovered, which were taken into possession vide Ex.PF/1. The appellant also identified the place of occurrence, vide memo Ex.PF/2. The rough site plan of the place of recovery of the pant and shawl Ex.PH/2 was prepared; statement of the photographer was recorded on 20.6.2008 and statements of Birmati, Ram Chander and Banwari were recorded on 5.7.2008. The Investigating Officer recorded the statement of the Halqa Patwari, who prepared the scaled site plan Ex.PE, statements of MHC Dhoom Singh and constable Purshotam and after completion of investigation filed a final report under Section 173 Cr.PC. The offence being exclusively triable by a Court of Sessions, the case was committed to the Sessions Court.
5. After considering the material on record, the Sessions Judge, framed charges under Sections 494 and 302 of the IPC to which the appellant pleaded not guilty and claimed trial. The prosecution was, therefore, directed to adduce evidence.
6. In order to substantiate its case, the following witnesses were examined by the prosecution:PW-1/ Dr. Arti Diwan. PW-4 is Dr. Ashwani who conducted the post mortem and found the following injuries on the person of the deceased: Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -4- “(i) 2 x 0.5 cm elliptical incised wound over right breast involving skin and subcutaneous fat. Medio superior to nipple. (ii) 3 x 2.5 cm elliptical incised wound over right breast, involving skin and subcutaneous fat below injury No.1. (iii) 3 x 3 cm elliptical incised wound on right breast medial to the right nipple below injury No.2. (iv) 1 x 1 cm elliptical incised wound just below right breast involving subcutaneous fat, tissue and intercostal muscles. (v) 3cm x 1 cm elliptical incised wound on right side of lower chest, on further exploration the depth of the wound was medially and superiorly and cutting liver (superior surface) and right (lower) lung. Injury on liver was 2 x 1 cm elliptical incised over superior surface. Injury of lung was of 2 x 1 cm elliptical & incised wound overline cartilage was cut. Blood was present in right plural cavity. Abdominal cavity was also full of blood. (vi) 1.5 x 1 cm elliptical incised wound over right side of abdomin, 5 cm lateral and superior to umblicus involving skin and abdominal fat. (vii) 3 x 3 cm elliptical incised wound 6 cm above to umblicus, slightly on left side. On further exploration wound was involving subcutaneous fat, skin and plercing the stomach. (viii) 2.5 x 1 cm elliptical incised wound over left side of lower chest involving skin, subcutaneous tissue and a part of intercostal muscle. (ix) 2 x 1 cm elliptical incised wound below left breast running oblique involving skin, subcutaneous tissue and muscle. (x) 8 x 8 cm incised wound involving skin subcutaneous tissue, blood vesscle and a party of muscle of left arm in distal 1/3 cm outside. (xi) Triangle elliptical shape 2.5 x 2.5 cm incised wound on Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -5- left forearm on dorso lateral side at the just front of middle and distal third involving skin, subcutaneous and a part of muscle. (xii) 3 x 2 cm elliptical incised wound on right arm in distal third lateral side vertically bone deep. (xiii) 3 x 1 cm incised elliptical wound on left thigh outer side. (xiv) 4 x 3 incised elliptical wound on left thigh in distal third involving skin only. (xv) 2 x 1 cm elliptical incised wound on posterior side of left thigh in distal third involving skin and subcutaneous tissue. (xvi) 1 x 1 cm incised elliptical wound on right thing posterior side in proximal third involving skin.”. 7. The doctors also proved the post mortem report Ex.PA.
8. PW-2/Pahal Singh, who was working as jamadar at RBT brick kiln deposed that the brick kiln is owned by Kamal Mohan. About 4-5 months before the occurrence, the appellant and Poonam had been sent by one Satpal to work as labourers at the brick-kiln and resided in a kacha house at the brick kiln, along with their children. About 15 days before the occurrence, they left the brick kiln and started living in a rented room at Lalru. He also deposed that Pappu and Poonam used to quarrel. Pahal Singh also identified the dead body of Poonam. During his cross examination, he denied that he had ever seen Pappu beating Poonam.
9. PW-3 Harbhajan Kaur is an important witness, who has deposed that at about 11:00 a.m., she was taking her child to Pinjore, for treatment. She saw Poonam and Pappu alighting from a three-wheeler and then proceeding on foot. She also deposed that she knows Poonam and Pappu as they worked with her at RBT brick kiln, for a short while. Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -6- 10. PW-5 is ASI Sunder Lal, who registered the formal FIR and made an endorsement on the ruqa Ex.PC/1. He also forwarded the special report to the Illaqa Magistrate and superior police officers.
