Krishan Kumar vs State of Haryana

Kuldip Singh, J.—By this single judgment, we shall dispose of CRA No. D-671-DB of 2002, filed by accused/appellant Krishan Kumar son of Om Parkash, CRA No. D-685-DB of 2002, filed by accused/appellant Joginder Singh and CRR No. 2242 of 2002, filed by Krishan Kumar son of Sukhbir Singh, against the same judgment and order dated 31.8.2002/4.9.2002, passed by the learned Additional Sessions Judge, Sonepat, vide which accused/appellants Krishan Kumar son of Om Parkash and Joginder Singh son of Zile Singh were convicted u/s 302 IPC read with Section 34 IPC and sentenced to undergo imprisonment for life each and fine of Rs. 1,500/- each, in default of payment of fine, to undergo further rigorous imprisonment for six months each. Both the accused/appellants were also convicted u/s 201 IPC read with Section 34 IPC and sentenced to undergo rigorous imprisonment for two years and fine of Rs. 500/- each, in default of payment of fine, to undergo further rigorous imprisonment for six months each. Both the sentences were directed to run concurrently. In CRA No. D-671-DB of 2002 and CRA No. D-685-DB of 2002, accused/appellants Krishan Kumar son of Om Parkash and Joginder Singh son of Zile Singh have challenged their conviction and sentence, whereas in CRR No. 2242 of 2002, Krishan Kumar son of Sukhbir Singh (complainant) has prayed for enhancement of sentence and payment of heavy compensation by the accused/appellants.

On 26.6.1999, at about 12:15 PM, Krishan Kumar son of Sukhbir Singh (complainant) approached Incharge, Police Post Kundli, District Sonepat and lodged a missing report (Ex. PM). In the said missing report, Krishan Kumar son of Sukhbir (complainant) stated that his younger brother Davinder @ Kala, aged about 18 years, was a student of 12th class in Jat School, Sonepat. Yesterday, i.e. 25.6.1999, it was their turn of water in the fields. At about 8:30 PM, his younger brother Davinder @ Kala went to the fields at Katlupur road near Vishavkarma Bhatta (brick kiln). His younger brother Govind had already gone to the fields. After watering the fields, Govind returned home, but Davinder @ Kala did not come back. When they inquired from Govind about Davinder, Govind told that Davinder had not gone to the fields. Thereafter, they started making inquiries in the village and from their relations. They have no suspicion on anybody nor they have any enmity. The description of Davinder was also provided in the DDR, stating that he was of "wheatish complexion, strong body, round face, light beard, height 5'' 8", aged about 18 years, wearing white shirt and white pyjama and hawai chappal". Krishan Kumar son of Sukhbir (complainant) undertook to produce the photograph of his younger brother Davinder and requested the police to search for his younger brother. ASI Rajinder Singh recorded DDR No. 12, dated 26.6.1999. It was further recorded in the DDR that after receiving the photograph, it will be sent to nearest police station for searching the missing person. The wireless message was also flashed to the nearest police posts/stations.

However, on 28.6.1999, Krishan Kumar son of Sukhbir (complainant) submitted an application dated 28.6.1999 (Ex. PC) to SHO, Police Station Rai, in which he stated that he had lodged a missing report about his younger brother Davinder at Police Post Kundli on 26.6.1999, stating therein that on 25.6.1999, in the evening, at about 8:30 PM, his younger brother Davinder went for irrigating the fields. His brother Govind was also in the fields, who had slept inside room at 11 O'' clock. In the morning, he (complainant) asked Govind about Davinder and was told that Davinder had not reached the fields. Then, he made search for his younger brother Davinder in the fields, wells, ponds and canals. However, Davinder was not traceable. He stated that his younger brother Davinder was studying in 10+2 in Jat School, Sonepat. Now, he has doubt that his younger brother Davinder has been abducted by Ranbir, Balwan, Ram Kumar, Satpal, Rambir, Samunder sons of Badam Singh, Narinder son of Piare Lal and Piare Lal son of Molar Jat, resident of Nehri with intention to eliminate him because on 29.5.1999, they had given beating to his father Sukhbir and chased Davinder with Jaili, but Davinder managed to escape. The matter was got patched up by the respectables of the village. However, the said persons were nursing grudge against them. In the complaint, the description of Davinder was also given as having "wheatish colour round face, strong body, wearing white kurta, pyjama and hawai chappal. A Hanuman picture tattooed on his arm and a mark of injury on his thigh. The height of Davinder was 5'' 8" and aged about 18 years". Request was made to trace out Davinder. ASI Rajinder Singh, Incharge, Police Post Kundli, Police Station Rai, recorded the police proceedings and sent the same to Police Station Rai for registration of a case u/s 364/34 IPC at about 6:00 PM.

