Dharam Pal vs State of Haryana

V.K. Bali, J.

The prosecution charged Dharam Pal, appellant herein, for his lust for sex resulting into rape and murder of a minor child, aged 78 years, daughter of Gurcharan Singh, PW7. In the resultant trial, on the charges under Sections 302/376 of the Indian Penal Code, learned Sessions Judge, Bhiwani vide his order of conviction and sentence dated September 16, 1994, sentenced the appellant to undergo imprisonment for life and to pay a fine of Rs. 20,000/, or in default of payment of fine to further undergo RI for six months, under Section 302 IPC as also to ten years rigorous imprisonment and to pay a fine of Rs. 20,000/, or in default thereof to further undergo RI for six months, under Section 376 IPC. It is against this order of conviction and sentence that the present appeal has been filed through jail. Appellant has been provided the services of a lawyer on the panel, Mr. K.S. Hooda, who even though assisted the Court to the best of his capability, has not been able to make any dent in the prosecution version.

The hapless victim of rape and murder was sent by her grandfather, Molu Ram to fetch Biris for him on the eventful day, i.e., March 15, 1993 at about 2.30 p.m. Sonu never returned and it is only at about 9.00 a.m. on March, 16, 1993 that her dead body was recovered from the road leading to Bidhwan Pond (Johar) in a gunny bag. Immediately, Gurcharan Singh, PW 7, father of the victim, swung into action when he reported the matter to the police at about the same very time when dead body of Sonu was recovered on March 16, 1993. On the basis of statement made by him, formal FIR came into being at 11.35 a.m. which was recorded by Munshi Ram SI, PW 15, in police station City Bhiwani. The special report reached the concerned Magistrate at Bhiwani on the same very day at 2.30 p.m. which was carried by Constable Lilu Ram.

Postmortem conducted on the dead body of Sonu, as per deposition of PW 3 Dr. K.K. Girdhar, revealed that length of the body was 3''9" and that there was a mark of legature on the neck. On Salwar, at the back, there were stain marks which were encircled. There were no blood stains on Salwar but blood stains were present on shirt. Sand particles were present on the hair of scalp and thigh. Upper and lower lips were congested. Lacerations were present at muco cutaneous junction of upper and lower limb. There was extravacation of blood in the lips. Abrasions were covered with clotted blood and there was laceration of posterior fourchette of vagina, extending upto rectal wall. There was serosanguinous discharge from vagina and swab from vagina was taken and sent to the Chemical Examiner. Hymen was completely torn. The cause of death, in the opinion of the doctor, was asphyxia due to smothering which was antemortem in nature and sufficient to cause death in ordinary course of nature. The doctor further stated that possibility of associated neurogenic shock due to rape could not be ruled out. The probable time that elapsed between injuries and death was within a few minutes and between death and post mortem within 24 hours. After seeing the reports of the Chemical Examiner, Ex. PK, PK/1 and PK/2, the doctor reiterated the cause of death as mentioned by him in the post mortem report. He further stated that possibility of associated neurogenic shock due to rape could not be ruled out. After seeing the reports of the Chemical Examiner, the doctor further stated that death of Sonu could have been caused in the process of being raped. In his crossexamination he admitted that he had not seen any blood stains on the Salwar of the deceased. He, however, stated that he had seen blood stains only on the shirt of the deceased. PW 1 Dr. S.K. Anand stated that he examined Dharam Pal appellant and opined that there was nothing to suggest that he was incapable of performing sexual intercourse. In his cross examination, of course, he stated that there was no injury on the genital organ of the appellant. But he further stated that it was not necessary that there might be an injury on the male organ if forcible sexual intercourse was committed.

