Dharam Pal vs The State Of Haryana

CRIMINAL APPEAL No. 1878 of 2009

DHARAM PAL .... Appellant(s) Versus THE STATE OF HARYANA ….Respondent(s) With CRIMINAL APPEAL No.1879 of 2009 CRIMINAL APPEAL No. 1880 of 2009 CRIMINAL APPEAL NO. 1377/2017 IN SLP (Crl.) No. 1745 of 2014

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted in Special Leave Petition (Crl.) No.1745 of

2014.

Accused Nos. 2, 3, 5 and 6 have filed these appeals

against the judgment of the High Court confirming their

convictions and sentences passed by the Sessions Judge,

Ambala. Accused No.1 did not prefer an appeal against the

judgment of the High Court. The appeal filed by Accused No.4

abated due to his death.

2. Bharat Bhushan Arora(hereinafter referred to as the deceased) Signature Not Verified Digitally signed by CHARANJEET KAUR Date: 2017.08.14 17:15:56 IST

son of Sh. Kanwal Nain Arora was the owner of Bharat Furniture Reason:

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Udhyog, Faridabad. At about 8:00 pm on 10.09.1996, the

deceased along with his employee Kamlesh (PW-6) left for

Delhi on his scooter to purchase toughened glass sheets for TV

showcases. He was scheduled to return back around

midnight. As he did not come home even at 2:00 am on

11.09.1996, his father along with Ashok Kumar started

searching for him. Initially, they went to the place from where

the deceased purchased the toughened glass sheets and were

informed that he left the shop at 11:00 pm after purchasing the

glass sheets. They went to the house of one Mahinder around

04:30 am and were informed that the deceased met him earlier

in the evening but left immediately thereafter. They were

frantically searching for the deceased and finally found his

dead body around 5:30 pm on 11.09.1996 lying in the bushes

on the left side of the road, at a distance of one km. from

Anangpur Chowk towards Faridabad. The scooter on which the

deceased was travelling was also lying 3-4 feet away from his

body. They observed an injury mark near the eye of the

deceased and blood on his face. They were surprised to find

the body at that spot as, earlier in the day at around 2:00 pm

they had searched the same area but there was no sign of a

body being there. Kanwal Nain Arora lodged a complaint at

2 Police Station, NIT Faridabad which was registered as an FIR at

8:00 pm on 11.09.1996 wherein it was mentioned that he

suspected Kamlesh to have committed the murder.

3. The investigation was initially carried out by A-4, Inspector

Ram Kumar who was assisted by A-5, Dharam Pal ASI and

A-6, Mawasi Ram ASI. On completion of the investigation, a

closure report under Section 173 was filed on 11.01.1997 in

which it was stated that the death was caused due to an

accident. As the father of the deceased suspected that his

son was murdered, he requested the Government of Haryana

to order an enquiry. The District Magistrate, Faridabad

ordered a magisterial enquiry to find out about the cause of

death of Bharat Bhushan. The magisterial enquiry revealed

that the deceased died due to Asphyxia. It was also found in

the enquiry that the deceased might have been killed and

his body was later placed on Surajkund-Faridabad road. As

there was a suspicion of involvement of police officers, the

report suggested that the investigation should be entrusted

to an agency other than the district police.

4. Ultimately, the investigation was entrusted to Central

Bureau of Investigation (CBI). An FIR was registered on

28.11.1997 under Section 302/34 by the CBI and further

3 investigation was commenced. Further investigation done

by the CBI revealed that the deceased who was returning

from Delhi along with Kamlesh, the pillion rider holding the

glass sheets, stopped the scooter 2 kms. short of Anangpur

Chowk at around 11:30 pm on 10.09.1996 to ease himself.

