Rajinder Parshad vs State of Punjab

A.S. Nehra, J.

Rajinder Parshad and Rajinder Singh have been convicted under Sections 302 and 201 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/ each or in default of payment of fine to undergo further rigorous imprisonment for four months each under Section 302 I.P.C. and to undergo rigorous imprisonment for three years each and to pay a fine of Rs. 200/ each or in default of payment of fine to further undergo rigorous imprisonment for one month each under Section 201 I.P.C. Both the substantive sentences were ordered to run concurrently. Rajinder Parshad has filed Crl. A.No. 199DB of 1992 and Rajinder Singh has filed Crl. A.No. 310DB of 1992 against their convictions and sentences. Both these appeals will be disposed of by this single judgment.

The prosecution case as disclosed by Ram Singh, PW to Sarup Singh ASI of P.S. Division No. 6, Ludhiana on 8.10.1990 at 3.30 P.M. in Quality Chowk, Simla Puri, Ludhiana is as follows :

"I have been residing in street No. 1, New Janta Nagar, Ludhiana for the last about 3 years and I have my own house. There is a house of my Behnoi (sister''s husband) Bharpur Singh son of Sucha Singh resident of Ram Nagar adjoining to my house. He has given all the rooms on rent. In his one room Rajinder Singh along with his son Sunil Kumar and Rajinder Parshad residents of Bihar reside. Rajinder Parshad and Rajinder Singh state that they are the relatives of each other. Sunil Kumar son of Rajinder Singh is aged about 7 years. All these persons have been residing there for the last about 2, 21/2 months. Rajinder Singh used to give beatings to his son over the matter that he does not speak to his step mother as well as step brothers and told that if he continued like that he would kill him. Today, at about 5.00 A.M. Sh. Rattan Singh son of Hari Ram, who is my neighbour called me and I was standing with him in the street. At that time Rajinder Singh with his son tucked to his shoulder and covering him with a piece of cloth was standing outside and Rajinder Parshad had a cycle with him. I asked him as to what had happened to Sunil Kumar. Then Rajinder Singh told that he was ill and they were going to take medicine for him. Thereafter he sat on the carrier of the cycle of Rajinder Parshad and went away. At about 8. A.M., when Rajinder Singh and his accomplice were seen present at their house, I asked them about Sunil Kumar and they told that Sunil had died and they had come after burying him. On being asked by me that they had not informed about (the death) in the Mohalla, both of them replied that they were getting late from the duty so they did not tell. I am sure that Rajinder Singh and Rajinder Parshad killed Sunil Kumar and buried (the dead body) at some place and that the sickness was an excuse. I have come to lodge a report. Action may be taken. You have recorded my statement. I have heard the same which is correct."

Ram Singh signed this statement Ex.PE and the same was forwarded by Sarup Singh ASI to the Police Station with his endorsement Ex.PE/1 and on its basis F.I.R. Ex.PE/2 was registered by Jagdish Singh, MHC at 4 P.M., on 8.10.1990. Sarup Singh, ASI went to the house of the accused and prepared site plan Ex.PW10/A and recorded the statements of the witnesses. Bharpur Singh PW produced Rajinder Singh and Rajinder Parshad before the police and when separately interrogated, Rajinder Singh and Rajinder Parshad accused suffered disclosure statements Ex.PW7/C and PW7/B, respectively, in pursuance of which they took the Investigator to Shivpuri Cremation Ground (Swarag Ashram) Dhuri Line, Ludhiana and from the pointed place, they dug out the dead body of Sunil Kumar and the same was taken into possession by the police vide memo. Ex.PW4/A, attested by the witnesses. The process of recovery of the dead body from the place of recovery at the instance of the accused, was got photographed from Narinder Kumar, Photographer (PW2) and the photographs are Ex.P5 to P8, in which both the accused are seen digging out the dead body of Sunil from the grave. The dead body of Sunil was subjected to postmortem examination by Dr. Pritpal Singh at 9.30 A.M. on 9.10.1990. Vide his report Ex.PA, the doctor had found that death of Sunil Kumar was due to asphyxia, which was antemortem in nature and sufficient to cause death in the ordinary course of nature. After completion of the investigation, the accused was sent to the court for facing judicial trial.

The prosecution examined Dr. Pritpal Singh (PW1), Narinder Kumar photographer (PW2), Rattan Singh (PW3), Ram Singh (PW4), Nand Lal (PW5), Gurcharan Singh (PW6), Bharpur Singh (PW7), Karam Chand (PW8), Harbans Singh (PW9) and ASI Sarup Singh (PW10) in support of the charge.

