Delhi High Court
Gian Singh & Anr. vs The State on 21 December, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved On : 15.12.2009
% Date of decision : 21.12.2009
+ CRL. A. No.43 of 1996
GIAN SINGH & ANR. ...APPELLANTS
Through: Ms.Meena Chaudhary
Sharma, Advocate
for appellant No.2.
Appellant No.1
died on 18.05.2002.
Versus
THE STATE ...RESPONDENT
Through: Mr. Sunil Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
SANJAY KISHAN KAUL,J.
1. Ms.Rani, appellant no.2, used to reside in a cluster of
jhuggis known as Nangla Machi located near the Old
Railway Bridge on the banks of river Yamuna. PW-
9/Chandrawati was also living in the same cluster.
2. It is the case of the prosecution that appellant No.2/Rani
had an affair with appellant No.1 which was known to PW-
9/Chandrawati. PW-9/Chandrawati had confided about
this fact to her husband PW-8/Devi Ram who in turn
informed the father of appellant No.2/Rani Thakur Om
Prakash, which resulted in great annoyance to both the
appellants.
3. On 10.05.1990, PW-1/Kumari Sanju, who was aged about
eight years then, brought Harkesh, aged about a few
months, the son of PW-9/Chandrawati, from her mother to
play around with him in the cluster of jhuggis. Appellant
no.2/Rani knew PW-1/Kumari Sanju and approached her
with a request to accompany her to the jungle as
appellant no.2/Rani wanted to ease herself. PW-1/Kumari
Sanju accordingly accompanied appellant no.2/Rani and
carried the child Harkesh with her. Appellant no.2/Rani
was carrying a can of water which spilled on the way and
she asked PW-1/Kumari Sanju to go and fetch some more
water. It is also the case of the prosecution that on PW-
1/Kumari Sanju's refusal, appellant no.2/Rani slapped her
and snatched the child from her and told her to go and
fetch some water. However when PW-1/Kumari Sanju
came back with the water, she found that appellant
no.2/Rani was missing with the child. A frantic search
produced no result and thus the parents of Harkesh, PW-
9/Chandrawati and PW-8/Devi Ram were informed about
the same.
4. The aforesaid incident resulted in lodging of a report by
PW-8/Devi Ram indicating that he suspected the hand of
both Gian Singh/appellant no.1 and Rani/appellant no.2 in
the kidnapping of his child due to prior acrimony. On the
complaint of PW-8/Devi Ram a case under Section 363 of
IPC was registered and assigned to SI Bachan Singh (PW-
22) for investigation. Neither appellant no.1/Gian Singh
nor appellant no.2/Rani nor the child could be located.
Search was carried out of the room in occupation of
appellant no.1/Gian Singh from where some photographs
were recovered. It is only after about a month and a half,
on receipt of some information, that appellant no.1/Gian
Singh and appellant no.2/Rani were arrested on
25.06.1990 from Ring Road near bus stand Sarai Kale
Khan. On their interrogation, it transpired that Harkesh
had been taken away by them and he was dead. The
dead body of Harkesh was got recovered on the pointing
out of appellant no.1/Gian Singh from a nala in village of
District Gurgaon. The body of Harkesh was highly
decomposed and the skeleton was identified by PW-
8/Devi Ram, father of Harkesh.
5. Pursuant to recovery of the dead body, provisions of
Sections 120-B, 302, 364 and 201 r/w Section 120-B of
IPC were added.
6. On completion of investigation, challan was filed. On the
charges being framed under sections 120-B, 302, 364 and
201 r/w Section 120-B of IPC, both the appellants pleaded
not guilty and claimed trial. On the trial being completed,
in terms of the impugned judgment dated 02.02.1996,
both the appellants were convicted for offences
punishable under Sections 120-B of IPC, 364 r/w Section
120-B of IPC, 302 r/w Section 120-B of IPC and 201 r/w
Section 120-B of IPC and sentenced vide Order on
Sentence of the even date.
7. The appellants during pendency of the appeal were
granted bail. Appellant no.1/Gian Singh passed away on
18.05.2002 and the appeal qua appellant no.1/Gian Singh
abated and now the appeal survives only in respect of
appellant no.2/Rani.
8. The prosecution has examined 25 witnesses in the
present case. The testimony of the principal witnesses is
discussed hereinafter.
9. PW-22/SI Bachan Singh was posted at PS Tilak Marg at the
relevant time and was on patrolling duty when around 8
P.M. he was informed by PW-8/Devi Ram about his
missing child and his statement (ExPW12/A) was recorded
on which endorsement (ExPW22-A) was made and the
same was sent for registration of FIR No.157/1990
(ExPW2/B). PW-22/SI Bachan Singh, during the course of
investigation, recorded the statement of PW-5/Smt.Maya
Devi, who had seen appellant no.2/Rani taking away
Harkesh(deceased) on the date of occurrence while going
towards the Ring Road. It is PW-22/SI Bachan Singh, who
had ultimately arrested the two appellants and recorded
disclosure statement of appellant no.1/late Gian Singh
(ExPW8-B). The disclosure statement of appellant
no.2/Rani was also recorded as ExPW8/C. The dead body
of Harkesh at the pointing out of the appellant no.1 was
also recovered by the said police officials. The dead body
had a Tagri wrapped around the waist. Recovery of one
piece of cloth of the shirt of the deceased and a frock was
made at the time of recovery of skeleton which was sent
for post mortem. The site plan was got prepared at the
site.
10. The important testimony is of PW-1/Kumari Sanju who
was aged about 8 years at the time of incident and was
about 10 years when she was examined in the court on
03.03.1992. As per the Trial Court, the said witness gave
intelligent and cogent answers and her story was in line
with the statement made by PW-8/Devi Ram.
11. PW-4/Jamil is a vegetable vendor who used to sell
vegetables in DESU colony. He was met by appellant
no.1/Gian Singh on the fateful day at 5.45 A.M. They
were together for some time till he saw appellant
no.2/Rani coming with a child in her lap after which both
the appellants started looking for a three wheeler which
they could not get at the site and on reaching Gate No.1
of Pragati Maidan, they managed to get a scooter and
proceeded towards Ashram.
12. The prosecution also examined PW-8/Devi Ram and
PW-9/Chandrawati, parents of Harkesh. As per PW-
9/Chandrawati, the problem originally arose about 15
days prior to the incident when she met appellant
no.2/Rani while waiting for a bus. Appellant no.2/Gian
Singh met them there and after completing the daily
chores, photographs were clicked by a photographer
which fact was not liked by PW-9/Chandrawati and she
confided about the same in her husband. Since the news
travelled further to the father of appellant no.2/Rani, the
same, according to her, was not appreciated by the two
appellants.
13. The room where the two appellants were staying after
kidnapping the child was rented from PW-12/Inder Singh.
He affirmed to the fact that the two appellants were
staying there as husband and wife and stated that the
child was of their relative. The child was, however, not
found with them till about 15 days prior to the arrest of
the appellants. The factum of the two appellants living
together is also established by the testimony of PW-
15/Pritam Sharma, who was a co-tenant in the same
house where the appellants were staying. PW-20/Mohan
Lal, younger brother of appellant no.1 Gian Singh, has
denied any knowledge about any affair between the two
appellants though he has stated that the two appellants
got married while on parole. There are two doctors
examined in respect of the case of the prosecution. PW-
23/Dr.Jagdish Lal Chaudhary had referred the dead body
to be taken to Rohtak Medical College for post mortem.
PW-16/Dr.Basant Lal, conducted the post mortem on the
dead body of the deceased. He opined that the dead
body was in a skeleton form and was of a male child aged
about 10 months, but the cause of death could not be
established as it occurred about 2-3 weeks ago.
14. The plea of learned counsel for appellant no.2 was
that the case of the prosecution based on circumstantial
evidence did not have a complete chain of events and
there were missing links. She pleaded that PW-1/Kumari
Sanju was a tutored witness, who could not be relied
upon. PW-4/Jamil who was the person who had last seen
the deceased child with the appellants had failed to
identify the photo (Mark X-1). PW-3/HC Sheikher Lal, has
turned hostile. No independent witness had been when
the house of the appellant no.1/Gian Singh was searched.
Though PW-9/Chandrawati had referred to the fact that
the skeleton had no identification mark expect the fact
that he was wearing a Tagri of black colour having two
mankas and one small brass ghungroo, there was no such
mention of the same in the FIR recorded on the report of
PW-8/Devi Ram, father of the deceased. No independent
witnesses had been joined from the place where
recovery of the dead body of Harkesh was made. PW-
9/Chandrawati was alleged to be deposing only on
hearsay.
15. Learned counsel for appellant no.2, though a
common appeal was filed, sought to shift the focus on the
deceased appellant no.1/Gian Singh by contending that it
was appellant no.1/Gian Singh who got the dead body of
Harkesh recovered. This has some material bearing in
view of the endeavour of the learned counsel for
appellant no.2/Rani to contend that the case against
appellant no.2 at best was one under Section 365 of IPC.
