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Himachal Pradesh High Court · body

2009 DIGILAW 779 (HP)

RAJINDER SINGH v. STATE OF H. P

2009-09-09

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, Judge (oral)-Appellant Rajinder Singh has been convicted of offences, under Sections 302 and 392 IPC by the Sessions Court, vide judgment dated 27.12.2005. He is aggrieved by this judgment and has, therefore, filed the present appeal. 2. Case of the prosecution, as per evidence adduced by the prosecution, is like this. On 13th September, 2004 around 9 in the morning, deceased Harjit Kaur alias Harpreet Kaur, left her house in New Delhi, on the pretext that she was going to Amritsar for taking bath in the holy Sarovar of Golden Temple. Instead of going to Amritsar, she came to Shimla accompanied by the appellant, who owned a taxi and drove it himself. The appellant and the deceased checked in hotel Gulmarg, near Artrac Command Headquarters around 9 PM, on 13th September, 2004 itself. A form, prescribed by the hotel, was filled in, in which Delhi address of the deceased was mentioned. The form was signed by the appellant. The same is Ext. P-2. An entry was made in the register maintained by the hotel. The entry appears at Sr. No.532 and is marked Ext. PW1/A in register Ext. P-1. According to this entry, appellant booked the room on 13th September, 2004. He signed the entry and gave the address of the deceased as his own address. The deceased and the appellant stayed in the hotel (room No.128) on the night of 13th as also the night of 14th September, 2004. On 15th September, 2004, around 6 AM, appellant left the hotel, informing PW-3 Kanwar Singh, an employee of the hotel, who was present at the counter at that time, that he would be back soon and that the Madam was in the room. He handed over the key of the room to said PW-3 Kanwar Singh. 3. After the appellant left, PW-3 Kanwar Singh wanted to verify whether it was the appellant alone, who had gone away or the deceased had also vacated the room. So, around 6.15 AM, he asked the Chowkidar of the hotel, namely PW-5 Kalyan Singh, to see if the room had been vacated or it was still occupied. He handed over the key to the said Chowkidar. PW-5 Kalyan Singh opened the door with the key and noticed that television and the fan in the room were switched on and the lady was lying on the bed. He handed over the key to the said Chowkidar. PW-5 Kalyan Singh opened the door with the key and noticed that television and the fan in the room were switched on and the lady was lying on the bed. He thought that the lady was asleep. He relocked the room and reportedto PW-3 Kanwar Singh that the room was still occupied. Also, he returned the key to PW-3 Kanwar Singh. 4. On 15.9.2994, around 7 AM, PW-1 Bal Krishan, the owner of the hotel, went to the hotel. He was informed by PW-3 Kanwar Singh and PW-5 Kalyan Singh that the appellant (Rajinder Singh) had left the hotel around 6 AM, saying that he would be back soon, but had not returned and his wife (the lady accompanying him) was inside the room. When the appellant did not return till 8.30 AM, PW-12 Gopal Mohan Aggarwal asked his Manager PW-1 Bal Krishan, to contact the lady in the room, telephonically, by use of intercom and when PW-1 Bal Krishan gave a ring, there was no response. That made PW-12 Gopal Mohan Aggarwal and his Manager PW-1 Bal Krishan suspicious. They informed the police telephonically at 9.50 A.M. PW-13 Inspector Brijesh Sood, SHO, Police Station, Sadar Shimla, reached the hotel, accompanied by his subordinates. Room No.128 was opened. The lady was found lying on the bed with her face downward. The television and the fan were on. When the lady did not respond, the police people changed her side and noticed that she was dead. Froth was seen coming out of her mouth. 5. Statement Ext. PW12/A of PW-12 Gopal Mohan Aggarwal was recorded and sent to Police Station for formal registration of the case. Case was formally registered, vide FIR Ext. PW9/B. Inquest was conducted and report Ext. PW6/B was drawn. Dead body was sent to the hospital for postmortem examination. PW-6 Dr. H.S. Shekhon conducted the postmortem examination. He did not observe any apparent marks of violence on the dead body. Viscera were sent to Chemical Examiner, who opined that there were contents of alcohol in all organs, included in the viscera. The same were kidneys, spleen, intestines and liver. After the receipt of the Chemical Examiner’s report Ext. PW3/D to the aforesaid effect, PW-6 Dr. He did not observe any apparent marks of violence on the dead body. Viscera were sent to Chemical Examiner, who opined that there were contents of alcohol in all organs, included in the viscera. The same were kidneys, spleen, intestines and liver. After the receipt of the Chemical Examiner’s report Ext. PW3/D to the aforesaid effect, PW-6 Dr. H.S. Shekhon and another doctor, who had joined him in conducting the postmortem examination, gave the opinion that the cause of death was smothering, which could have been homicidal or accidental. The postmortem report is Ext. PW6/C and the opinion given by the two doctors is Ext. PW6/D. 6. PW-2 Trilochan Singh, husband of the deceased, was informed telephonically. He reached Shimla on 16th September, 2004. He identified the dead body. He told the police that his wife had been wearing golden ornaments, consisting of two Karas, a chain, two finger rings and a pair ear tops, but they were missing from the dead body. 7. Appellant was arrested at Delhi on 17th September, 2004. On 18th September, 2004, he was brought to Shimla. He was remanded in judicial