Dr. Pritpal Singh (PW1) has stated that on 9.10.1990 at 9.30 A.M., he performed postmortem examination on the dead body of Sunil Kumar s/o Rajinder Singh aged 7 years, identified by Bharpur Singh and Karam Chand, PWs and found that the mouth of the body was full of and smeared with sand and there was no external mark of injury, but hyoid bone was pressed and clotted blood was present in the trachea, and thyroid cartilage was pressed. In his opinion, injuries were antemortem and the cause of death was asphyxia, sufficient in the ordinary course of nature to cause death. He proved postmortem report Ex.PA and stated that he had initialled inquest Ex.PB on each page and had conducted postmortem on the dead body on police request Ex.PC. Narinder Kumar (PW2) is a photographer and he stated that on 8.10.1990, he was summoned by the police and then went to Cremation Ground to take snaps of the dead body, which was taken out by both the accused persons out of the ground, where it was lying buried. He stated that he prepared photographs Ex.P5 to P8 from negatives Ex.P1 to P4, which he had developed without retouching. He identified both the accused in Court and clarified that the dead body was recovered by these accused in his presence and they appeared in these photographs. He stated that he produced the negatives and positives before the police, who took the same into possession vide memo Ex.PD. He further clarified that photographs were taken at 2 P.M. or 3 P.M. Nand Lal (PW5) is Gardner in Shivpuri Cremation Ground (Swarag Ashram) Dhuri Line, Ludhiana. He stated that about 7/8 months back, Rajinder Singh and Rajinder Parshad, accused, had come to the cremation ground and had buried the dead body of a male child of 78 years age by digging a pit with a Kahi. He further stated that on the same day, at about 45 p.m. both the accused persons had come to the cremation ground and got recovered the dead body by digging out. He stated that the dead body was taken into possession vide memo Ex. PW4/A. He clarified that Rajinder Singh and Rajinder Parshad were the same persons who had buried the dead body and also got recovered on the same day. He stated that he was previously maintaining register of buried children, but then had stopped it for about one year, but regular register was being maintained by him in respect of the dead bodies which are given fire. He denied a suggestion that some mohallawalas had come to bury the child or that he had involved the accused at the instance of the police.

Gurcharan Singh (PW6) stated that on 8.10.1990, he was entrusted with the dead body of Sunil Kumar and he took the same to the doctor along with the police request Ex.PC for postmortem examination without tampering with the dead body.

PW4 Ram Singh had corroborated the prosecution version in its entirety, Rattan Singh (PW3) stated that Rajinder Singh and Rajinder Parshad had taken the dead body of Sunil from their house and had come back at about 8 A.M. He stated that he never saw the wife of Rajinder Singh and he does not know her name. He further stated that both the accused made disclosure statements to the police and got the dead body recovered in the presence of himself, Harbans Singh and Karam Chand. Ram Singh (PW4) stated that Bharpur Singh is her sister''s husband and that his house was in his control for giving on rent to persons. He stated that both the accused were living in his house on rent. He stated that at about 5/6 A.M. about 6/7 months ago, both the accused, with Rajinder Singh''s son had gone from their house on the cycles, saying that they were taking the child to the Hospital, but on return they had told that the child had died on the way. He denied that the child had been kidnapped by him and others to put pressure on Rajinder Singh for vacating the room or further that the child got strangulated during the scuffle, and so the child had been buried by mohallawalas.

PW7 Bharpur Singh stated that in one room of his house Rajinder Singh and Rajinder Parshad were residing that Sunil Kumar, deceased was a child aged 78 years who was son of Rajinder Singh, that about eight months ago, the police came to him that Rajinder Parshad and Rajinder Singh, accused never came to him nor did they make any extra judicial confession before him about the murder of Sunil Kumar. He was declared hostile and State counsel was allowed to crossexamine him. During crossexamination he stated that it is not a fact nor did he state that accused Rajinder Singh and Rajinder Parshad came to his house and had stated that they had strangulated Sunil Kumar or that they had buried his dead body in the cremation ground. Attention of the witness was drawn to the statement Ex.PW7/A portion A to A where it is so recorded. He further stated that it is not a fact nor he stated before the police that both the accused were produced by him before A.S.I. Sarup Singh. He further stated that it is correct that the accused were interrogated in his presence and in the presence of Karam Chand and on interrogation both the accused disclosed that they had kept concealed and buried the dead body of Sunil Kumar in the cremation ground and that they could get the same recovered. He further stated that it was also correct that the said disclosure statement Ex.PW7/B was signed by Rajinder Singh and attested by him and Karam Chand.

PW8 Karam Chand stated that both the accused had been residing in the house of Bharpur Singh; that in his presence and in the presence of Bharpur Singh PW, both the accused were separately interrogated and they made disclosure statements to the effect that they had buried the dead body of Sunil Kumar and offered to get the same recovered and Ex.PW7/B and PW7/C were recorded which were signed by accused separately and attested by him and Bharpur Singh. He further stated that both the accused led the police party to the cremation ground and got recovered the dead body of Sunil Kumar, which was taken into possession vide memo Ex.PW4/A. He further stated that at that time, when the dead body of Sunil Kumar was dug out by both the accused and produced, Nand Lal, Caretaker of the cremation ground was present and also attested memo Ex.PW4/A.

PW9 Harbans Singh stated that he has been residing in the same house in which accused were residing; that accused were living in one room; that he got up at 4 A.M., that at about 5 A.M., when he was sitting on the cot, he saw Rajinder Singh accused putting his child on his shoulder back with a piece of cloth covering the child; that the child was a male child aged 67 years; that in the meanwhile Rajinder Parshad, accused went out with a cycle in his hand; that Rajinder Singh, accused told him that the child was ill and they were taking the child to the hospital; that 11/2 or 2 hours thereafter Rajinder Singh returned and was washing his clothes in the house. He further stated that he asked Rajinder Singh as to how his son was; and that Rajinder Singh became silent for 1 or 2 minutes and then replied after sometime that the child had expired on the way. He further stated that he asked Rajinder Singh that he had his brotherhood and that he should have taken them and him to the cremation ground for burial of the child.

Statement of PW10 ASI Sarup Singh has been reproduced in the earlier paras of the judgment. In their statements recorded under Section 313 of Code of Criminal Procedure, the accused denied the circumstances appearing against them in evidence. They stated that they had been falsely implicated by Ram Singh and his relations who were putting pressure on them to vacate the house, so that they could sell it. No evidence in defence has been produced by the accused despite opportunities given for this purpose.

Mr. P.S. Mann, Senior Advocate, for the appellants has contended that PW7 Bharpur Singh has not supported the prosecution version to the effect that Rajinder Parshad and Rajinder Singh had made extra judicial confession before him about the murder of Sunil Kumar. In support of his argument, he has referred to the statement of Bharpur Singh, PW7, who has stated that Rajinder Parshad and Rajinder Singh, accused never came to him nor did they make any extra judicial confession before him about the murder of Sunil Kumar. Learned counsel for the appellant has further contended that this is a case of circumstantial evidence and the chain of circumstances is not complete because Bharpur Singh, PW7 has not supported the prosecution version to the effect that Rajinder Parshad and Rajinder Singh had made extra judicial confession before him. He contended that the appellants are entitled to be acquitted.

Mr. S.S. Dhaliwal, Deputy Advocate General, Punjab, has contended that Rajinder Singh is father of Sunil Kumar, deceased; that Rajinder Singh had been often beating Sunil Kumar, complaining that he did not speak with his step mother and step brothers; that Rajinder Singh, according to the prosecution used to say that if he continued like that then he would kill him. He further contended that Sunil Kumar was living in the room along with his father Rajinder Singh; that Rajinder Singh was expected to know all about his normal tenor of life; that on 7.10.1990 in the evening Sunil Kumar was in the room along with his father Rajinder Singh; and that in between the bed time and the morning, Sunil Kumar living in flesh and blood had turned into a corpse, not by reason of a silent killer such as poison, but by strangulation and his dead body was buried in the cremation ground on 8.10.1990 in the morning. He contended that if Rajinder Singh was innocent and somebody had walked into his house and strangulated his son Sunil Kumar, sleeping next to him, Rajinder Singh would know the killer as the slightest noise could disturb Rajinder Singh''s peaceful sleep. It is true that it is not necessary for Rajinder Singh, accused to prove his innocence, but what has happened in between night of 7th/8th of October, 1990 was a matter of fact, especially within the knowledge of the accused, the burden of proving which was on him under Section 106 of the Indian Evidence Act. In ''Amarjit Singh and others v. State of Punjab, 1989(1) RecentCR 18 , it has been held by this Court that in dowry death cases direct evidence is generally not available due to particular set up of homes in India and provisions of Section 106 of the Indian Evidence Act may be invoked when it is disproportionately difficult for the prosecution to establish the facts. It was further observed that a person in whose trust is the bride is required to give an account of how she had turned into a corpse because that fact would be especially within his knowledge. The observations of the Apex Court in Shambu Nath Mehra v. State of Ajmer; AIR 1956 Supreme Court 404, on Section 106 of the Indian Evidence Act read as follows :

"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience."

In his statement under Section 313 Cr.P.C., Rajinder Singh has not made the slightest attempt to inform the Court as to what had happened to Sunil Kumar. Therefore, we are convinced beyond any reasonable doubt that Rajinder Singh has committed the murder of his son Sunil Kumar and has attempted to cause his deadbody disappear with the intention to save himself from the punishment.

Rajinder Parshad was living with Rajinder Singh in the room, but he is not a relation of the deceased and he has no motive to cause death of Sunil Kumar and he is also not bound to explain that in what circumstances the deceased was strangulated in the room. Bharpur SinghPW7 has not supported the prosecution case.

In view of the above discussion, we hold that the prosecution has proved its case against Rajinder Singh, accused under Section 302 and 201 I.P.C. beyond doubt, whereas prosecution has failed to prove its case against Rajinder Parshad beyond reasonable doubt under Section 302 I.P.C.

In view of the above discussion, Criminal Appeal No. 310DB of 1992 Rajinder Singh v. State of Punjab is dismissed. Criminal Appeal No. 199DB of 1992 Rajinder Parshad v. State of Punjab is partly allowed. The conviction and sentence of Rajinder Parshad under Section 302 I.P.C. is set aside, but his conviction and sentence under Section 201 I.P.C. are maintained.