In the meanwhile, on 28.6.2014, the police of Police Post S.B. Dairy, Police Station Narela Bowana recorded DDR No. 4, dated 28.6.1999 (Ex. PD/2) to the effect that on receiving intimation about the dead body lying in water at Western Yamuna Canal Bridge near Samaypur Badli, the police visited the spot. The dead body was taken out of the water. The dead body was wearing light yellow colour kurta and pyjama. There was no mark of injury on the dead body. Many people gathered at the spot, but the dead body could not be identified. The dead body was highly decomposed. There was a tattoo design of Hanuman on the right hand of the dead body. The dead body was sent to Mortuary, Sabzi Mandi, Delhi. The police also prepared the inquest report.

On 28.6.1999, Govind and Krishan sons of Sukhbir (brothers of deceased Davinder), on receiving the intimation about the dead body, visited Mortuary, Sabzi Mandi, Delhi, alongwith SHO, Police Station Rai. There, they identified the dead body to be of their brother Davinder son of Sukhbir.

During the course of investigation, on 3.7.1999, Mukesh @ Kala son of Azad Singh made statement (Ex. DD) to the police u/s 161 Cr.P.C., wherein he stated that on 25.6.1999, he alongwith Sharwan son of Ram Kishan and Davinder @ Kala son of Sukhbir were cheering and enjoying with each other. At that time, Davinder had told them that he was in love with Poonam, daughter of Balwan Singh and that the said Poonam had promised to meet him in the fodder plot in the evening. He further stated that on 25.6.1999, in the evening, at about 8:30 PM, he saw Krishan son of Om Parkash and Joginder son of Zile Singh (accused) going through short route. Now, he has suspicion that Joginder and Krishan together murdered Davinder in their fodder plot and thrown the dead body in the canal.

On 9.7.1999, Daya Nand son of Banwari Lal also produced accused Joginder Singh son of Zile Singh and Krishan Kumar son of Om Parkash before Inspector CIA, Sonepat and made the statement that both Joginder and Krishan son of Om Parkash had approached him and told him that on 25.6.1999, at about 8:30 PM, they had seen Davinder @ Kala son of Sukhbir Singh teasing their sister Poonam, daughter of Balwan Singh in the room for storing fodder. They gave a slap to Poonam and made her to leave the spot. Thereafter, they killed Davinder @ Kala by throttling his neck by putting chunni around his neck. Thereafter, the dead body was put in a gunny bag and loaded in the Ambassador car and thrown it in Delhi Canal after taking the same from Katlupur road. Both the accused were repentant and told Daya Nand that they have committed a mistake. Now, the police is searching for them and they should be produced before the police. Accordingly, Daya Nand took both the accused before the police and produced them before Inspector, CIA Staff, Sonepat.

During the course of investigation, accused Krishan Kumar son of Om Parkash suffered a disclosure statement (Ex. PF), in which he stated that on 25.6.1999, in the night, he and his brother Joginder had seen Davinder @ Kala with their sister Poonam in indecent condition. They gave 2/3 slaps to their sister and beat her. Thereafter, they put chunni around the neck of Davinder @ Kala and strangulated him to death. Joginder brought an empty gunny bag and put the dead body of Davinder in the said gunny bag. Thereafter, the gunny bag was loaded in the Ambassador car No. DIC-6073 and taken to the canal going to Delhi through village Katlupur. The gunny bag containing dead body was thrown in the canal. Krishan Kumar further stated that he can identify the plot of fodder where Davinder was murdered.