custody, because it was proposed to arrange a test identification parade for getting the appellant identified from the employees of the hotel. Appellant refused to participate in the identification parade. Thereafter, a request was made to the concerned Judicial Magistrate for remanding him in police custody. Judicial Magistrate acceded to the request and remanded the appellant in police custody. He was taken to Delhi by PW-13 Inspector Brijesh Sood. At Delhi, he was interrogated at Police Station, Rajauri Garden. In the presence of PW-4 Gurmukh Singh and one Jasmir Singh, appellant made a disclosure statement, record of which is Ext. PW4/A, to the effect that he had kept hidden two golden Karas, a golden chain, two golden finger rings and a pair of golden tops in the store of his house in Vishnu Garden locality and could get the same recovered. He then led the police, PW-4 Gurmukh Singh and said Jasmir Singh to his house and produced from a heap of garbage, inside the store, a small sized polythene bag, containing the aforesaid golden ornaments. PW-2 Trilochan Singh, the husband of the deceased, was also present at the time of discovery. He identified the ornaments to belong to his deceased wife. 8. On completion of the investigation, appellant was challaned. PW-2 Trilochan Singh, the husband of the deceased, was also present at the time of discovery. He identified the ornaments to belong to his deceased wife. 8. On completion of the investigation, appellant was challaned. Learned Judicial Magistrate, in whose Court Challan was filed, supplied the copies of the Challan and other documents, filed therewith, to the appellant and committed the case to the Sessions Court. Appellant was charged with offences, under Sections 302 and 392 of the Indian Penal Code by the Sessions Court and on his pleading not guilty, was put on trial. 9. Prosecution examined 13 witnesses to bring the charge home to the appellant. Witnesses examined by the prosecution, included three employees and the owner of the hotel, in which the deceased and the appellant had stayed on the nights of 13th and 14th September, 2004. It also examined husband of the deceased, namely PW-2 Trilochan Singh. PW-4 Gurmukh Singh was examined to prove the making of disclosure statement by the appellant and discovery of ornaments pursuant to that statement. PW-6 Dr. H.S. Shekhon proved postmortem report Ext. PW6/C and the opinion Ext. PW6/D, regarding the cause of death. Investigating Officer PW-13 Inspector Brijesh Sood was examined to prove the inquest report and discovery of golden ornaments, pursuant to the disclosure statement made by the appellant. 10. Appellant admitted that he had stayed with the deceased in room No.128 of hotel Gulmarg, but denied that he had committed her murder or had removed/taken away her ornaments. He denied having made any disclosure statement, leading to the discovery of golden ornaments. He stated that the ornaments belonged to his mother. Appellant examined two witnesses DW-1 Manjit Singh and his brother DW-2 Sukhbinder Singh to prove his plea that the ornaments belonged to his mother and not to the deceased. 11. Learned trial Court did not believe the appellant’s plea. It concluded that the evidence adduced by the prosecution conclusively proved that the appellant was guilty of the offences he had been charged with and accordingly convicted him. He was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- for offence, under Section 302 IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.2000/- for offence, under Section 392 IPC. 12. He was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- for offence, under Section 302 IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.2000/- for offence, under Section 392 IPC. 12. We have heard the learned counsel for the appellant as also the learned Deputy Advocate General, representing the State, and perused the record. 13. Learned counsel for the appellant does not dispute the finding that the appellant and the deceased were together in the hotel, in question, for two nights, i.e. nights intervening 13th and 14th and 14th and 15th September, 2004, in view of the admission made by the appellant in his statement, under Section 313 Cr. P.C. Learned counsel also does not dispute the fact that the appellant disappeared from the hotel on the morning of 15th September, 2004. He, however, says that in the morning of 15th September, 2004, on seeing the lady dead in the room, the appellant became nervous and left Shimla for Delhi. He says that the ornaments, i.e. two golden Karas Exts.P-3, P-4, a golden chain Ext.P-5, two finger rings, Exts.P-6, P-7 and a pair of ear rings Ext.P-8 belonged to the mother of the appellant and not to the deceased. It is also submitted by the learned counsel for the appellant that the medical evidence does not prove that this is a case of homicidal death and that evidence, in fact, indicates that this could have been a case of accidental smothering. 