Narendra Kumar @ Kallu And Anr vs State Anr
2021 Latest Caselaw 7329 Raj

                                             (1 of 34)                   [CRLA-862/2011]


          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR


                    D.B. Criminal Appeal No. 862/2011

        1. Narendra Kumar @ Kallu son of Ramsher, by caste Chamar,
          resident of Laharpar, District Azamgarh (U.P.), presently
          residing at Shanti Kutia Gandhi Colony, Kasturba Road,
          Rajpur Patiala (Punjab).


        2. Gautam Giri son of Lal Ji Giri, by caste Giri Gusai, resident
          of Jangal Kita Sen via Gauri Bazar, Tehsil Rudrapur,
          presently residing at House No.189, Ward No.7, Rajpura,
          Patiala (Punjab).
                                                                        ----Appellants
                                        Versus
        1. The State of Rajasthan


        2. Chandrapal @ Kalu son of Bhanwar Lal, by caste Valmiki,
          resident of village Girawadi, District Jhunjhunu, presently
          residing at House No.2, Kasturba Road, Rajpura (Patiala)
          [Approver witness].
                                                                      ----Respondents


     For Appellant(s)         :     Mr. Rajendra Soni.
     For Respondent(s)        :     Mr. Anil Joshi, Public Prosecutor.



               HON'BLE MR. JUSTICE SANDEEP MEHTA
           HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                                  JUDGMENT


    Judgment Reserved On                         :                   13/01/2021
    Judgment pronounced On                       :                   16/03/2021

     BY THE COURT : (PER HON'BLE MEHTA,J.)

Reportable

The instant appeal has been preferred by the accused

appellants being aggrieved of the judgment dated 14.9.2011

passed by learned Special Judge, SC/ST (Prevention of Atrocities)

(2 of 34) [CRLA-862/2011]

Act, Sriganganagar in Sessions Case No.53/2007 by which, they

were convicted and sentenced as below:-

 Conviction for                                  Sentences
 Offences under
    Sections
  302/120B I.P.C.      Life imprisonment with fine of Rs.5000/-
                       each in default 6 months' SI
  364/120B I.P.C.      10 years' R.I. with fine of Rs.2000/- each in
                       default, 4 months' S.I.

Both the sentences were ordered to run concurrently.

Facts relevant and germane for disposal of the appeal are

noted hereinbelow:

The complainant Babulal Paswan lodged a complaint

(Ex.P11) in the court of Chief Judicial Magistrate, Sriganganagar

on 22.6.2006 stating inter-alia that he was an auto-rickshaw

driver and that his wife Smt.Tara Devi used to do domestic chores

in various households for sustaining the family. They had five

children out of which, three were living in their village and other

two, namely Ajay and minor daughter Sunita, were living with

them in Ganganagar. On 14.6.2006, as usual, Sunita left his house

in the morning to carry out the domestic chores in other

households at Ganganagar, but she did not return till 10-11 A.M.

upon which, the complainant got worried and searched for her till

evening. On making enquiry in the neighbourhood, he received

information that Sunita had been seen with one Bhomli, her

husband and 2-3 other people near the house, where the

complainant used to reside earlier. He informed the concerned

police station about his missing daughter the very following day,

but no action was taken on his grievance and thus, he was

compelled to lodge the complaint in the Court. He prayed that his

(3 of 34) [CRLA-862/2011]

daughter should be traced out. The complaint was forwarded to

the Mahila Police Station Sriganganagar under Section 156(3)

Cr.P.C. for investigation where, F.I.R. No.55/2006 (Ex.P12) came

to be registered for the offences under Sections 363 & 366A I.P.C.

The investigation was assigned to Sub-Inspector Raghuveer Singh

P.W.26, who recorded statements of the complainant Babulal, his

wife Smt.Tara etc. Photograph of Sunita was collected and was

attached to the file (Ex.P17). During investigation, the finger of

suspicion pointed towards one Deepak Kumar @ Ashwani S/o

Kedar Prasad resident of Gangrohi Bazar, District Maharajgunj,

Uttar Pradesh. Fervent efforts were made to search him and the

missing girl but the same proved futile. Accordingly, a negative

Final Report with the conclusion that the missing girl could not be

traced out was submitted in the court of Chief Judicial Magistrate,

Sriganganagar. From where, the file was returned to the

Investigating Officer for further investigation. It may be stated

here that in the intervening period i.e. on 16.1.2007, the dead

body of an unidentified female with marked signs of violence was

recovered in the jurisdiction of Police Station Rajpura, Punjab. The

Investigating Officer of the present case suspected that the girl

found murdered in Punjab could be Sunita, daughter of the

complainant Babu Lal. Accordingly, file of inquiry proceedings

(Ex.P38) under Section 174 Cr.P.C. No.26/2007 drawn up at the

Police Station Rajpura, Patiala including the post-mortem report

and the photographs etc was collected. These documents were

attached to the file of the case at hand. Babu Lal and his wife

identified the photographs (Ex.P6 and Ex.P7) to be of their

daughter Sunita and on the basis of their statements, the

Investigating Officer concluded that the unknown female deceased

(4 of 34) [CRLA-862/2011]

found in Rajpura, Punjab was the missing girl Sunita. As per the

caste certificate, Sunita belonged to the Scheduled Caste category

and thus, the offence under Section 3(2)(v) of the SC/ST

(Prevention of Atrocities) Act was added to the case and

accordingly investigation was assigned to Kesarichand Jandu

(P.W.22) Dy.S.P. SC/ST Cell, Sriganganagar, who conducted further

investigation and concluded that the accused Deepak Kumar @

Ashwani, Narendra Kumar @ Kallu, Gautam Giri and Chandrapal @

Kalu had kidnapped and then killed the girl. The accused were

arrested in the following order:

  Name of the          Offence under Section                    Arrested vide
   Accused                                                         Memo

Chandrapal @ 363, 366A, 366, 364, 302 IPC Ex.P/1 Kalu and section 3(2)(v) SC/ST Act Date: 30.05.2007 Time: 11:00 AM Deepak Kumar @ 363 and 366A IPC Ex.P/47 Ashwani Date: 14.05.2007 Time: 06:15 PM Narendra Kumar 363 and 366A IPC Ex.P/48 @ Kallu Date: 14.05.2007 Time: 06:30 PM Gautam Giri 363, 366, 366A, 364, 302 IPC Ex.P/35 and section 3(2)(v) SC/ST Date: 25.05.2007 (Prevention of Atrocities) Act Time: 06:15 PM

Thereafter, interrogation was conducted and informations provided

by the accused under Section 27 of the Evidence Act were

recorded. Acting in furtherance of the informations provided under

Section 27 Indian Evidence Act by the three accused viz.,

Chandrapal @ Kalu (Ex.P2), Gautam Giri (Ex.P36) and Narendra

Kumar (Ex.P49), the place of incident was verified by the

Investigating Officer. The place where the weapon of offence was

concealed by Gautam Giri was also verified by the Investigating

Officer at the instance of the accused Chandrapal @ Kalu vide

Memo Ex.P5. On the basis of the information (Ex.P37) provided by

(5 of 34) [CRLA-862/2011]

Gautam Giri, the Investigating Officer claims to have recovered

the weapon of offence being an iron dagger which was seized vide

Memo Ex.P16.

The accused Chandrapal @ Kalu filed an application (Ex.P8)

before Dy. S.P./C.O. Sriganganagar for turning into State's witness

on which, sanction was sought from the District Superintendent of

Police, Srignaganagar (Ex.P27) and the statement of Chandrapal

@ Kalu was got recorded under Section 164 Cr.P.C. (Ex.P9). After

undertaking further investigation under the directions of the Chief

Judicial Magistrate, Sriganganagar, the Investigating Officer

concluded that the deceased Sunita used to do domestic chores in

various households in Sriganganagar. During this period, she came

in touch with the accused Deepak Kumar @ Ashwani, who was

doing the job of plaster of paris in Sriganganagar. On 14.6.2006,

Deepak Kumar @ Ashwani lured Sunita and took her away to Delhi

from where, both of them went to Noida and started living

together in a rented house. In January 2007, Deepak Kumar @

Ashwani deserted Sunita and went away whereupon, she started

living at the house of a girl named Tanu Soni. Narendra Kumar @

Kallu and Gautam Giri approached Sunita and took her into

confidence, assuring that they would arrange her marriage with

some one in Punjab. In the night of 15.1.2007, the accused

Narendra Kumar @ Kallu, Gautam Giri and Chandrapal @ Kalu

took Sunita to Sirhind Patiala Bypass Road giving her false

assurance that she would be married off. She was taken to a

secluded place, raped and suffocated to the extent that she

became unconscious. Gautam Giri slit her throat and thereafter, all

the three accused absconded. The girl's dead body was found on

16.1.2007 and accordingly a report No.26/2007 (Ex.P38), was

(6 of 34) [CRLA-862/2011]

registered under Section 174 Cr.P.C. at the Police Station Rajpura,

Patiala. Inquest inquiry was undertaken and the dead body was

subjected to autopsy. After concluding investigation, the

Investigating Officer proceeded to file a charge-sheet against the

accused as below:

Accused              For the offences under Sections
Deepak Kumar @ 363, 364, 366A and 376 I.P.C.
Ashwani
Narendra      Kumar 363, 364, 366A, 376, 302 and 120B I.P.C.
@ Kallu
Gautam Giri          364, 366A, 302, 120B I.P.C. and 3(2)(v) of
                     SC/ST (Prevention of Atrocities) Act.
Chandrapal @ Kalu 302 I.P.C.

So far as the accused Chandrapal @ Kalu is concerned, as

has been noted above, he had filed an application (Ex.P8) before

the Dy.S.P./C.O. Sriganganagar for becoming a State's witness.

The CJM Sriganganagar granted pardon to Chandrapal @ Kalu by

order dated 26.6.2007 (Ex.P46) on the condition that he would

make a truthful deposition regarding the incident in question

without any reservation upon which, name of Chandrapal @ Kalu

was added to the list of witnesses as an Approver. He was

continued to be detained in custody as per Section 306(4)(b)

Cr.P.C.

After the submission of the charge-sheet, the statement of

Chandrapal @ Kalu was recorded on oath under Section 306(4)(a)

Cr.P.C (Ex.P10). The case was then committed to the court of

Special Judge, SC/ST (Prevention of Atrocities) Act, Sriganganagar

where, charges were framed against the accused appellants in the

above terms. Charges were also framed against the accused

(7 of 34) [CRLA-862/2011]

Deepak for the offences under Sections 363, 364, 366A and 376

I.P.C. The accused denied the charges and claimed trial. The

prosecution examined as many as 27 witnesses and exhibited 52

documents to prove its case. The accused were questioned under

Section 313 Cr.P.C. and upon being confronted with the

circumstances appearing against them in the prosecution

evidence, they denied the same claiming that they had no

connection with any girl named Sunita and they did not murder

her. Chandrapal @ Kalu was inimical to them because of a

previous quarrel and thus, he had made a totally false deposition

and falsely implicated them in the offence. After hearing the

arguments of the Public Prosecutor and the defence counsel and

appreciating the evidence available on record, the trial court

proceeded to convict and sentence the appellants as above.