Accused Joginder Singh also made the similar disclosure statement (Ex. PG) with the addition that he stated that the chunni and purse of Davinder @ Kala containing a paper alongwith photograph has been kept concealed in a polythene bag by him in the bushes near the bank of river and he can get the same recovered. Accordingly, vide memo Ex. PG/1 and Ex. PH, both the accused identified the fodder room where they had committed the murder of Davinder @ Kala. Vide memo Ex. PK, accused Joginder Singh got recovered the chunni used to strangulate the deceased and purse of the deceased containing a form of hostel of Chottu Ram Zimidar Senior Secondary School. The same were taken into possession through recovery memo Ex. PK. The Ambassador car No. DIC-6073 used in the crime alongwith RC was taken into possession through recovery memo Ex. PL. The gunny bag containing some hair of the head, in which the dead body was found, was also taken into possession from the police of Police Post Shahbad Dairy, P.S. Narela Bowana. Police also prepared site plan (Ex. PQ) of the place of the fodder room where the murder of Davinder @ Kala took place. The police also prepared site plan of the place where the dead body contained in a gunny bag was thrown in the canal.

After the completion of investigation, the challan was presented in the Court against the accused.

Both the accused were chargesheeted u/s 364 read with Section 34 IPC, u/s 302 IPC read with Section 34 IPC and u/s 201 IPC read with Section 34 IPC. Accused pleaded not guilty to the charges and claimed trial.

In support of its case, prosecution examined as many as 17 witnesses.

PW1 Constable Inder Pal proved that he had prepared the site plan on 18.9.1999.

PW2 UGC Daya Kishan proved his affidavit Ex. PB.

PW3 ASI Raj Singh proved the receipt of memo (Ex. PC) dated 28.6.1999, endorsement (Ex. PC/1) and formal FIR (Ex. PC/2).

PW4 Dr. K. Goel, Civil Hospital, Delhi, proved the post mortem report of the deceased.

PW5 Head Constable Anup Singh proved the deposit of three parcels on 29.6.1999 with the office of FSL, Madhuban.

PW6 Inspector Inder Singh proved the recording of statement of Daya Nand and the interrogation of the accused. He proved the disclosure statements of accused, recoveries and other formalities of the investigation.

PW7 Daya Nand proved the extra judicial confession made by the accused and production of the accused before the police.

PW8 Azad proved that on 25.6.1999, he had seen both the accused taking out a gunny bag from their kotha, putting the same in the car and taking towards Katlupur village.

PW9 Krishan Kumar proved his missing report, complaint and identification of dead body.

PW10 Mukesh proved that on 25.6.1999, Davinder had told him about his love affair with Poonam and his proposed meeting in the fodder room with Poonam. He also proved that in the evening at 8:30 PM, he saw both the accused going towards the fodder room.

PW11 SI Bhagwan Singh proved that on 28.6.1999, on receiving intimation about the dead body lying in the canal near Samaypur Badli, he had fished out the dead body and prepared inquest report (Ex. PD/2). Thereafter, he had sent the dead body to Mortuary, Sabzi Mandi, Delhi. He also proved that later on, on the same day, the relatives of the deceased accompanied by the investigating officer had visited them and identified the dead body of Davinder, resident of village Nehri.

PW12 SI Rajinder Singh proved that on 28.6.1999, Krishan Kumar (complainant) had submitted a complaint (Ex. PC), on the basis of which formal FIR (Ex. PC/2) was registered.

PW13 Inspector Sube Singh proved that on receiving intimation from SI Bhagwan Singh, Incharge, Police Post Shahbad Dairy, P.S. Narela Bowana, he had visited Mortuary, Sabzi Mandi, Delhi, where the dead body of Davinder was identified by Krishan Kumar (complainant) and Govind (brothers of the deceased). He also proved other formalities of the investigation, regarding taking into possession the gunny bag and clothes of the deceased.

PW14 Inspector Ram Kalan proved that on 9.7.1999, Daya Nand had produced both accused before him. He also proved the interrogation of the accused and subsequent recoveries.

PW15 Sahab Singh proved that the Ambassador car No. DIC-6073 was financed by his financial company to Mohinder Singh, who had further sold the same to Naresh Kumar son of Om Parkash, resident of village Nehri. He further stated that after sale of the car, Naresh Kumar paid all the installments and he issued authority letter to him.

PW16 Constable Rajbir proved the delivery of special report (Ex. PC/2) to Illaqa Magistrate.

PW17 MHC Hawa Singh proved the DDR No. 23, dated 30.5.1999.