16. Learned counsel for the State, on the other hand,
has strongly defended the judgment by contending that
the well reasoned order of the Trial Court records how the
prosecution has been able to complete the links in this
case which is based on circumstantial evidence. In this
behalf, learned counsel submitted that the circumstantial
evidence establishes the following:
i) The worthy testimony of PW-1/Kumari Sanju, albeit
a child, established the evidence of kidnapping as
the deceased child was taken away by appellant
no.2/Rani.
ii) The two appellants were seen with the child by PW-
4/Jamil when they left in a three wheeler scooter.
iii) Both the appellants were absent from their
respective places of residence for a long period of
time.
iv) Both the appellants were living together with the
child in Gurgaon and this fact is established by the
testimony of the landlord PW-12/Inder Singh and
another witness PW-15/Pritam Sharma.
v) The recovery of the skeleton of the deceased child
was at the instance of the appellant no.1/Gian Singh
and this recovery is proved by the testimony of PW-
7/Girdhari Lal, PW-8/Devi Ram, PW-13/SI Som Dev,
PW-17/HC Hukum Chand, PW-21/Const.Satish Kumar
and PW-22/SI Bachan Singh. PW-7/Girdhari Lal
proved the disclosure statement of the appellant
no.1/Gian Singh and witnessed the recovery of the
skeleton from Gurgaon. PW-8/Devi Ram and PW-
9/Chandrawati have proved the earlier quarrel while
PW-12/Inder Singh was the landlord and PW-13/SI
Som Dev of the Haryana Police was present when
the recovery of the skeleton of deceased Harkesh
was made. PW-15/Pritam Sharma was also a tenant
in the same property at Gurgaon, Haryana. PW-
21/Const.Satish Kumar is the witness to the
disclosure statement of appellant no.2/Rani as well
as to the recovery of the skeleton of the deceased
Harkesh and PW-22/SI Bachan Singh is the IO.
17. On examination of the evidence on record, we find
no force in the submissions of the learned counsel for the
appellant no.2/Rani.
18. A reading of the testimony of PW-1/Kumari Sanju
shows that she has withstood the cross examination and
has come out clean. She was undoubtedly eight years old
when the incident occurred and deposed when she was
about 10 years old. Her testimony is in consonance with
what she had informed PW-8/Devi Ram who had made the
report. She is the person who held the child when she
was asked to accompany appellant no.2/Rani when the
can of water being carried by appellant no.2/Rani spilled.
Despite her resistance, she was forced to go back and get
the water and the child was snatched by appellant
no.2/Rani from the said PW-1. On her return, she found
both the appellant no.2/Rani and child missing. PW-
4/Jamil thereafter saw both the appellants along with the
child. He accompanied appellant no.1/Gian Singh
whereafter appellant no.2/Rani along with the child had
joined them and three of them left in a three wheeler
scooter.
19. There is nothing brought on record in the statement
under Section 313 of Cr.P.C. by the appellants to explain
their absence over a period of one and half months from
their respective residence. Their whereabouts after being
apprehended were established by the testimony of PW-
12/Inder Singh who had let out the premises at Gurgoan,
Haryana to them as also a co-tenant PW-15/Pritam
Sharma. Both PW-12/Inder Singh and PW-15/Pritam
Sharma have deposed to the child being alive at that time
and playing around and thereafter not being seen. The
child was last seen with the appellants and it was for the
appellants to explain as to how the child died.
20. The appeal is common to both the appellants and
the endeavour of learned counsel for appellant no.2/Rani
to now shift the blame on the deceased appellant
no.1/Gian Singh cannot be accepted. In case the child
had died of any natural cause, it was the bounden duty of
both the appellants to have informed about the same.
They, in fact, hid the fact. The ostensible reason could be
that since they were apprehensive that the child may
become an instrument to establish the case of kidnapping
against the two appellants, he was put to death. The fact
remains that the child died while with the two appellants
and no explanation was forthcoming from these two
appellants.
21. We are also unable to accept the plea of there being
no identification of the skeleton of the dead body of the
deceased Harkesh. The factum of Tagri and Gungroo
helped in identification by PW-8/Devi Ram, father of the
deceased, of the dead body of Harkesh. The absence of
mentioning of these two items on the child at the stage of
lodging of report does not in fact negate the case of the
prosecution. The police officials and other witnesses, as
referred to above, have proved the recovery of the dead
body of Harkesh and at the behest of appellant no.2/Rani.
It is not as if the child is elsewhere or there is another
child since that aspect had to be explained by the
appellants who had taken away the child and were living
with him. It cannot be said that the complete link has not
been established or that the prosecution has not been
able to prove its case beyond reasonable doubt.
22. We are also unimpressed by the last argument
sought to be advanced as an alternative plea by the
learned counsel for appellant no.2 that at best a case of
only kidnapping was made out against appellant
no.2/Rani. This is predicated on shifting the case of
murder only on appellant no.1/Gian Singh. Where clear
facts are in evidence on record such a plea albeit
appellant no.2/Rani being a woman and long time period
having passed, has no place in criminal jurisprudence
when the legislature has given no such option to the
courts clearly setting out the consequences of conviction
for the offences in question.
23. We find that the present appeal is meritless and
dismiss the same.
24. Bail-cum surety bonds of appellant no.2/Rani stand
cancelled and appellant no.2/Rani is directed to surrender
before the Trial Court within a week.
SANJAY KISHAN KAUL, J.
December 21, 2009 AJIT BHARIHOKE, J.
dm