14. We have considered the aforesaid submissions in the light of the evidence on record and the conduct of the appellant. Appellant’s plea is that the aforesaid ornaments do not belong to the deceased but to his own mother. To prove this plea, he examined two witnesses, namely, DW-1 Manjit Singh, who lives in his neighbourhood at Delhi, and his own brother DW-2 Sukhbinder Singh. The statements of the two witnesses are contradictory on the point as to who desired the ornaments of the mother of the appellant to be handed over to the police and under what circumstances. To prove this plea, he examined two witnesses, namely, DW-1 Manjit Singh, who lives in his neighbourhood at Delhi, and his own brother DW-2 Sukhbinder Singh. The statements of the two witnesses are contradictory on the point as to who desired the ornaments of the mother of the appellant to be handed over to the police and under what circumstances. According to DW-1 Manjit Singh, appellant had been brought to his house by the police and that on reaching his house the appellant pleaded with his mother to handover her ornaments to the police, because the police had been subjecting him to torture and had threatened that in case the ornaments were not produced, he will be killed. The witness further stated that upon this the father of the appellant ordered his son PW-2 Sukhbinder Singh to bring out the box containing jewellery of his mother and to give the ornaments to the police. 15. DW-2 Sukhbinder Singh, however, stated that he was instructed by his mother and not by his father, as testified by DW-1 Manjit Singh, to bring out the box, containing ornaments and handover the same to the police. Not only that the statements of the witnesses are contradictory, as illustrated hereinabove, but the fact that according to the testimony of these two witnesses, the box contained only that kind and number of ornaments, which were disclosed by PW-2 Trilochan Singh to the police to be missing from the dead body, also indicates that the plea of the appellant is not true. In his own statement, under Section 313 Cr.P.C., the appellant nowhere says that he had been subjected to torture by the police or threatened to be killed and/or he asked his mother to handover the ornaments because he was being tortured by the police or was under threat of being killed by them. Appellant did not examine his mother. No doubt DW-2 Sukhbinder Singh, the brother of the appellant, did state that his mother was unable to walk or move, but she could have been very easily examined, on commission, to prove the plea had it been factually correct. 16. Appellant did not examine his mother. No doubt DW-2 Sukhbinder Singh, the brother of the appellant, did state that his mother was unable to walk or move, but she could have been very easily examined, on commission, to prove the plea had it been factually correct. 16. Submissions made by the learned defence counsel that the appellant became nervous on seeing the dead body and, so, he left Shimla for Delhi, without checking out from the hotel, cannot be accepted, because the appellant himself did not take such a plea in his statement under Section 313 Cr. P.C. nor was it suggested to any of material witnesses of the prosecution. Suggestions were no doubt thrown to PW-1 Bal Krishan and PW-13 Inspector Brijesh Sood, Investigating Officer, but putting of this kind of suggestion to them meant nothing, because it is the appellant’s own case that he left Shimla, without informing anybody, and if it is so, PW-1 Bal Krishan was not supposed to be knowing whether he was looking nervous or not. Similarly, PW13 Inspector Brijesg Sood, Investigating Officer of the case, was not at the hotel, when the appellant left it on 15th September, 2004. So, he was also not in a position to say anything about the state of mind of the appellant. 17. The plea that the appellant became nervous, on seeing the dead body, is belied by the fact that he took away with him the ornaments of the deceased. Probably the deceased was wearing these ornaments, as testified by her husband PW-2 Trilochan Singh. Appellant removed the ornaments from the dead body. Even if it be assumed that the deceased was not wearing the ornaments and might have removed them before going to sleep, the appellant stole them before fleeing. A nervous person would not commit theft, because in that state of mind no vice, including greed, would come to mind. Appellant did not give his own address, while checking in the hotel, though he made the entry in his own name in Register Ext.P-1 as also in Form Ext.P-2. Instead he gave the address of the deceased. His conduct in not mentioning his own address in the Register and the Form, aforesaid, is indicative of his having preplanned to kill the deceased and to rob her of her belongings. 18. Instead he gave the address of the deceased. His conduct in not mentioning his own address in the Register and the Form, aforesaid, is indicative of his having preplanned to kill the deceased and to rob her of her belongings. 18. It is true that PW-6, Dr.H.S. Shekhon, has not given categorical opinion that this was a case of homicidal smothering and instead he and his colleague opined that it could have been a homicidal or accidental smothering but when the opinion is seen in the light of the rest of the evidence, particularly the recovery of the ornaments of the deceased from the appellant, it appears quiet unlikely that this was a case of accidental smothering. No doubt no marks/signs of violence were there on the dead body, but PW-6, Dr. H.S. Shekhon, very categorically stated that absence of such marks/signs could have been on account of the process of decomposition of the dead body having started or on account of smothering by some soft thing like pillow. The deceased was a young woman of 27/28 years. No doubt she had consumed liquor, as the report of Chemical Examiner indicates, but looking to the fact that the deceased was young and hale and hearty, which fact, we presume, on account of her having left her husband’s house in the company of a taxi driver, just to enjoy herself, she could not have died of accidental smothering. 19. For the foregoing reasons, we see no merit in the present appeal and the same is, therefore, dismissed.