When examined u/s 313 Cr.P.C., accused Joginder Singh claimed that he is innocent and has been falsely implicated in this case. Accused Krishan Kumar son of Om Parkash pleaded that due to party fiction in the village, a false case has been planted upon him. All the witnesses are belonging to same family.

Accused did not lead any evidence in defence.

After hearing the learned Public Prosecutor for the State, learned counsel for the accused and going through the evidence, both the accused were convicted and sentenced aforesaid.

We have heard learned counsel for the accused/appellants, learned counsel for the revision petitioner, learned Additional Advocate General for the State and have also carefully gone through the file.

The statement of Dr. K. Goel (PW4) shows that when the post mortem on the dead body of deceased Davinder, aged about 30 years, was conducted on 29.6.1999, it was found that the dead body was in the state of decomposition. Maggots were present over face, neck, chest and abdomen. Any external injury was inconspicuous due to decomposition changes. The stomach contained about 3 or 4 ounces of semi-digested food. The cause of death was asphyxia as a result of pressure over the neck structure.

PW9 Krishan Kumar (complainant) proved the missing report and complaint to the police and also stated that he had identified the dead body of his brother Davinder on 28.6.1999.

Mukesh (PW10) son of Azad has deposed that on 25.6.1999, at about 2:00 PM, he was gossiping with Davinder (deceased) and Sharwan. There, Davinder had told him that he is in love with Poonam daughter of Balwan and she had promised to meet him in the evening in the passage of Katav wala in a fodder room. He further stated that on the same day, at about 8:30 PM, when he was returning from the fields, he saw accused Joginder and Krishan Kumar going towards the fodder room.

Another material witness is Azad (PW8). He stated that on 25.6.1999, he had seen accused Joginder and Krishan loading a gunny bag in their old Ambassador car from their kotha and taking the same towards Katlupur village.

Daya Nand (PW7) has deposed that on 9.7.1999, he was sitting in his baithak (drawing room). Accused Joginder and Krishan came to him and told him that they had committed the murder of Davinder and thrown the dead body in the canal. They further disclosed that on 25.6.1999, they had gone to the fodder room of Zile Singh where they had found Poonam and Davinder in a compromising position. They gave beatings to Poonam and sent her away after snatching her chunni. Thereafter, they strangulated Davinder with the said chunni. Thereafter, the dead body was put in a gunny bag and loaded in the Ambassador car and thrown in the Delhi Canal. He (Daya Nand) also stated that he had produced both the accused before Incharge, CIA Staff, Sonepat, as requested by the accused.

Inspector Inder Singh (PW6) proved the interrogation of both the accused and identification of the place of crime at their instance. He also proved the recovery of chunni, purse and a paper containing the photograph of deceased at the instance of accused Joginder. The accused also identified the place where the dead body was thrown in the canal. To the same effect is the statement of Inspector Ram Kalan (PW14).

The learned counsel for the accused/appellants has vehemently argued that in the initial complaint to the police, accused were not named and some different persons were named. However, during the investigation, accused/appellants have been falsely involved in the case.

The contention has been countered by the learned Additional Advocate General for the State by saying that though, the complainant had suspicion on some other persons, but the police, during the investigation, found entirely different story and, therefore, accused were arrested. It has been argued that the deceased was seen with their (accused''s) cousin sister Poonam in a fodder room in a compromising position. Thereafter, the accused beat up Poonam and snatched her chunni, with which the deceased was strangulated. Then, the dead body was put in a gunny bag and taken in the Ambassador car and thrown in the canal going towards Delhi through Katlupur village. The place of crime was not known to the police and was identified by the accused. The accused also identified the place where the dead body in a gunny bag was thrown in the canal.

The learned counsel for the accused/appellants has argued that Daya Nand, Azad as well as Mukesh are the relations of the complainant party. It has been argued that Daya Nand had admitted in cross examination that he is the Tau of deceased Davinder. However, he also volunteered that accused are also related to him from the same pedigree. He stated that accused Joginder is grandson of Daani, who is father of Chhotu. The statement of Daya Nand shows that he is not close relation of the complainant party, but is known to both the parties. Therefore, Daya Nand could be the proper person before whom the accused could make extra judicial confession and ask him for help in production before police.