11. PW-6 HC Rajbir Singh, has deposed about the discovery of three torn photographs from the room taken on rent by the appellant. The photographs were exhibited as P-1 to P-3.
12. PW-7 is constable Parshotam, who handed over the special report to the Illaqa Magistrate and superior police officers.
13. PW-8 is Ramesh Kumar, Patwari, who prepared the scaled site plan of the place where the dead body was discovered.
14. PW-9 is Deepak Verma, photographer, who proved photographs Ex.P-4 to P-8 and negatives Ex.P-9 to Ex.P-13.
15. PW-10 is Banwari Lal son of Nand Ram, who claims to be the husband of Poonam but could not adduce any evidence to prove the marriage. Banwari Lal deposed that Poonam had left him and started residing with the appellant but admitted that he did not lodge any complaint against his wife or take any steps in that regard.
16. PW-11/Kanwar Singh son of Hari Singh has deposed that on 13.6.2008, the appellant-Pappu came to his house at Ram Darbar, Chandigarh and admitted that he had committed the murder of Poonam, on 4.6.2008. The appellant made a request that he should be taken to Police Station, Chandi Mandir as the police is looking for him. Kanwar Singh produced the appellant before the police. On 14.6.2008, the appellant suffered a disclosure statement, Ex.PF admitting to the murder of Poonam Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -7- and got a pant and a shawl recovered. The recovery memo and the disclosure statement bear the signatures of this witness. The witness was cross examined but nothing could be elicited to detract from the truth of his deposition.
17. PW-12 is ASI Gurdev Singh, a member of the Investigating Team who has deposed with respect to the search conducted in the accommodation rented by the appellant, in village Chaundhri, P.S. Lalru, Punjab, from where three photographs, one of a female, the other of male and a photograph of a boy and girl were taken into possession vide memo Ex.PD and exhibited as Ex.P1 to P-3.
18. PW-13 is MHC Dhoom Singh who has deposed with respect to deposit of sealed parcles of knife, blood stained earth, clothes, tops, bangles, samples seals, viscera, clothes worn by the deceased Poonam and sample seal of the doctor etc.
19. PW-14 is Gurvinder Singh son of Didar Singh who discovered the dead body and reported the matter to the police. He has also deposed about recovery of knife Ex.P-14, bangles Ex.P-15, pieces of bangles P-16, slippers etc. and proved his signatures on Ex.PG and Ex.PG/1 on the recovery memos and other articles recovered from the place where the dead body was discovered.
20. PW-15 Riti Saini is a member of the scene of crime team who proved report Ex.PY.
21. PW-16 is Inspector Vinod Shankar, who deposed as to the investigation in detail, recovery of the knife. Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -8- 22. PW-17 is constable Sumeet Kumar, who deposed with respect to deposit of articles with FSL Madhuban.
23. Counsel for the appellant submits that the evidence on record is entirely circumstantial. The absence of any evidence of motive, any proof that the deceased was married to the appellant or that they resided together puts paid to the prosecution version. The so called extra judicial confession was allegedly made before Kanwar Singh who is not a person of any authority, and even otherwise was made 9 days after the alleged murder. It is further submitted that there is no evidence that finger prints were lifted from the knife and or from other articles recovered from the site. The clothes recovered from the appellant pursuant to a disclosure statement were sent for FSL examination but the laboratory could not form any opinion as to the stains were too small to analyse. It is also contended that the witness who has deposed that she last saw the deceased with the appellant, is a chance witness and had no reason to be present at the spot. She has been procured by the police. The slippers both male and female recovered were sent for forensic examination but no blood stains were found on the slippers. It is further submitted that merely as a witness has deposed that the appellant was residing with the deceased it is insufficient to infer the appellant's culpability, particularly, when the prosecution has failed to complete the chain of circumstances required to prove a case based upon circumstantial evidence.
