Binder vs State of Haryana

Hemant Gupta, J.—The present appeal is against the judgment of conviction dated 18.04.2003 and order of sentence dated 22.04.2003 passed by the learned Addl. Sessions Judge, Panipat, whereby it convicted the appellant for the offences punishable under Sections 366, 354 and 302 IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2000/- for an offence u/s 366 IPC; rigorous imprisonment for two years for an offence u/s 354 IPC and life imprisonment and to pay a fine of Rs. 5000/- for an offence u/s 302 IPC.

The prosecution case was set in motion on the basis of statement (Ex.PC) of Mam Chand son of Neki Ram recorded by SI Prithvi Raj on 23.1.1999. The statement is to the effect that he is working as labourer and has six children i.e. three sons and three daughters. Youngest is son Joginder, aged about 5/6 years; elder to him is daughter Reena, aged about 9/10 years; elder to her is son Anil, aged about 12/13 years. He has further stated that yesterday on 22.1.1999, his daughter Reena and two sons namely Anil and Joginder had gone to the house of his brother Gordhan to watch T.V. at about 10.30 PM. At about 11.00 PM, his daughter Reena came back, but he sent her back to call for his two sons. His sons Anil and Joginder came back to their house at about 12.30 AM after watching TV. He asked from them about Reena. They told him that Reena had already come much earlier. Thereafter, he alongwith his brother Gordhan went towards Dhindar Wala Johar in search of his daughter Reena and saw the dead body of Reena lying in one corner of the Johar. Salwar was tied in her neck. It was further stated that his daughter has been strangulated to death with the help of her salwar by some one and throw in the pond. After leaving his brother Gordhan near the dead body, when he was going to the Police Station, when SI Prithvi Raj met him. His statement was recorded at 1.00 PM. On the basis of such statement, an FIR was lodged at about 2.00 PM. The special report was received by the learned Magistrate at 3.25 PM on 23.1.1999.

The post-mortem examination on the dead body of the deceased was conducted by PW-12 Dr. Tejinder Kharbanda alongwith Dr. Jaya Goel. The post-mortem report is Ex.PR. As per the Doctor, the bleeding was present from vagina. There was fresh rupture of hymen found on examination and that the vagina admits one finger. The Doctor has taken vaginal swabs. The said Doctor has also examined the appellant on 31.1.1999. The medico-legal report in respect of the appellant is Ex.PS/1. It was concluded that the evidence did not suggest that the appellant could not perform the act of sexual intercourse. The report of the Forensic Science Laboratory is Ex.PT. As per the said report, semen could not be detected on Ex.1a (slides) and Ex.1b (Vaginal Swabs).

On 24.1.1999, the Investigating Officer recorded the statement of one Prem Singh u/s 161 Cr.P.C. The statement is to the effect that he has seen the present appellant at about 1.00 PM on the intervening night of 22/23.1.1999 coming from Dhindar Wala Johar. The prosecution also relied upon the testimony of PW-8 Liakat Ali, the then Up-sarpanch, who has proved the extra judicial confession of the appellant made to him on 30.1.1999. It was, thereafter, Liakat Ali has produced the appellant before the Investigating Officer, when he was arrested.

Apart from examining PW-3 Prem Singh and PW-8 Liakat Ali, the prosecution has also examined PW-2 Mam Chand, father of the deceased, PW-4 Anil Kumar, brother of the deceased and PW-11 SI Prithvi Raj, the Investigating Officer.

The prosecution also relied upon disclosure statements suffered by the appellant Exs.PE and PF identifying the place of molestation of the girl and her strangulation. Since, such disclosure statements have not led to discovery of any fact, the statement of PW-6 Roshan Lal does not advance the prosecution story and is not relied upon. Resultantly, the prosecution case is to examine with reference to the statement of PW-3 Prem Singh; extra judicial confession of the appellant before PW-8 Liakat Ali; circumstances proved by PW-2 Mam Chand and PW-4 Anil Kumar apart from the statement of PW-11 SI Prithvi Raj, the Investigating Officer.

As per PW-2 Mam Chand, Reena alongwith Anil and Joginder has gone to the house of his younger brother Gordhan at about 10.00/10.30 PM. Reena came back alone, as she was feeling sleepy, but he asked her to go back and bring her brothers back. Anil and Joginder, brothers of Reena came back at 12.00/1.00 AM, but Reena did not come. On inquiry, he was informed that she has already left the house of Gordhan much prior to their leaving the house. Thereafter, he searched his daughter alongwith his brother Gordhan and found the dead body of Reena lying in the Johar known as Dhindar Wala Johar. Her salwar was found tied in her neck. In his cross-examination, he has admitted that Binder - accused is his real nephew i.e. real brother''s son and that on the day of occurrence in the morning hours, Binder''s father might have a dispute with his wife, but there is no dispute of Nali. He denied that they were having dispute very often. He has further deposed that he has seen the accused on 22.1.1999 in the morning hours, when the accused was at his house.