Immediately after restarting, Upper Graded Constable Abdul

Hai (A-1), Constable Kamal Singh (A-2) and Dharam Raj alias

Sarpanch (A-3) came from the opposite direction on a

motorbike and signalled the deceased to stop. A-1 and A-2

were in uniform and were armed with rifles. As the

deceased did not stop the vehicle, the accused turned the

motorbike and as soon as their motorbike came parallel to

the scooter of the deceased, A-2 Kamal Singh gave a blow on

the head of the deceased with the butt of his rifle. The

deceased fell down from the scooter on his left side and

became unconscious. Kamlesh Kumar also fell down and

received injury on his left knee. Most of the toughened glass

sheets were broken into pieces except two glass sheets

which were reduced in size. A-1 to A-3 got down from the

motorbike and finding the deceased unconscious, dragged

him to the nearby bushes. His scooter was also dumped at a

distance on the side of the road. When A-2 attempted to

4 assault Kamlesh (PW-6), he pleaded for mercy. Kamlesh was

spared on the condition that he would not disclose the

incident to anyone. He was instructed to sit on the pillion of

the motorcycle and was taken to the Sales Tax Naka at

Anangpur Chowk by A-1 to A-3. Kamlesh was made to hold

the two glass sheets and the helmet of the deceased.

Thereafter, he was taken to the Police Station where he was

illegally detained till 15.09.1996. It was also disclosed during

the investigation that the dead body of Bharat Bhushan was

dumped at the place where it was found between 4:00 to

5:00 p.m. on 11.09.1996 by A-1 to A-3. In the inquest

report, Ram Kumar (A-4) mentioned that there was an injury

on the right side of the head with blood marks and swelling

on the right eye. The post-mortem was conducted on

12.09.1996 by a team of doctors and as per their report

there was no mark of external injury on the body of the

deceased. The tongue had protruded between the teeth.

The lips were swollen and averted. Blood stained froth was

coming out of nostrils. Nails were cynoised. Larynx,

trachea, right lung, left lung, liver spleen, kidneys, mouth,

pharynx and oesophagus were found congested and the

bladder was found empty. After receipt of the report of the

5 chemical examiner, the team of doctors gave an opinion to

the effect that the cause of death was due to Asphyxia. It

was found during investigation that A-4 to A-6 manipulated

the investigation and submitted a closure report. The

recovery memo regarding seizure of blood stained earth

containing the blood of the deceased revealed that the blood

was of ‘A’ group whereas the blood group of the deceased

was of ‘B’ group. A-4 to A-6 conspired with A-1 to A-3 to

cover up the crime.

5. After a detailed consideration, the Trial Court held that A-1 to

A-3 intercepted the deceased with a motive to commit

robbery. They actually robbed one golden chain, two golden

rings and money which was being carried by the deceased.

A-1 to A-3 were also found guilty of having committed the

murder of the deceased. A-4 to A-6 were acquitted of

committing offences of murder and robbery but were found

guilty of committing offences under Section 218 read with

120 B IPC and Section 343 IPC. After convicting them, the

Trial Court sentenced the accused as follows:-

Conviction and Sentences Imposed Sr. No. Accused Conviction Sentences under Charges

1. A-1 Abdul Hai 1 302 r/w 34 IPC Imprisonment for life and fine of Rs.500/- In default

6 Imprisonment for 2 months.

2 394 r/w 120 B Imprisonment IPC for 7 years and fine of Rs.300/- In default Imprisonment for 2 months. 3 201 r/w 120 B Imprisonment IPC for 3 years and fine of Rs.200/- In default Imprisonment for 1 month. 4 218 r/w 120 B R.I. for 3 IPC years. 5 343 r/w 120 B R.I. for 3 IPC years. 2. A-2 Kamal 1 302 r/w 34 IPC Imprisonment Singh for life and fine of Rs.500/- In default Imprisonment for 2 months. 2 394 r/w 120 B Imprisonment IPC for 7 years and fine of Rs.300/- In default Imprisonment for 2 months. 3 201 r/w 120 B Imprisonment IPC for 3 years and fine of Rs.200/- In default Imprisonment for 1 month. 4 343 r/w 120 B R.I. for 3 IPC years. 5 218 r/w 120 B R.I. for 3 IPC years. 3. A-3 Dharam Raj 1 302 r/w 34 IPC Imprisonment @ Sarpanch for life and fine of Rs.500/- In default Imprisonment for 2 months. 2 394 r/w 120 B Imprisonment IPC for 7 years and fine of Rs.300/- In default Imprisonment for 2 months. 3 201 r/w 120 B Imprisonment IPC for 3 years and fine of Rs.200/-

7 In default Imprisonment for 1 month. 4 343 r/w 120 B R.I. for 3 years. IPC 5 218 r/w 120 B R.I. for 3 years. IPC 4. A-4 Ram Kumar 1. 218 IPC R.I. for 3 years. 2. 343 IPC R.I. for 2 years. 3. 218 IPC R.I. for 3 years. 4. 343 r/w 120 B R.I. for 3 years. IPC 5. A-5 Mawasi 218 r/w 120 B R.I. for 3 years. Ram IPC 6. A-6 Dharam Pal 1. 218 r/w 120 B R.I. for 3 years. IPC 2. 343 r/w 120 B R.I. for 3 years. IPC 3. 342 IPC R.I. for 1 year.

6. The appeals filed by the accused were dismissed by the High

Court and their convictions and sentences were confirmed.

After re-appreciating the evidence on record, the High Court

held that there is sufficient material to hold that the accused

were directly responsible for the death of the deceased.

According to the High Court, the fact that Kamal Singh (A-2)

gave a blow with the butt of his rifle on the head of the

deceased was proved. The High Court held that A1, A2 and

A3 made a valiant effort to cover up the incident by creating

evidence to show that the deceased died in an accident.

The High Court further held that A1, A2 and A3 removed the

body from the place where the incident occurred and

replaced it at the place where the body was found between

8 4.00 to 5.00 pm on 11.09.1996. They also smeared the face

and upper part of the body of the deceased with blood in

order to make it appear like an accident. The High Court

also found A1, A2 and A3 guilty of not making any attempt to

provide any help to the deceased who was injured, which

could have saved his life. A4 to A6 were found complicit of

tampering with the official record to help A1 to A3 escape

punishment.

7. It is no more res-integra that re-appreciation of evidence is

not required in a case where conviction has been confirmed

by the High Court. (See:Ramaniklal Gokaldas v. State of

Gujarat, (1976) 1 SCC 6, para.3). However, we have

examined the evidence on record and considered the

submissions made by both sides. The main contentions of

the Mr.S.Nagamuthu, learned Senior Counsel appearing on

behalf of some of the Appellants are:

I. That PW 6 is not a reliable witness in view of the fact

that he did not disclose the occurrence to anybody for

nearly one and half years. He also did not state

anything against the accused even in the Magisterial

Enquiry. PW 6 disclosed the facts, which form the

9 basis of the entire case of the prosecution, to the

investigating officer PW -71 only on 23.01.1998.

II. There is contradiction between the ocular testimony of

PW- 6 and the medical evidence. It is contended that

Asphyxia is not possible without any mark of violence

and there is no external injury found on the body of

the deceased contrary to the evidence of PW-6 who

stated that the deceased was hit on the back side of

his head with the butt of a rifle.

8. There is a detailed discussion in the judgments of the Courts

below about the illegal detention of PW-6 by the police and

the continuous threat held out by the accused to PW-6. The

Courts below relied upon the evidence of PW-6, being

conscious of the fact that PW-6 could not have stated

anything against the accused until the investigation was

handed over to the CBI. We are unable to accept the

submissions of learned Senior Counsel for the accused that

the evidence of PW-6 is unreliable. It is no doubt true that

PW-6 revealed the complicity of A1 to A-3 before PW-71 only

on 23.01.1998 though the incident was on 10.09.1996. It is

clear from the evidence on record that PW-6 was spared by

A1 to A-3 only on an assurance that he would not reveal

10 about the incident to anybody. It was only after the CBI took

up the investigation that he mustered strength to approach

the Investigating Officer PW-71 and revealed the facts

pertaining to the incident dated 10.09.1996. In this

background, the evidence of PW-6 cannot be eschewed from

consideration only on the ground that there was delay in

reporting his version to the Investigating Officer. We reject

the submission of learned Senior Counsel for the Appellants

that the evidence of PW-6 does not merit favorable

consideration.