24. Counsel for the State of Haryana submits that though it is true that there is no eye witness of the occurrence but the prosecution has in its Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -9- endeavour to prove the appellant's guilt, produced a witness, to prove that the appellant and the deceased were seen together a few hours before the unfortunate murder of Poonam, a witness, who has deposed that the appellant and the deceased were residing together and often quarreled to establish motive and the Manager of the Brick Kiln, a person known to the appellant before whom the appellant made an extra judicial confession. The appellant was not a native of the area and therefore, approached the Manager of the brick kiln to make a confession of his guilt. The witnesses produced by the prosecution are not inimical to the appellant and nor has any such suggestion been put to these witnesses. The fact that finger prints were not lifted may be an error on the part of the police but this alone does not entitle the appellant to any benefit.
25. We have heard learned counsel for the parties and perused the record.
26. The appellant was arraigned for the murder of one Poonam. As per the story set-up by the prosecution, Poonam and the appellant were residing, in a hut at RBT, Brick Kiln in District Panchkula. The appellant and Poonam left the brick kiln, 15 days before the occurrence and began residing in a rented room at Lalru. The discovery of Poonam's dead body by the first informant Gurvinder Singh-PW-14 set the law into motion. The prosecution, in the absence of any eyewitness, has based its entire case upon circumstantial evidence i.e. evidence of last seen, an extra judicial confession, statement of a co-worker from the brick kiln, evidence of recovery and medical evidence. The evidence of last seen is based upon the Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -10- deposition of PW-3/Harbhajan Kaur who has deposed that on 4.6.2008, when she was going to hospital to get her ailing son treated, she saw Poonam and the appellant alighting from a three-wheeler and thereafter proceeding on foot. Poonam was murdered in the late evening of 4.6.2008. The deposition of PW-3/Harbhajan Kaur, establishes that the deceased was in the company of the appellant soon before her death and in the vicinity of the area where the dead body was discovered. An argument that Harbhajan Kaur is a chance witness, does not enable us to discard her deposition. Harbhajan Kaur has clearly deposed that she saw the appellant and the deceased alighting from an auto rickshaw and then proceeding on foot. Harbhajan Kaur was able to identify the appellant and the deceased as she was also working at the brick kiln. The other piece of evidence is the extra judicial confession made by the appellant before PW-11/Kanwar Singh, who was admittedly working as manager of the Brick Kiln, where the appellant and the deceased were working. The deposition by PW- 11/Kanwar Singh, is clear and cogent and does raise any doubt as to its veracity. PW-11 Kanwar Singh may not be person of public prominence, but it was natural for the appellant, who is not a resident of the area to approach the first person of any authority known to him, in the hour of his need. The appellant, therefore, turned to Kanwar Singh/PW-11, Manager of the brick kiln spelt out his story and requested him to intercede on his behalf with the police. We find no reason to doubt the deposition by Kanwar Singh, that on 13.6.2008, the appellant made a confession before him that he had murdered Poonam. It would be necessary to record that an extra Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -11- judicial confession like any other piece of evidence if proved can and often does raise an inference of culpability and depending upon the facts and circumstances of a case may even raise an inference of guilt without corroboration. A Court must, however, take care, particularly where the accused and the person before whom the confession is made are absolute strangers or the person is not in a position of authority viz-a-viz the accused to rule out the probability of a procured or false deposition. The appellant was working at the brick kiln where Kanwar Singh was working as a manager. It was, therefore, natural for him to turn to Kanwar Singh in his hour of need and confess his guilt. The deposition of Kanwar Singh inspires confidence and must, therefore, be accepted as a truthful narrative of the confession made by the appellant.
27. As to the motive the prosecution has relied upon the deposition of PW-2/Pahal Singh a worker at the brick kiln who has deposed that the appellant and the deceased had been residing at the brick kiln for the last 4- 5 months and used to quarrel. Apart from this evidence Ex.P-4, a report prepared by the scene of crime team, knife and bangles recovered from the crime scene and shawl and bangles recovered at the behest of the appellant stained with blood, as recorded in the report received from the forensic science laboratory Ex.PX/1 are other pieces of evidence.
28. The prosecution has established the guilt of the appellant on the basis of evidence of last seen, the extra judicial confession, coupled with the medical evidence and recovery of the knife and has brought home the appellant's guilt. We find no reason to record an opinion other than the Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.378-DB-2009 -12- opinion recorded by the trial Court while convicting and sentencing the appellant.
28. In view of the discussion referred to above, the appeal fails and is hereby dismissed. (RAJIVE BHALLA) JUDGE (JASPAL SINGH) JUDGE1302.2014 rajeev Thakral Rajeev 2014.03.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh