Sanjiv Kumar vs State of Punjab

M.M. Punchhi, J.

This is an appeal by a teenagar Sanjiv Kumar. He is aggrieved against the judgment and order of the Sessions Judge, Hoshiarpur, dated 7.5.1987 whereby he was convicted for offences under Sections 367 and 302 of the Indian Penal Code and the sentences imposed thereunder.

The prosecution case was founded on the first information report lodged by Tarlok Chand (PW2). His son Rajiv Kumar aged about 11 was the victim of the crime He was a resident of village Dadial in district Hoshiarpur. The matter was reported at Police Post Saila Khurd by him at 11.20 a.m. on 12.8.1986. The accusation be made against the appellant was to this effect :

Rajiv Kumar was a student of Vth class. The day before, on 11.8.1986, at about 7.30 p.m., he saw his son Rajiv Kumar Standing near the shop of PW3 Ashok Kumar talking, to appellant Sanjiv Kumar and Paramjit (PW4). Ashok Kumar was present at his shop. Within his hearing he asked his son Rajiv Kumar to come a lone homewards. The appellant, however, responded that the three of them were going towards the fields for easing themselves and that he would leave Rajiv Kumar at the latter''s house. Within the seeing of Tarlok Chand, Rajiv Kumar, Sanjiv Kumar and Paramjit went towards the outskirts of the village. He however, went home. He waited for his son uphill 9.00 p.m. but his son did not return. He went to the houses of Sanjit Kumar, appellant, and Paramjit (PW4) but they were not found present in their Houses. Even on the morning of 12.8.1986, he made enquiries from the houses of Sanjiv Kumar and Paramjit but they were not available. Another attempt in the same light was futile. No clue could be found in the agricultural fields on search. It is then that Tarlok Chand laying suspicion on Sanjiv Kumar, appellant of having abducted his son Rajiv Kumar in order to commit sodomy on him and throwing somewhere after killing him that he went to Police Post Saila Khurd and gave statement Exhibit PD on the strength of which formal first information report was recorded at Police Station Garhshankar.

Statement Exhibit PD was recorded by Manjit Singh, Head Constable (PW8) at Police Post Saila Khurd. After having sent the statement to Police Station Garhshankar, he proceeded towards village Dadial alongwith Tarlok Chand, complainant. At the Bus Stand of village Saila Khurd he arrested the appellant at 1.00 pm. and took him to village Dadial. ASI Radha Krishan of Police Station Garhshankar reached Dadial at 1.20 p.m. to investigate the case. He interrogated the appellant already in custody. On interrogation, the appellant made a disclosure statement that he had kept concealed the dead body of Rajiv Kumar in the maize field of Jit Singh vide statement Exhibit PH. It was signed by the appellant and attested by two witnesses Kishori Lal and Om Parkash. The appellant then in consequence thereof got recovered the dead body of Rajiv Kumar which was taken into possession vide memo Exhibit PJ. The investigator prepared inquest reported Exhibit PG. The dead body was sent for postmortem examination. Plan of the place of the recovery of the dead body was prepared. It was noted therein that there were signs of dragging in the maize field of Jit Singh. The investigation was further taken up by ASI Harpal Singh.

On the second investigation of the appellant three days latter, on 15.8.1986, the appellant disclosed that he had kept concealed a vest. His statement Exhibit PK was recorded. As a consequence thereof, he got recovered a vest in the maize field of Santokh Singh in village Dadial vide recovery memo Exhibit P1.

Now reverting back to the stage of inquest report Exhibit PC, ASI Radha Krishan observed that on dead body there was a bluish mark around the neck, scratch mark on the left arm and an injury mark on the front side of the index finger of left foot which appeared to be cut by animals after death. He was of the view that sodomy had been committed upon the deceased. Further, he was of the view that due to the drawing of the body scratches were present on legs and feet and clothes worn were stained with blood. Still further he observed that there were bluish marks due to strangulation of neck with some cloth etc.

Postmortem of the dead body was conducted by Mr. Virender Kumar (PW1), Medical Officer, Civil Hospital, Garhshankar, on 13.8.1986, at 8.30 P.M. H.J. is physical observations were that there was a contusion present around the neck of half inch in width. The ligature mark was evident. Deeper dissection revealed underlying subcutaneous tissues contused and the muscle of the neck contused. There was fracture of the tracheal ring in cervical portion. The tongue was swollen and contused protruding in between the teeth. The injuries found on the person of the deceased were the same as observed by the investigator in the inquest report. However, there was one addition and that was the anus was patulous and both the sphincters were loose at the time of examination. The opinion as to the cause of death was asphyxia. No positive opinion was, however, expressed with regard to the suggestion of the commission of the offence of sodomy except that it was left suggestively as the anus was patulous and the sphincters were loose at the time of the examination. Perhaps the visible state of the anus of the victim led the investigator to suggest in the inquest that sodomy had been committed. No swabs were taken from the anus. No injury was found on the anus canal, perinaeum and thigh. No stain of blood or any other organic matter was found present around the Anu.

The appellant was sent up for trial. The prosecution besides examining. Dr. Virender Kumar (PW1) examined Tarlok Chand, first informant, as PW2 who deposed on the lines of his statement made in the first information report. His evidence basically suggested that the deceased was seen last in the company of the appellant and Paramjit PW. He was supported in that regard by Ashok Kumar (PW3) in front of whose shop the deceased, the appellant and Paramjit (PW4) were seen standing and conversing on 11.8.1986, at 7.30 p.m. He was also witness to the effect that the deceased was asked by his father Tarlok Chand PW to accompany him to their house and the appellant respondent that they were going to the fields to ease themselves and that the deceased would come later to his house as also that the aforesaid three had together gone towards the fields. Besides the aforesaid suggestive evidence, the eyewitness account was given by Paramjit (PW4).

Paramjit (PW4) was described in the first information report to be 11 years of age. However, in his deposition in Court, he put his age as 15 years. His version was supportive of the version of Tarlok Chand and Ashok Kumar PWs. with regard to the deceased being seen last in the company of the appellant and himself. Now therefrom, further version of Paramjit PW was that on the way towards the fields, the appellant put off his vest and tied it around his head. Thereafter Rajiv Kumar and Sanjiv Kumar sat in the field by the side of the Circular Road of the village in order to answer the call of nature and he sat at a distance of three or four Karams from them. Within his hearing the appellant asked Rajiv Kumar to allow him to have carnal intercourse with him. On the refusal of the deceased, the appellant and the deceased grappled with each other. The deceased was saying that he would tell his father. The appellant then tied his vest around the neck of Rajiv and strangulated him. Then Paramjit tied to intervene. The appellant threatened that if he told this to anybody, he would kill him too. Statedly the appellant after strangulating the deceased, dragged him towards the maize field and at that juncture Paramjit ran away. He did not go to his house in that night but he himself in the maize field due to the fear of the appellant. Next day, he appeared before the police and made his statement. He also made a statement before the Magistrate at Garhshankar, presumably a statement under Section 164 of Criminal Procedure Code. He was taken to the Police Station and he remained there for a day and then was let off. According to Paramjit, the deceased had not raised any cries or shrieks and he too had not raised any noise out of fear and even after having run away from the spot. He was not sure whether the deceased had died at the spot or not but when confronted with his police statement Ex.D.A. whether he had stated that the deceased had been strangulated to death, he offered no explanation. He denied the suggestion that he had killed Rajiv Kumar and that he had made a false statement as he was successful in getting himself released from the police through the intervention of his uncle and on the other hand had falsely implicated the appellant.

The recovery statement relating to the dead body of the deceased and the subsequent recovery of the dead body was witnessed and attested by Kishori Lal (PW5), the brother of Tarlok Chand complainant. Charan Singh (PW6) was a witness to the disclosure statement relating to the recovery of the vest and the consequent recovery thereof.

This was the sum total of the prosecution case on the strength of which the accused was convicted and sentenced.

The first question which crops up for consideration is whether the deceased was the subject of carnal lust and equally was the appellant responsible for it so as to justify his conviction and sentence under Section 367 of the Indian Penal Code ? We are of the view that there is no convincing evidence to conclude that the deceased was a victim of such crime. Suspicions in that regard can be no substitute of proof. In the first place, Tarlok Chand, PW. in first information report Ex.PD laid foundation thereof alleging that his son had been abducted by the appellant for sodomising and then being killed. And for that too, the culprit named was the appellant and not Paramjit PW, though the deceased had been seen in their company together and both were missing at the time when the first information report was suggested to have been recorded. The allegation was made at a time when the dead body allegedly had not been recovered. We are doubtful if this allegation could have found mentioning in the first information report without the dead body being recovered before hand and examined by the police. ASI Radha Kishan (PW9) in his request report was categorical that sodomy had been practised on the deceased. Why he came to observe that state from the visible observation of the dead body was perhaps due to the patulous condition of the anus, though not said in so many words in the inquest report. Dr. Virender Kumar, however, recorded such condition of the anus of the deceased and found both the sphincters loose at the time of the examination. But Dr. Virender Kumar did not opine that the deceased had been subjected to carnal intercourse. No injury was found present around the anus, perinaeum or thigh by Dr. Virender Kumar. Similarly he did not find any stains of blood or faecal or any organic matter around the anus. Dr. Virender Kumar was not asked whether the deceased had been subjected to carnal intercourse. No swabs were taken from the anus to discover spermatozoa which could be suggestive of carnal intercourse. The appellant was arrested at 1.00 p.m. on 12.8.1986 i.e. within less than 24 hours of the commission of the crime. He was not got examined by the prosecution to discover any injuries on his private parts or the presence of facial or any organic matter around his private parts. He was later examined by Dr. Virender Kumar on 15.8.1986 at 4.30 p.m. His medicolegal report Exhibit PE suggests that he was capable of performing sexual intercourse and his age was between 17 and 171/2 years. The evidence so collected and the evidence which was omitted to be collected together raises a doubt in our mind that the prosecution has failed to conclusively prove that the deceased was a victim of sodomy. Even the oscular version of Paramjit is silent on this point. His statement to the effect that the deceased and the appellant had grappled with each other and that the deceased had not raised cries or shrieks rather is suggestive that he did not see any carnal intercourse taking place. And the next moment, he had seen the deceased being strangulated to death and thereafter dragged towards the maize fields.

Thus from the aforesaid discussion, we are of the view that offence under Section 367 of the Indian Penal Code has not been proved to the hilt and accordingly we set aside the conviction and sentence of the appellant under this count.

Now on the acquittal of the appellant on the charge of section 367 of the Indian Penal Code, the next question which arises is what was the motive of the crime and whether Paramjit is a reliable witness. As is evident, there would remain no motive for the crime. The socalled suggestion of the appellant to the deceased to let him have carnal intercourse with him and on the latter''s refusal to submit and his threat to covey the same to his father would hardly be motive for strangulating the deceased to death. Even if it wsa so, the conduct of Paramjit PW is far from convincing. According to him, he had witnessed the deceased die. Even if some concession is to be given to Paramjit PW that he was afraid or stunned at that juncture, his next impulse would have been to go home at least. The very fact that he deliberately stayed away for the night and was not available for questioning by Tarlok Chand PW is a very suspicious conduct of Paramjit PW. Secondly, the fact he was arrested by the police and kept in the Police Station for one day is also a very suspicious circumstance. Thirdly, though there was an equal accusing finger against him for being seen last in the company of the deceased, he was suspiciously exonerated in the first information report by Tarlok Chand PW. His induction in the case, firstly, as a person last seen together, secondly, as a witness to the actual crime and thirdly, as a suspect goads us to discard his testimony against the appellant. On such discardance, there remains no direct evidence against the appellant and the prosecution case almost falls.

The suggestive recovery of the dead body at the instance of the appellant appears to us also very doubtful. The place of the commission of the crime was in the maize field of Jit Singh, which in the inquest report is shown close to the Circular Road encircling the village. If search for the deceased had gone on for the night of 11.8.1986 and the morning of 12.8.1986, the dragging marks and the trampling of the maize crops in the field could not have been left unnoticed by the search parties. It is also common knowledge that maize stalls are brittle and capable of cracking down with little resistance. They are not supple to withstand dragging of a load over them. Any damage to the crop would in no event have gone unnoticed. Further, the witness to the recovery Kishori Lal is the brother of the complainant. In other words, there is no independent witness to the recovery of the dead body at the instance of the appellant. In these circumstances, no credence can be given to the evidence of ASI Radha Kishan (PW9) with regard to this aspect of the case. So we reject the evidence of the recovery of the dead body at the instance of the appellant.

The recovery of the vest too deserves to be rejected. A vest per se is no weapon of offence. Except for its recovery, there is nothing to it which suggests in the form of blood stains etc. to have been used in the commission of the crime. Besides, it was recovered on 15.8.1986. This does not promote the case of the prosecution and appears to be a detail supplied by the investigating agency. So we reject the same as well.

The evidence of Tarlok Chand PW alone is not enough to conclude that the appellant committed the murder of the deceased. Though Tarlok Chand is aggrieved on account of the unnatural death of his son and may have all the suspicion against the appellant being responsible for the same, but on the evidence led by the prosecution we cannot sustain the conviction of the appellant under Section 302 of the Indian Penal Code. Accordingly, we acquit him of this charge as well.

For the foregoing reasons, this appeal succeeds. The appellant is acquitted of the charges. Fine, if paid, be refunded to him.