Besides the two doctors, referred to above, the prosecution endeavoured to prove its case by examining Om Parkash, PW 13 and Roshni, PW 10. These are the witnesses who had last seen the victim which was recovered. PW 10 Roshni is a shopkeeper. Sonu had gone to her shop to purchase Biris on the eventful day at about 1.45 p.m. The appellant Dharam Pal was standing near her and he asked Sonu if she wanted to take Bhujia or toffee. Thereafter, the appellant took her by finger to the bazar. PW 13 Om Parkash, uncle of the victim, had seen Sonu on the shop of Roshni with the appellant. He saw them as such while he was going to his house from near the shop of Roshni. It was at about 2.00 p.m. that he had seen Sonu and Dharam Pal on the shop of Roshni. Appellant was offering toffees to Sonu. He went to his house. These two witnesses have fully supported the prosecution version. Sajjan Kumar, a Municipal Commissioner, who was examined as PW 5, stated that the appellant had confessed his guilt before him on March 25, 1993. The accused/appellant had gone to him at about 10.00 a.m. at his residence and told him that on March 15, 1993 he had taken Sonu daughter of Gurcharan Singh from the shop of Roshni who was coming after taking Biris and a matchbox and took her to a room. After taking her inside the room, he bolted the same and had forcible sexual intercourse with her. Sonu was bleeding because of sexual intercourse and became unconscious. He, out of fear, throttled her to death to conceal the evidence of rape. He wrapped the dead body of Sonu in a gunny bag and firstly concealed it in that room. Then in the night he took the gunny bag to bury her near Bichhwana pond but some people came in front of him, and he had to throw the gunny bag in front of an Ambassador car and ran away. No dent at all could be made in the sworn testimony of this witness, even though he was adverted to a lengthy crossexamination by the learned defence counsel. The next link in the chain of prosecution evidence is with regard to recovery of a quilt, Ex. P 17 and some other items, like, Gadda, pillow, six broken bangles etc. from the scene of occurrence, i.e., where Sonu was allegedly raped and murdered. These recoveries were made on March 16, 1993, in the presence of Om Parkash, uncle of the deceased, Ashok Kumar, an independent witness and Kiran Kumar, who was heading a Crime team that was pressed into service immediately on receipt of information with regard to death of Sonu. These three witnesses, once again, have fully supported the prosecution version. The prosecution also proved arrest of the appellant on March 25, 1993 when he was produced by PW 5 Sajjan Kumar before the police. On his disclosure statement, Ex. PS, recovery memo, Ex. PS/1 was prepared which was attested by same very Ashok Kumar, who is a witness of the recoveries, as mentioned above, and Munshi Ram, the investigating officer, who was examined as PW 14. At the instance of the appellant, chappals, Ex. P1 and P2, necklace, Ex. P3, bangles, Ex. P4 to P 11, ear ring Ex. P12, belonging to the deceased and one underwear, Ex. P6, belonging to the appellant, were recovered. An Executive Magistrate (Tehsildar), who was examined as PW 12, deposed with regard to identification of the recovered items by the parents of the deceased. He also tendered his report, Ex. PN/1. The prosecution also examined Smt. Sheela, PW 11, owner of the room, stated to have been rented to the appellant, where this ghastly crime was committed. Munshi Ram, Sub Inspector, who conducted the entire investigation of the case, right from the recording of statement of father of the deceased upto putting the challan in Court, was examined as PW 15. The prosecution also relied upon the evidence of photographer, who was examined as PW 2 and Kanwar Pal, PW 4, who prepared site plans, Ex. PD and PD/1.

On the strength of the evidence, referred to above, learned Sessions Judge, seized of the matter, returned a positive finding of guilt against the appellant on both counts, i.e., rape and murder and sentenced him in the manner fully detailed above.

Mr. Hooda, learned counsel representing the appellant, at the very outset contends that PWs 10 and 13 who are stated to have last seen the deceased in the company of appellant, have been simply introduced with a view to prop up the prosecution version. While elaborating his contention, it is stated that when FIR was lodged, father of the deceased had not suspected any one, even though he had stated that he did suspect two persons but he did not name them. So was the position when inquest report was prepared. Learned counsel, with a view to take his argument to its logical end, further contends that since it has come in the evidence that Om Parkash was present at the time when inquest report was prepared, had he seen the deceased in the company of appellant on a day preceding when her dead body was recovered, he must have disclosed that he had so seen the appellant with Sonu. But he did not mention a word with regard to appellant and that in itself is sufficient to prove that a story was coined after the arrest of appellant and he was falsely involved in this case. Insofar as PW 10 Roshni is concerned, it is being argued by learned defence counsel that even though a proclamation was made in the village by beat of drum on the day of occurrence itself that Sonu was missing, Roshni, who might have also come to know about this, did not report the matter to the police that Sonu had come to her shop and she was seen in the company of the appellant. We find absolutely no merit in the aforestated contention of the learned counsel. Statement of Om Parkash, PW 13 was recorded on March 16, 1993 itself wherein he had clearly mentioned that he had seen the appellant in the company of Sonu on the preceding day. It is possible that at the time when inquest report was prepared, he had not mentioned the said fact taking it to be inconsequential as no body could expect that a man of 25 years, simply on account of the fact that he was talking to a child of 78 years, would dare to commit such a heinous crime. In any case, as mentioned above, his statement with regard to last seen was recorded on March 16, 1993 itself and not after the arrest of appellant, as suggested by the defence counsel. No question at all has been put to Roshni, PW 10, from where it could be made out that she had heard the proclamation made in the village by beat of drum. That apart, as mentioned above, it may not have struck to Roshni at all that simply on account of the fact that appellant, who was offering toffees to a child of 78 years, may ultimately commit a crime of this intensity. In any case, her statement too was recorded on March 16, 1993. It is then contended by learned defence counsel that crime team was ordered to be arranged immediately when the FIR was recorded. How could that be done when the needle of suspicion had not turned on the appellant, also contends the counsel. In the same strain, it is being argued that there was no question at all for the police to check the scene of crime, i.e., the room stated to have been rented to the appellant, on the same very day i.e., March 16, 1993 as by that time no suspicion had turned on the appellant. We find this contention of the learned counsel also to be devoid of any merit. The kind of crime that came to be noticed by the police necessarily involved pressing into service a crime team. In fact, we find that contention of the learned counsel turns against the appellant as it is only when the accused was not known that the crime team could be pressed into service. If, on the other hand, it was known to the police that appellant is involved in the crime, the investigating officer might have straightaway gone to his house where he was residing or made an attempt to arrest him.