Regarding Azad (PW8), it is stated that he is father of Mukesh (PW10). Daya Nand (PW7) is the real brother of Azad. Despite the fact that Daya Nand, Mukesh and Azad are related to each other, it does not show that they were very close to the complainant. Mukesh has admitted that he belongs to the same thola as deceased. However, he also added that accused also belonged to his thola. Therefore, it cannot be said that witnesses Mukesh, Azad and Daya Nand are the party men or the close relations of the complainant only.

The learned counsel for the accused/appellants has further argued that Mukesh made the statement to the police on 3.7.1999 about the affair and meeting of deceased with Poonam on 25.6.1999, which is after 4/5 days of the cremation of the dead body. It is stated that if Mukesh knew about this fact, there was no reason why he did not tell the same to the police on the earlier occasion.

We are of the view that the complainant party had initial suspicion on some other persons. After the dead body of Davinder was recovered, the police might be collecting clues against the persons named in the complaint of Krishan Kumar (complainant). Therefore, nobody was aware about the love story of deceased with Poonam. It was only during investigation that when Mukesh, who happens to be the friend of deceased, was questioned, he disclosed about the love affair of deceased with Poonam and his meeting with Poonam in the fodder room on the day he went missing. It was thereafter that the needle of suspicion was pointed on both the accused and the police started searching for the clues. In the meanwhile, when the accused come to know that the police is after them, they appeared before Daya Nand (PW7), who is related to them as well as the complainant party and disclosed the true facts to him about their involvement in the murder of Davinder and requested him to produce them before the police. Therefore, the sequence of events shows that confession made by accused before Daya Nand is natural. Moreover, the place of occurrence was not known to anybody. The accused identified the place of occurrence. They also identified the place where the dead body was thrown in the canal. Later on, the dead body was recovered from Western Yamuna Canal near Samaypur Badli.

The learned counsel for the accused/appellants has further argued that as per the statement of the complainant, deceased was aged about 18 years only. However, in the post mortem report, the age of the deceased is mentioned to be 30 years.

We are of the view that deceased went missing on 25.6.1999. His dead body was put in a gunny bag and thrown in the canal. It was recovered on 28.6.1999 when the dead body was highly decomposed. Therefore, the facial features of the deceased were not recognizable and consequently, there can be error in recording his age. The fact remains that from the clothes, two brothers of the deceased, namely, Krishan Kumar (complainant) and Govind identified the dead body. There was also a tattoo design of Hanuman on the right hand of dead body, as stated in the complaint of Krishan Kumar son of Sukhbir. The same mark was found on the right hand of the dead body.

The learned counsel for the accused/appellants has argued that in the initial missing report, the tattoo mark was not mentioned. Later on, it was mentioned in the complaint to the police dated 28.6.1999, i.e. the day on which the dead body was recovered.

We are of the view that in the initial missing report, the general features of missing person were given and normally such minute detail of tattoo mark are sometime not mentioned. Therefore, the mentioning of tattoo mark of Hanuman two days later, is immaterial.

The learned counsel for the accused/appellants has further argued that in this case, Govind was not examined.

We are of the view that complainant Krishan Kumar has been examined. He has identified the body on 28.6.1999 itself in the Mortuary, Sabzi Mandi, Delhi. Therefore, non examination of Govind, another brother of the deceased, is immaterial.

From the foregoing discussion, we come to the conclusion that in view of the circumstantial evidence, discussed above, coupled with the reliable extra judicial confession made by accused, the guilt of the accused/appellants is proved beyond all reasonable doubts. Accordingly, their conviction and sentence u/s 302 read with Section 34 IPC and u/s 201 IPC is upheld. The separate appeals filed by both the accused/appellants are found to be without any merit. Consequently, both the appeals i.e. CRA No. D-671-DB of 2002, filed by accused/appellant Krishan Kumar son of Om Parkash and CRA No. D-685-DB of 2002, filed by accused/appellant Joginder Singh son of Zile Singh stand dismissed.

Both the accused/appellants, who are on bail, are ordered to be immediately arrested and committed to jail to undergo the remaining part of the sentence.

So far as, CRR No. 2242 of 2002, filed by complainant Krishan Kumar son of Sukhbir Singh is concerned, it is found that it is a routine crime and there is no ground to enhance the sentence of imprisonment for life to death. There is also no scope for enhancement of fine or imposing heavy fine. Accordingly, CRR No. 2242 of 2002 also stands dismissed.