Hence, this appeal.

Shri Rajendra Soni, learned counsel representing the

appellants, vehemently and fervently contended that the entire

prosecution story is false and fabricated. The case against the

accused-appellants is totally based on the testimony of the

Approver Chandrapal @ Kalu, who is not a witness of sterling

worth by any stretch of imagination as he was inimical to the

accused persons from before and that is why he has given false

evidence against them in order to wreak vengeance. He pointed

out that the original complaint marked as Ex.P11, was presented

on behalf of Babu Lal by counsel Gokul Swami. The same counsel

Gokul Swami, fraudulently stepped forward to represent the

appellants in the proceedings under Section 306(4)(a) Cr.P.C.

when the approver's statement (Ex.P10) was recorded on oath by

the Magistrate. He pointed out that no cross-examination

(8 of 34) [CRLA-862/2011]

whatsoever was made by Gokul Swami from the Approver

Chandrapal at the pre-committal stage and thus, it is apparent

that the proceedings whereby, Chandrapal @ Kalu was examined

as an Approver by the CJM, Sriganganagar and was granted

pardon were fraught with fraud and bias causing serious prejudice

to the accused appellants and hence, the testimony of Chandrapal

@ Kalu is not reliable and deserves to be discarded. As per Shri

Soni, there is no other tangible evidence on record of the case so

as to connect the accused appellants with the alleged offences and

hence, the impugned judgment deserves to be quashed and set

aside and the accused appellants deserve to be acquitted by

giving them the benefit of doubt.

Shri Soni referred to the Supreme Court judgments in the

cases of Suresh Chandra Bahri Vs. State of Bihar reported in

AIR 1994 (SC) 2420, State of Himachal Pradesh Vs.

Surinder Mohan reported in AIR 2000 (SC) 1862,

A.Devendran Vs. State of Tamil Nadu reported in AIR 1998

(SC) 2821 and Ranadhir Basu Vs. State of West Bengal

reported in AIR 2000 (SC) 908 in order to support his

assertions. Mr. Soni further urged that so far as the recovery of

dagger allegedly effected at the instance of Gautam Giri vide

Memo Ex.P16 is concerned, it is absolutely inconsequential

because the seizure was made after more than a year of the

incident and no bloodstains whatsoever were found on the

weapon. It was fervently contended that there is no tangible

evidence on record so as to satisfy the court that the unidentified

female dead body which was recovered in the domain of Police

Station Rajpura, Patiala, was that of Sunita. He urged that the

dead body which was recovered at Rajpura, Patiala was that of a

(9 of 34) [CRLA-862/2011]

female aged about 25 years as mentioned in the post mortem

report (Ex.P23A) and thus, there is no justification behind the trial

court's conclusion that the body was that of Sunita whose age was

just 15 years as per the admitted prosecution case. He submitted

that if at all, the prosecution was desirous of proving the fact that

the dead body recovered was that of Sunita beyond all manner of

doubt, then the visceras should have been preserved and DNA

comparison should have been made with the specimens collected

from the parents so as to lead to a convincing conclusion

regarding identity. He further pointed out that the complainant

Babulal tried to make significant improvements in his

examination-in-chief by stating that after the F.I.R. was lodged,

his daughter Sunita called him on the STD PCO near his house.

However, if there was any truth in this allegation, then Babulal

would have definitely approached the Police with this important

lead regarding the whereabouts of his daughter. Shri Soni

submitted that the Police claims to have got the photographs

(Ex.P6 & P7) purportedly taken by police officers of Police Station

Rajpura, Punjab, identified for the purpose of establishing that the

same were of Sunita, the daughter of the complainant, but these

photographs bear no endorsement whatsoever that the same were

taken during the course of the inquest proceedings at Rajpura,

Patiala and thus the identification made on the basis of these

photos is an exercise in futility. He further contended that

photocopies of inquest proceedings were collected and exhibited

as Ex.P38 and thus, these documents could not have been relied

upon, as they fall within the category of secondary evidence. He

thus, sought reversal of the impugned judgment and craved

acquittal of the appellants.

(10 of 34) [CRLA-862/2011]

E converso, the learned Public Prosecutor vehemently and

fervently opposed the submissions advanced by the appellants'

counsel and contended that the prosecution has proved its case

beyond all manner of doubt on the basis of the clinching testimony

of Chandrapal @ Kalu, the Approver witness PW1, who had no

known animosity with the accused appellants. Evidence of the

Approver is corroborated in material particulars by other

independent and reliable evidence. He urged that the conclusion

drawn by the trial court that the dead body recovered at Rajpura,

Patiala, was that of Sunita, does not suffer from any error or

infirmity whatsoever because the said finding is based on the

cogent evidence viz., identification of the photos by the victim's

parents duly corroborated by the testimony of the Approver

Chandrapal @ Kalu. Learned Public Prosecutor contended that the

evidence of Approver Chandrapal @ Kalu (PW1) is convincing and

natural. He had the least role to play in the incident. Upon being

inspired by his conscience, he gave a voluntary application (Ex.P8)

to the Dy.S.P./C.O. Sriganganagar for becoming State's witness.

Thereafter, an application was filed to the Chief Judicial Magistrate,

Sriganganagar and statement of Chandrapal @ Kalu was got

recorded under Section 164 Cr.P.C. vide Memo Ex.P9. Thereafter,

the Dy.S.P./C.O. Sriganganagar moved an application (Ex.P44) to

the CJM, Sriganganagar under Section 306 (1) Cr.P.C. and the

accused Chandrapal @ Kalu was granted pardon and he was

declared to be an Approver vide order Ex.P46 dated 26.6.2007

subject to the condition that he would state the truth as and when

examined on oath. The statement of Chandrapal @ Kalu was

recorded on oath by the CJM as per law (Ex.P10). The defence

was given due opportunity to cross-examine Chandrapal @ Kalu at

(11 of 34) [CRLA-862/2011]

that stage, but it chose not to do so. There is ample, substantive

and corroborative evidence on record to support the view taken by

the trial court and the findings recorded in the impugned

judgment. Learned Public Prosecutor thus urged that the

conviction of the accused appellants and the sentences awarded to

them by the trial court vide the impugned judgment does not

warrant any interference whatsoever and hence, the same

deserves to be affirmed.

We have given our thoughtful consideration to the

submissions advanced at the bar and have gone through the

impugned judgment, and have minutely reappreciated the

evidence available on record.

Firstly, we proceed to examine the finding of the trial court

regarding the reliability of the Approver Chandrapal @ Kalu P.W.1

as a participant eye-witness of the incident.

We have thoroughly gone through the statement of

Chandrapal @ Kalu who was examined on oath as P.W.1. He stated

that Narendra Kumar @ Kallu's sister treated him to be her

brother. He met Narendra Kumar @ Kallu and Gautam Giri on

12.1.2007. He was then called by Narendra Kumar @ Kallu to

come to the NTC Ground, Rajpura on 14 th of January, 2007. There,

Narendra Kumar @ Kallu told Chandrapal @ Kalu that Deepak

Kumar @ Ashwani had kidnapped a girl named Sunita about 8-9

months ago and that she had to be married off because Deepak

Kumar @ Ashwani had abandoned Sunita and had gone away.

Upon this, Chandrapal @ Kalu suggested that he knew a boy of his

caste to whom Sunita could be married to. Narendra Kumar @

Kallu asked him to arrange a meeting with the boy. Chandrapal @

Kalu took Narendra Kumar @ Kallu and Gautam Giri to the Eagle

(12 of 34) [CRLA-862/2011]

Model Hotel Rajpura, Patiala where a meeting had been arranged

with the boy named Jaagar. Chandrapal @ Kalu told Jaagar that

his marriage could be fixed with Sunita. Jaagar requested that a

meeting be fixed with the girl. Thereafter, they all went back to

their respective homes. On 15th of January 2007, Narendra Kumar

@ Kallu again called him to the NTC Ground. The witness reached

there. Both Narendra Kumar @ Kallu and Gautam Giri met him

and confessed that they had indulged in sexual intercourse with

Sunita, who started pressurizing Narendra Kumar @ Kallu to

marry her. When Narendra Kumar @ Kallu refused the girl started

threatening that if he did not marry her, she would file a Police

case. Narendra Kumar @ Kallu hinted that the girl had to be

eliminated before she could approach the Police. Upon this,

Chandrapal @ Kalu refused to cooperate in the nepharious design.

Narendra Kumar @ Kallu thereupon, inveigled Chandrapal @ Kalu

in the name of their friendship and suggested that he would not

be considered a good friend if he refused to help his friends in

times of need. Narendra Kumar @ Kallu left Gautam Giri with

Chandrapal @ Kalu saying that he would be taking Sunita to the

Station and that both of them should reach there. Chandrapal @

Kalu and Gautam Giri reached the Rajpura Station in the night at

about 10 O'clock. Narendra Kumar @ Kallu and Sunita were

already present there. Narendra Kumar @ Kallu left Sunita at the

Station and took Chandrapal @ Kalu and Gautam Giri outside and

purchased liquor of Rs.50/- for them. Then Narendra Kumar @

Kallu told them that he was taking Sunita to the Patiala Bypass

and that both of them should follow him. He and Gautam Giri

followed Narendra and Sunita and reached at the Patiala Bypass in

about 20-25 minutes. Narendra Kumar @ Kallu took Sunita off the

(13 of 34) [CRLA-862/2011]

road. He and Gautam Giri followed them. Narendra Kumar @ Kallu

suffocated Sunita and stifled her screams with his hands and

shoved her towards the ground. Thereafter, Gautam Giri

strangulated her by the neck. The witness held the legs of Sunita,

who became unconscious in the process. Gautam Giri took out a

dagger from his socks and stabbed Sunita thrice on her neck. The

bloodstains splattered on the clothes of Narendra Kumar @ Kallu

and Gautam Giri. The dead body was abandoned and all three of

them climbed the Sirhind bridge. Gautam Giri buried the dagger at

a place near the bridge. Thereafter, all of them went to their

respective homes. When the girl was murdered, she was wearing

a cream coloured suit, a green colored shawl and sandals on her

feet. She was of darkish complexion. The Police arrested him vide

memo Ex.P1. He gave voluntary informations to the Police for

verifying the place of incident and the place where Gautam Giri

had buried the dagger (Ex.P4). The witness also identified the

photographs (Ex.P6 & P7) of the dead body to be those of Sunita.

The witness claimed to have voluntarily told the Dy.S.P./C.O.

Sriganganagar (P.W.18) that he wanted to become an Approver

acting on his conscience and that he knew the details of the

entire incident. He gave the application (Ex.P8) to the Dy.S.P./C.O.

whereafter, he was examined in the court twice. He proved his

previous statements (Ex.P9 and Ex.P10) as voluntarily given by

him.

In cross-examination, the witness admitted that he neither

knew Deepak Kumar @ Ashwani nor the father of the deceased.

When Narendra Kumar @ Kallu asked him to get the girl married,

he made efforts in this direction. He had never met Sunita before

and saw her for the first time at the Rajpura Station on

(14 of 34) [CRLA-862/2011]

15.01.2007. He was not proficient in writing Hindi. He had no

knowledge of English language. He admitted that neither Sunita

told him that Narendra Kumar @ Kallu and Gautam Giri had raped

her nor he had seen the accused appellants sexually assaulting

her. He refuted the suggestion of the defence that he had turned

into an Approver in the case so as to save himself from

punishment. He admitted that after 15.1.2007 i.e. the date of the

incident, he did not divulge about the same to any of his family

members, the Punjab Police or any other officer as he assumed

that if he disclosed anything pertaining to the incident, the other

accused persons would kill him. However, he admitted that neither

the accused came to his house for threatening him nor did anyone

of them call him for giving such threat.

Upon being examined on oath, Babulal Paswan (P.W.2),

father of the deceased, repeated the allegations set out in the

F.I.R. In addition thereto, he alleged that after about 3-4 months

of Sunita's disappearance, she called on the STD PCO of Rajesh

(PW3) which was located near his house and told that Deepak

Kumar @ Ashwani and Narendra Kumar @ Kallu had confined her

and were not allowing her to return home and that she feared

harm at the hands of these people. The witness asked Sunita

about the address where she was kept but she could not divulge

the same correctly. On 5 th May 2007, the Police called him to the

Mahila Police Station and showed him the pictures of a female

dead body (Ex.P6 & Ex.P7) which he identified those to be of his

daughter Sunita. At that time, his wife Smt.Tara Devi was also

present there. The witness also participated in further steps of

investigation including recovery of the dagger allegedly made at

the instance of Gautam Giri. In his cross-examination, the witness

(15 of 34) [CRLA-862/2011]

admitted that he was examined twice by the Police. The second

statement was recorded about 11 months after the first one. He

disclosed the number of the STD PCO from which Sunita had

called him from Delhi to the Police Officer. Deepak Kumar @

Ashwani and Narendra Kumar @ Kallu used to reside at some

distance from his house but they did not visit his home. He saw

Deepak Kumar @ Ashwani and Gautam Giri at Sriganganagar after

Police arrested them. He denied extract A to B of his Police

statement. Similar statement was given by the mother of the

deceased, Smt.Tara Devi (P.W.4).

Two significant facts emerge from the evidence of the

parents of the deceased viz. (1) call was made by Sunita after her

disappearance and she named Deepak and Narendra as her

captors and (2) identification of dead body's photos to be those of

Sunita.

The evidence of witnesses P.W.5 Rakesh, P.W.6 Ramesh

Kumar, P.W.7 Raghunandan, P.W.8 Vedpal Rama, P.W.9 Hansraj,

P.W.10 Niranjan Kumar Varun, P.W.11 Manoj Kumar, P.W.12

Shaktipal, P.W.13 Bhogendra @ Jogendra Mandal, P.W.14 Rajat

Saraogi and P.W.15 Omprakash, is more or less, formal in nature.

P.W.16 Dr.Baldev Singh proved the Post Mortem Report

(Ex.P23A) of the unknown dead body which was subjected to

autopsy during the inquest proceedings at Rajpura Patiala. He

stated that the cause of death of the unknown female was

excessive haemorrhage and shock because of severing of the

carotid artery. The doctor stated that all the three injuries noticed

on the dead body were caused by a sharp weapon. The deceased

was major. On the right hand of the deceased, the name of her

husband was tattooed.

(16 of 34) [CRLA-862/2011]

P.W.21 Anil Kumar stated that the photograph (Ex.P17)

shown to him was of a girl named Sunita. He claimed to be

knowing the accused appellants and Deepak Kumar @ Ashwani.

He used to do plaster of paris work in Sriganganagar. He claimed

that Deepak Kumar @ Ashwani met him in Delhi and told him that

the girl named Sunita was his wife. Deepak Kumar @ Ashwani

deserted Sunita in Delhi after 3-4 months and went away. The girl

approached the witness and requested him to drop her off at

Deepak's village on which, he witness feigned ignorance about the

location. The witness suggested to Sunita that he could give her

travel expenses and that she should go back to her parental

village on which, the girl told the witness that she was not

desirous of going back and requested him to call Narendra Kumar

@ Kallu. The girl then used the phone of the witness to call

Narendra Kumar @ Kallu who called the witness back on 9 th/10th

January 2007. Narendra Kumar @ Kallu came to Delhi with

Gautam Giri. The witness organized meals etc. for both of them.

Thereafter, Narendra Kumar @ Kallu requested the witness to drop

them off at the Station. The witness arranged an auto rickshaw

and took Narendra Kumar @ Kallu, Gautam Giri and Sunita to the

Station. Narendra Kumar @ Kallu was heard saying that he was

taking Sunita to Rajpura, Patiala to arrange her marriage. In

cross-examination, the witness stated that he could identify the

girl's photograph (Ex.P17) as she had crossed his path for the first

time in Sriganganagar. He had never met her personally before

that. He was familiar to the accused Deepak Kumar @ Ashwani for

last 7-8 months because they had a common work profile. Deepak

Kumar @ Ashwani had once brought the girl to his home and so,

she knew his address. Sunita came to him with her friend Tanu

(17 of 34) [CRLA-862/2011]

Soni. The witness could not divulge the address of Deepak Kumar

@ Ashwani. He agreed that he did not call Narendra Kumar or

Deepak Kumar.