The next contention of the learned defence counsel is that the appellant was unemployed and had no source of income. It has come in evidence that father of the appellant owned a house in the same locality and that being so, the prosecution version that the appellant had rented a house/room belonging to Sheela, PW 11, is only a madeup affair so as to pin down the appellant with the commission of crime. It is also the contention of learned counsel that in any case it is proved that the crime was not committed in the room said to have been rented by the appellant. In fact, recovery of Gadda, broken bangles etc. was made from the portion occupied by the son of owner, Sheela. We find no merit in this contention of the learned counsel. The owner of the house/room has stepped into the witness box. She has categorically stated that she had rented out the house/room belonging to her to the appellant. In teeth of the statement made by Smt. Sheela, owner of the house and which statement could not be faulted as nothing substantial could be brought about from her during crossexamination, the mere fact that appellant was unemployed, or that his father also owned a house in the same vicinity, would not mean that the appellant had not rented the house/room. That apart, it has come in the evidence of PW 5 Sajjan Kumar that the appellant was not a man of very clean habits as on earlier occasions as well, police had made enquiries about him from him. It is possible that father of the appellant had not permitted him to stay in his house or, may be, of his own, as he was a man of shady character, had himself rented a room away from where his father was residing so that no body comes to know the activities in which he was indulging. Insofar as scene of crime being house/room belonging to son of the owner is concerned, suffice it to say that it is the adjoining portion which was rented out to the appellant and the son of owner had died two years prior to the date of occurrence. At the time of commission of crime, the room, earlier occupied by the son of owner, was lying vacant and the appellant had an easy access to the same. Learned counsel further contends that as per the statement of the doctor, who conducted post mortem on the dead body of Sonu, Salwar which she was wearing, was not stained with blood whereas as per the report of the Chemical Examiner, the Salwar was having blood stains. We are afraid, nothing hinges upon this small discrepancy and, may be, the doctor who conducted post mortem on the dead body of Sonu, did not notice the blood stains on the Salwar. Learned counsel has also criticised the way and manner the articles recovered on the disclosure statement made by appellant, were identified before the Tehsildar. It is the contention of the learned defence counsel that identification should have not been arranged in the police station. With a view to keep the police influence out of consideration, Tehsildar should have called the police instead in his office or else where. There is no merit in this contention of the learned counsel as well as it is not the place where identification is arranged that is important but the way and manner it is carried out. We find no deviation from the procedure in arranging the identification and the actual identification of the articles made by the parents of Sonu before the Tehsildar.

Learned counsel has also endeavoured to show that the appellant had made no extra judicial confession before Sajjan Kumar, PW 5. It is being argued that the Municipal Commissioner was no relation of the appellant and he was not a person before whom the appellant was likely to repose confidence particularly when the appellant had opposed Sajjan Kumar in elections. This contention of the learned counsel also has no merit. Sajjan Kumar, PW 5 was living in the same locality where the appellant was residing. He was Municipal Commissioner and a man of authority. The appellant could well repose confidence in him. Insofar as appellant opposing Sajjan Kumar in elections is concerned, it may be mentioned that it is only a suggestion of the appellant which has been denied and there is no proof that the appellant had actually opposed Sajjan Kumar in the elections to the office of Municipal Commissioner. Further, the appellant was not belonging to any political party or a leader in his own way so as to influence the voters.

The last contention of the learned counsel is that the Chemical Examiner and Serologist have left the column with regard to blood group as blank and in a case of this kind, group of blood that was found at quilt, pillow and other articles recovered from the scene of crime, ought to have been matched with the blood stains noticed on the shirt and Salwar of the deceased. This small lapse on the part of the prosecution, in our view, could not detract from its version. Overwhelming evidence has been brought on records of the case to show that the appellant is the one who, for his lust alone, first raped Sonu and then murdered her. We have also discussed the statement of Sajjan Kumar, before whom the appellant made extra judicial confession. It is settled law that if the Court believes the witness before whom confession is made and it is satisfied that confession was voluntary, then in such a case conviction can be founded on such evidence alone. However, in the present case, extra judicial confession has been corroborated on many counts. In Maghar Singh v. State of Punjab, 1975 Crl. LJ 1102, the Apex Court held that "the evidence furnished by the extrajudicial confession made by the accused to witness cannot be termed to be a tainted one and if corroboration is required, it is only by way of abundant caution." The prosecution has proved the guilt of the appellant beyond shadow of reasonable doubt. The evidence that has been brought on records of the case, even though the same is circumstantial, leads to only one hypothesis, i.e., that the appellant firstly raped and then murdered Sonu.

The appellant, however, has been convicted on two counts, referred to above and sentences awarded to him have been ordered to run consecutively. The appellant was a young man of 25 years when he committed the crime and even though there is some evidence that he was indulging in some bad activities prior to commission of this crime, prosecution has not been able to bring about that he had actually committed some crime earlier. This is his, thus, first crime. We are convinced that ends of justice would be met if the sentences awarded to the appellant by the learned Sessions Judge are ordered to run concurrently. So ordered. But for this modification, we uphold the order of conviction and sentence recorded by the learned Sessions Judge and dismiss this appeal.