9. As per the postmortem report, the cause of death is

Asphyxia. PW-25, Dr. P.S. Parihar, opined that the death

might have been caused because of obstruction of air into

mouth and nose by a cloth or pillow being put on his nostrils

or mouth. PW-6 deposed in his testimony that the deceased

was hit by a rifle butt on the back of his head by A-2 due to

which he fell down and become unconscious. The medical

evidence shows that there was no external injury on the

head of the deceased. Though it appears at the first blush

that there is a contradiction between the oral testimony of

PW-6 and the medical evidence, on a deeper scrutiny it is

clear that there is none. PW-6 deposed about the incident to

11 the extent he was aware i.e. the blow given by A-2, the

deceased falling down and becoming unconscious.

Thereafter, PW-6 was taken away by the accused and was

unaware about the events that took place later. He did not

state anything about the deceased losing his life. According

to medical opinion the death was due to Asphyxia. Dr.

P.S.Parihar (PW-25) deposed that the death might have been

caused by obstruction of air into the mouth and nose due to

a cloth/pillow being put on the nostrils and/or mouth.

Therefore, there is no variation between the oral and medical

evidence.

10. The following circumstances would unerringly point to the

guilt of Accused:

A. It is clear from the evidence on record that A-1 to A-3

tried to cover up their crime by filing a closure report to

the effect that the death of the deceased was due to an

accident.

B. PW-6 stated in his evidence that A-1 to A-3 caused an

injury to the deceased and thereafter dragged and

dumped him into the bushes besides the road. They

initially took PW-6 to the outpost at Anangpur Chowk and

12 later to Surajkund police station where he was illegally

detained till 15.09.1996.

C. PW-2, Kanwal Nain Arora, the father of the deceased

along with PW-10, Ashok Kumar and PW-12, Harish Arora

were frantically searching for the deceased from the

early hours on 11.09.1996 on Surajkund - Faridabad road.

They found the broken pieces of glass purchased by the

deceased on the Surajkund-Faridabad road. There was

no trace of the body till it was found on the same road at

5:30 pm on 11.09.1996.

D. The police had blocked the road between 02:00 pm to

04:00 pm for vehicle or traffic, presumably to enable the

accused to place the body at the spot where it was

found.

E. The inquest was not done at the spot but at the police

station by A-4. The blood stained earth allegedly

removed from the spot where the body was lying did not

match with the blood group of the deceased. There was

blood on the face of the deceased and his clothes, which

also did not match his blood group.

F. It has also come out in evidence that it rained in the

afternoon on 11.09.1996 but the body was found to be

dry.

13 G. Manipulation of the investigation by A-4 to A-6 in order to

shield A-1 to A-3 from punishment for their crime.

H. The deceased being unconscious and lying on the road

one km. from Anangpur Chowk at 11:30 pm on

10.09.1996 was to the exclusive knowledge of A-1 to A-3.

The absence of any explanation forthcoming from the

accused as to the circumstances in which the death

occurred, raises a presumption against them.

I. The disappearance of the body during the day time until

it was found at a place different from the site of the

incident at 05:30 p.m. would clearly show that A-1 to A-3

were responsible for the removal of the body in the night

and placing the body at the site where it was found

around 5:30 pm on 11.09.1996.

11. All the above circumstances would show that A-1 to A-3 are

responsible for the death, being the only persons having

knowledge about the deceased lying at the spot where he

was injured at 11:30 pm on 10.09.1996. Complicity of A-4 to

A6 has also been sufficiently proved. On the basis of the oral

testimony of PW-6 and the strong circumstances which point

to their guilt, we uphold the judgments of the Courts below.

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12. For the aforementioned reasons, the appeals are dismissed.

The accused are directed to surrender forthwith to serve out

the remainder of their sentences.

..……................................J [L. NAGESWARA RAO]

..……................................J [NAVIN SINHA] New Delhi, August 10, 2017

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