PW-4 Anil Kumar was examined after the Court recorded a note that Anil, a boy of 13/14 years is a competent witness. He has supported the prosecution story as deposed by PW-2 Mam Chand in his examination-in-chief. However, in his cross-examination, he has stated that search for Reena was made on that night in many houses in neighbourhood including the house of Beda and the house of Tau i.e. house of accused. He further stated that Binder accused is his Tau''s son. He has deposed that he has not seen Binder on the day of occurrence.

PW-11 SI Prithvi Raj, the Investigating Officer has stated in his cross-examination that he alongwith other police officials stayed for 36 hours in the village and came back next day in the evening. He has also stated that the house of the accused and that of deceased Reena abuts and that he searched for the accused from 23.1.1999 to 30.1.1999 and that needle of suspicion was towards accused on the basis of information given by the parents of Reena and other villagers and that Liakat Ali produced an accused before him for the first time.

PW-3 Prem Singh has stated that on 22.1.1999, there were guests at his house on account of the fact that his nephew Ram Kumar was going to be engaged. He further stated that he saw the accused coming from the side of Dhindar Wala Johar, the place from where the dead body was recovered, at about 12.00/1.00 mid night of 22/23.1.1999. He has admitted in his cross-examination that there are 5-10 houses between the house of the accused and his house. This witness also stated that way from which accused Binder was coming only leads to Dhindar Wala Johar, which is at a distance of 2-3 killas from his house. He has admitted that he had a dispute with Binder, his father and his uncle about 10-12 years ago. In the FIR registered in respect of such dispute, he was one of the accused. The witness further stated that the accused party took names of 40-50 persons, whereas his uncle''s party also mentioned the names of 40-50 persons. He denied the suggestion that since the day of the aforesaid dispute, the entire village and his family has been nourishing a grudge against the accused and his father. He has also denied the suggestion that he has not seen the accused coming from the side of Dhindar Wala Johar at the relevant time.

PW-8 Liakat Ali was Deputy Sarpanch of Village Admi i.e. the village of accused in January 1999. He was Sarpanch of the village Panchayat on the date, when he appeared as a witness. He has deposed that on 30.1.1999, Ram Pal, Ex-Sarpanch was present with him in the baithak of the village and that accused Binder present in the Court came to them and started weeping. The accused stated that he had committed blunder and that as they were on visiting terms with the police, he may be produced before the police. He further deposed that when they asked him about the details of the blunder, he stated that on 22.1.1999 at about 11.30 PM, he came back after consuming liquor from Bapoli and when he reached near the house of Gordhan, he found Reena peeping from the door of Gordhan. Reena is daughter of Mam Chand. He further disclosed that he picked up Reena and went towards the shop of one Mehna. He further disclosed that Reena asked him as to where she was being taken, to which he (Binder) replied that she should keep mum otherwise he would leave her there. The accused further disclosed that he took her in a jungle near a kikkar tree and made Reena lie on the ground, opened her salwar and inserted his finger into her vagina, upon which Reena cried. He further disclosed that thereafter he put her salwar on her mouth and nose, but she again cried. The accused further disclosed that he again inserted his finger into the vagina of Reena and when she cried he pressed her mouth and nose where salwar was already put. After that Reena became un-conscious. Thereafter he tied her salwar around her neck and took her from that place and threw her body into a nearby pond. He further disclosed that thereafter he went to his house and slept. He also disclosed that on the next morning his mother wake him up and told that Reena has disappeared, to which he replied that she may be traced. In his cross-examination, PW-8 Liakat Ali has stated that the house of Ram Pal is at a distance of about 300 yards from his house and is on the visiting terms with him. He and Ram Pal are not affiliated with any political party. He has deposed that Binder was jobless and that he has not told about the said disclosure statement to the parents of the girl. He has also stated that the accused has told him that after the incident, he left the village on account of fear of the police.

After the prosecution concluded its evidence, the incriminating circumstances appearing in the prosecution evidence, were put to the accused. The appellant denied all the incriminating evidence against him and asserted that he has been falsely implicated in this case on account of a quarrel between his family and complainant family about two years ago. The accused also examined DW-1 Kela wife of Parmal and DW-2 Satish son of Tara Chand in his defence. Both the witnesses have deposed to the fact that there was no engagement ceremony in the house of PW-3 Prem Singh on 22.1.1999.