Narendra Kumar had called Anil Kumar (P.W.21) and Sunita

asked the witness to call Narendra in reference to the earlier call.

She had saved the contact number of Narendra in her diary. The

girl came to his house but did not stay with him. He left the girl

and the accused persons outside the station, but could not state

as to which train they boarded. The Police approached him at

Mandawali, Delhi to record his statement. Sunita told him that

Deepak Kumar had deserted her. Sunita had met him alongwith

Deepak Kumar in Delhi on a couple of occasions. He was

confronted with his investigational statement (Ex.D4) with regard

to certain omissions/improvements, which we find to be trivial in

nature. The evidence of this witness provides significant

corroboration to the evidence of the complainant Babu Lal (P.W.2)

and the Approver Chandrapal @ Kalu (P.W.1).

One of the most important witnesses of the prosecution is

P.W.22 Kesarichand, Dy.S.P., SC/ST Cell, who was assigned

investigation after addition of offences under the SC/ST Act to the

case. The witness stated that he conducted investigation and

arrested Gautam Giri on 25.05.2007. He studied the documents of

the proceedings of the inquest report No.26/2007 conducted

under Section 174 Cr.P.C. at Police Outpost Rajpura (Ex.P38) in

which, photographs of the recovered dead body, Ex.P6 & P7, were

attached. The complainant Babulal Paswan and his wife Smt. Tara

were called to have a look at these photographs and they correctly

identified the victim to be their daughter Sunita. The accused

Gautam Giri gave information under Section 27 of the Evidence

(18 of 34) [CRLA-862/2011]

Act (Ex.P36) and got the place of incident verified (Ex.P14). The

accused then gave another information under Section 27 of the

Evidence Act on 29.5.2007 which was recorded in memorandum

Ex.P37 through which, disclosure was made regarding the place,

where he had concealed the weapon of offence i.e. the dagger. He

divulged that the dagger was burried in a pit near a railway bridge

beside the Sirhind Bypass Road. In furtherance of this information,

the accused took the Investigating Officer to the place of

concealment of the dagger at Rajpura. He himself went ahead and

dug out the dagger from a pit besides the railway bridge. The

dagger was seized and sealed by the Investigating Officer vide

seizure memo Ex.P16. Bhogendra Mandal (P.W.13) and Rakesh

Verma (P.W.5) were associated as Panch witnesses to this

recovery. The witness exhibited the post mortem report of the

unidentified dead body as Ex.P23A. The panchnama documents of

Rajpura which were in Gurumukhi language were also got

translated into Hindi. The Dy.S.P., SC/ST Cell, then recorded

statements of certain witnesses under Section 161 Cr.P.C. The

accused Chandrapal @ Kalu was found involved in the offence and

thus, he was arrested on 30.5.2007 from Rajpura vide arrest

memo Ex.P1. Acting in furtherance of the information provided by

Chandrapal @ Kalu under Section 27 of the Evidence Act (Ex.P2),

the place of incident was verified by the Investigating Officer vide

Memo (Ex.P3). The witness claims to have recorded the

information of Chandrapal @ Kalu regarding the place where the

dagger, used to kill Sunita was concealed after the murder

(Ex.P4). The accused Gautam Giri divulged during investigation

that Sunita had called Narendra Kumar from Delhi and told him

that Deepak Kumar had deserted her. Sunita used the phone

(19 of 34) [CRLA-862/2011]

No.93516-60413 for placing the call. Thus, the ownership details

of this mobile number were sought for from the Reliance Mobile

Company and it was revealed that the SIM was issued in the name

of one Jugal Kishore. The witness collected call details of this

mobile number. He also claims to have seized the mobile phone of

Narendra Kumar vide seizure memo Ex.P21. However, the seizure

was not made personally from Narendra Kumar. The witness

collected the caste certificate of the deceased and found that the

caste 'Paswan' is covered under the Scheduled Caste category. A

verification report to this effect was received from the

Superintendent of Police, Darbhanga, Bihar (Ex.P41). The witness

collected the statement of Chandrapal @ Kalu recorded under

Section 164 Cr.P.C. and attached it to the file (Ex.P9). After

investigation, he concluded that the offences were found proved

against all the four accused and accordingly, file was presented

for his approval to file a charge-sheet to the Superintendent of

Police, Sriganganagar. In cross-examination, the witness stated

that after being assigned the investigation, he studied the file of

inquest proceedings conducted at Rajpura. He admitted that as

per the post mortem report, the estimated age of the unknown

female was 25 years. He could not say, whether the site inspection

plan and site inspection memo were prepared in the proceedings

at Rajpura. He did not procure any order of the court for

procurring the photographs of the unknown girl's dead body

(Ex.P6 and P/7) recovered at Rajpura, to be identified by Babulal

Paswan. The negatives were not available on the file. He could not

state, whether or not, clothes of the deceased were seized by the

Rajpura Police during the inquest proceedings. General

(20 of 34) [CRLA-862/2011]

suggestions were made to the witness that he concocted evidence

to falsely implicate the accused, however, he denied the same.

We find that evidence of the witness regarding the steps of

investigation is convincing and untainted. He had no cause to

fabricate evidence for implicating the accused persons.

P.W.23 Gurbuksh Singh Dhariwal, Advocate practicing at

Sriganganagar gave evidence to the effect that the officers of the

Woman Police Station, Sriganganagar requested him to translate

the documents of proceedings of inquest proceedings No.26/2007

of P.S. Rajpura from Gurumukhi into Hindi language and he did the

needful on their request. He did not charge any money for doing

this work. The evidence of this witness is formal in nature.

P.W.24 Shri Satyanarayan Vyas was posted as the Chief

Judicial Magistrate, Sriganganagar on 2.6.2007. He stated on oath

that he received an application (Ex.P44) from Shri Bhagwana

Ram, the Dy.S.P./Circle Officer City Ganganagar narratiing that the

accused Chandrapal @ Kalu had expressed his desire for becoming

an Approver in connection with FIR No.55/2006 (Ex.P12) and

thus, requisite procedure be followed for granting him pardon and

declaring him to be the State's witness. The application was

endorsed by the Chief Judicial Magistrate. The accused was in

Police custody and thus, the matter was adjourned to 5.6.2007.

On 7.6.2007, production warrant was issued to secure presence of

the accused Chandrapal @ Kalu who was presented from jail

before the CJM on 26.6.2007. The CJM put questions regarding

willingness of the accused to turn into an Approver and to

ascertain his free will and desire. These proceedings were

recorded in the CJM Court's order-sheet (Ex.P45) dated

26.06.2007. The accused stated before the CJM that he was

(21 of 34) [CRLA-862/2011]

desirous of turning into a State's witness in the instant case of his

free will and volition and without any threat, duress or coercion

and accordingly, he was granted pardon vide order Ex.P46 dated

26.6.2007. After being pardoned, the statement of Chandrapal @

Kalu was recorded under Section 164 Cr.P.C. and was proved by

the Judicial Officer as Ex.P9. The witness stated that he recorded

the statement (Ex.P9) of Chandrapal @ Kalu ad verbatim and

thereafter, the same was sealed in an envelope and was forwarded

to the Investigating Officer. Charge-sheet was submitted in his

court whereafter, statement of Chandrapal @ Kalu was recorded

on oath under Section 306(4)(a) Cr.P.C. on 29.8.2007.

Opportunity of cross-examination was given to the other accused

persons who were present in the court with their counsel, but they

chose not to cross-examine Chandrapal @ Kalu. The statement on

oath rendered by Chandrapal @ Kalu was proved as Ex.P10. In

cross-examination, the officer stated that the application (Ex.P44)

was submitted by Shri Bhagwana Ram, Dy.S.P./C.O. City, but it did

not bear the signature of Chandrapal @ Kalu. The accused was

brought to the court by the Jail Guards in compliance of the

production warrant. Ample time for contemplation was given to

the accused and then he was asked whether he was under any

fear, threat or duress to which, he replied that he was desirous of

giving the statement of his own free will and volition. The CJM

could not state the exact time when the statement was recorded.

He clarified that he was aware of the fact that there was no eye-

witness to the incident and Chandrapal's role in the murder of

Sunita was minimal and that is why, the application of the accused

Chandrapal for turning into an Approver in this case was

approved/accepted.

(22 of 34) [CRLA-862/2011]

P.W.25 Ramsharan, resident of Rajpura (Punjab) stated that

on 16.1.2007, he was proceeding from his house when he saw the

body of a girl lying near FCI Godown, Rajpura. He immediately

informed the Police Outpost about this, upon which, the in-charge

Amarjit Singh, Constables Malvindra Singh and Surjeet Singh

reached the spot. The victim was wearing yellow coloured jumper,

purple coloured salwar and green coloured shawl. Incised wounds

were visible on her neck. Names "Sunita and Deepak" were

tattooed on her arm. The photographs Ex.P6 & P7 were shown to

him the witness who identified them to be of the in-nominate dead

body. In cross-examination, the witness stated that he knew

Amarjit Singh and Police officers of Outpost. He had remained a

Parshad of Rajpura from 1993 to 1998 and 2003 to 2008. The

Police Outpost In-charge did not record his statement. People of

the locality had gathered at the place where the dead body was

found. The age of the deceased girl was between 18 and 20 years.

The Police undertook the documentation of the proceedings under

Section 174 Cr.P.C. in his presence and he was made to sign the

memos. The photographs (Ex.P6 and P7) were not clicked in his

presence. Names were tattooed on the arm of the deceased. The

witness refuted the defence suggestion that he was giving the

statement under the pressure of the Police. Evidence of this

witness, also lends credence to the fact that the deceased girl was

indeed Sunita and also corroborates the testimony of the Approver

Chandrapal @ Kalu (P.W.1) because the details of clothes present

on the victim's dead body as stated by Ram Sharan (P.W.25)

match with the details stated by Chandrapal @ Kalu (P.W.1).

P.W.26 Raghuveer Singh was posted as the S.H.O. Woman

Police Station Sriganganagar at the relevant point of time. The

(23 of 34) [CRLA-862/2011]

complaint (Ex.P11) submitted by Babulal Paswan was received by

him from the court of the Chief Judicial Magistrate, Sriganganagar.

The officer registered the FIR No.55/2006 (Ex.P12), and recorded

the statements of various witnesses and collected the photograph

of Sunita (Ex.P17) from the photographer Ramesh Kumar (P.W.6).

During investigation, two photographs of Deepak's marriage were

presented to him by Narendra Kumar which he had attached to

the file (available on the record book but not proved). The accused

Deepak Kumar was arrested vide arrest memo Ex.P47. The

accused Narendra Kumar was arrested vide arrest memo Ex.P48.