The learned trial Court found that the prosecution has succeeded in proving the charges against the appellant on the basis of statements of PW-3 Prem Singh and PW-8 Liakat Ali. The Court found that the statements of DW-1 Kela and DW-2 Satish do not help the accused.

Before this Court, learned Counsel for the appellant has sought to argue that the statement of PW-3 Prem Singh is that of a interested witness, as he has a motive to depose against the appellant. It is contended that the appellant has been falsely implicated on account of his disputes with the family of PW-2 Mam Chand and that of PW-3 Prem Singh. Therefore, the prosecution story which is based upon weak evidence of extra judicial confession and the evidence of last seen is not sufficient to return a finding that the appellant alone has committed crime. It is also argued that PW-8 Liakat Ali is a stock witness of the investigating agency, therefore, his testimony is also of not a reliable witness. From the statements of DW-1 Kela and DW-2 Satish, it is apparent that there was no engagement ceremony in the house of PW-3 Prem Singh as propounded by the prosecution.

Having heard learned Counsel for the parties, we do not find any merit in the present appeal.

From the evidence on record, as noticed above, the house of the appellant and that of Mam Chand i.e. father of the deceased are adjacent to each other. Statement of PW-3 Prem Singh has been recorded by the Investigating Officer on 24.1.1999, when the Investigating Officer was staying in the village itself i.e. before the extra judicial confession was allegedly made on 30.1.1999. The Investigating Officer has deposed that the appellant has left the village and could not be traced out. Though the PW-3 Prem Singh has admitted that there were disputes between the family of the witness and that of the accused, but the fact remains that such disputes have taken place more than 10-12 years ago. Still further, there is no evidence of any simmering disputes between the family of Prem Singh and that of the accused in the last decade or so. Such stale dispute is not relevant when the witness is of the same village and living close to the houses of the parties. We find that the testimony of PW-3 Prem Singh as that of a reliable witness. He has deposed only to the fact that he has seen Binder coming from the side of Dhindar Wala Johar. The dead body has been recovered from Dhindar Wala Johar and such recovery is close to the timing of last seen by PW-3 Prem Singh. No suggestion has been given to the witness that there was no engagement ceremony in his house on the aforesaid day as sought to prove by leading defence evidence. In view of the said fact, we do not find any infirmity in the prosecution case that there was ceremony in the house of PW-3 Prem Singh on 22.1.1999 and that he has seen the appellant coming from the side of Dhindar Wala Johar close to the time of death of Reena.

The testimony of PW-8 Liakat Ali completely nails the appellant. From the testimony of PW-8 Liakat Ali and that of PW-11 SI Pirthvi Singh, the Investigating Officer, it transpires that the accused was not available at his house from 23.1.1000 till 30.1.1999 when he was produced by Liakat Ali before the Investigating Officer. The testimony of PW-8 that the accused has inserted his finger in the vagina of the deceased is corroborated by the medical evidence, as no semen was found on the vaginal swabs. Vaginal swabs were taken at the time of post-mortem examination on 23.1.1999. At that time, the story of insertion of finger in the vagina of the deceased was not known to the prosecution. The said fact corroborates the prosecution case based upon the extra judicial confession of the appellant made before PW-8 Liakat Ali.

The house of the deceased and that of the appellant abuts each other. The suggestion that there were dispute between two families have been denied by PW-2 Mam Chand, father of the deceased. It is not unnatural or improbable for the deceased to accompany the appellant, who is none else, but her cousin. It is the appellant, who has breached the confidence of a young girl, when he took her to a jungle, sexually molested her and took her life. The circumstantial evidence produced by the prosecution links the appellant with the commission of crime conclusively. The prosecution has succeeded in proving the charges of molestation and of taking life of Reena by the appellant beyond any reasonable doubt.

The statements of DW-1 Kela and DW-2 Satish cannot be relied upon as the prosecution witnesses have not been cross-examined in respect of such evidence. The prosecution witness PW 3 has not been suggested that there was no ceremony in his house on 22.1.2003. Therefore, the statements of DW-1 Kela and DW-2 Satish have been rightly not relied upon by the learned trial Court. From the evidence led by the prosecution, we do not find any illegality or irregularity in the findings recorded by the learned trial Court holding the appellant guilty for the offences punishable under Sections 366, 354 and 302 IPC.

Consequently, the present appeal is dismissed.