The accused Narendra Kumar gave information for identifying the

place of the incident which was recorded in memo Ex.P49. In

furtherance of such information, the accused took the

Investigating Officer to the place of the incident and verified the

same vide memo Ex.P18. The file was then handed over to SHO

Rajhans (P.W.20) for further investigation. The witness admitted

that the persons, who had been arraigned in the complaint, were

not found to be the actual murderers. However, he concluded that

reference of a person having caste 'Giri' in the complaint was none

other than Gautam Giri. The cross-examination undertaken from

this witness is mostly formal and inconsequential as evidence of

this witness is more or less formal in nature.

P.W.27 Malvindra Singh posted as Head Constable of the

Police Outpost Rajpura, Punjab on 16.1.2007. He proved the

proceedings of the inquest report No.26/2007 (Ex.P38) registered

at the Police Outpost Rajpura. He further stated that the inquiry

was undertaken by Shri Amarjit Singh, S.I., who had moved

abroad by permanently leaving his job. The witness was

associated in the inquest inquiry and thus, he proved the same

(24 of 34) [CRLA-862/2011]

from his personal knowledge. He stated that all the memoranda

prepared during the proceedings of the inquest were penned by

him. He proved the signatures of Amarjit Singh and his own

signatures on the documents. Nothing significant was elicited

during cross-examination of this witness.

After analyzing the prosecution evidence, we now proceed to

draw our conclusions while considering the defence submissions.

From the evidence of the complainant Babulal Paswan P.W.2

and his wife Smt.Tara Devi P.W.4, it is well established that their

daughter Sunita, the deceased, disappeared from Sriganganagar

on 14.6.2006 Babulal immediately approached the Police Station

Sriganganagar for lodging a Missing Person Report, heed was not

paid to his fervent pleas and no action was taken by the police and

thus, he was compelled to approach the Court of CJM,

Sriganganagar for filing the complaint (Ex.P11), which was

forwarded to the Woman Police Station for investigation under

Section 156(3) Cr.P.C. On this complaint, F.I.R. No.55/2006

(Ex.P12) came to be registered. It appears that investigation was

not being undertaken sincerely and in the meanwhile, the missing

girl Sunita herself called her parents from Delhi and told them that

she had been raped by Deepak Kumar and Narendra Kumar and

that they had confined her so that she was not able to return

home. She also expressed an apprehension to her life. However,

the girl could not divulge her exact address. Babulal rushed to the

Police Station and informed the police officers about this

development. Soon thereafter, a girl's dead body was recovered in

Punjab. The Investigating Officer of the present case receive

information of this unfortunate turn and events and collected the

file of inquest proceedings No.26/2007 (Ex.P38) from Rajpura.

(25 of 34) [CRLA-862/2011]

Babulal Paswan (P.W.2) and his wife Smt.Tara Devi (P.W.4) were

then called to the Police Station and were shown the dead body's

photographs (Ex.P6 & P7), which the witnesses identified to be of

their missing daughter Sunita. On going through the cross-

examination undertaken from Babulal Paswan (P.W.2) and

Smt.Tara Devi (P.W.4.), we are of the firm view that their evidence

is of sterling worth and wholly reliable. Assertion made by the

witness Babulal regarding Sunita having called them from Delhi

and naming Deepak and Narendra Kumar as the culprits, is also

fortified from the evidence of Rajesh Kumar (P.W.3), the STD PCO

owner in Sriganganagar, who stated that Sunita had put a call

from Delhi to his STD PCO and she talked to her parents. This

witness saved the land-line phone number of Delhi and shared it

with the complainant as well as the Police.

P.W.6 Ramesh Kumar proved Sunita's photograph (Ex.P17)

which the Police collected during investigation.

P.W.10 Niranjan Kumar Varun was the owner of the STD PCO

in Delhi which was used by the victim to make calls to her

parents. This witness was shown the photograph (Ex.P17) and he

affirmed that the photograph was of the girl who had come to his

STD PCO to make the calls.

P.W.14 Rajat Saraogi proved the fact that Narendra Kumar

left a Reliance Mobile at his shop for repairs. However, as the call

details were not proved in accordance with Section 65B of the

Evidence Act, we need not advert in detail to the recovery of the

mobile phone which has been rendered inconsequential.

P.W.16 Dr.Baldev Singh conducted autopsy of the female

dead body found at Rajpura, Punjab. He proved the post mortem

report (Ex.P23A) while noticing presence of multiple sharp weapon

(26 of 34) [CRLA-862/2011]

injuries on the neck of the deceased as a result whereof, the

carotid artery was severed leading to instantaneous death. The

doctor also stated that the victim was about 5' 1" in height. She

was wearing a yellow coloured shirt, a green coloured shawl and a

purple coloured salwar. The estimated age of the victim was

mentioned as 25 years in the post mortem report, which the

doctor explained that the same could be variable by 2-3 years

eitherways.

P.W.18 Bhagwana Ram proved the proceedings whereby, the

accused Chandrapal @ Kalu, turned into an Approver. We have

examined his evidence in extenso and find that the procedure

which he undertook was absolutely lawful and untainted,

forwarding the application (Ex.P8) filed by the accused to turn into

an Approver and the steps taken thereupon in accordance with

Section 306 Cr.P.C.

From a threadbare appreciation of the evidence of the

prosecution witnesses referred to above, it is clear that the factum

regarding the complainant's daughter the victim Sunita, having

gone missing from Sriganganagar in the month of June 2006 is

well established from the evidence of the complainant Babulal

Paswan and his wife Smt.Tara Devi. The evidence of these

witnesses and the evidence of STD PCO owner Rajesh Kumar

P.W.3, duly establishes the fact that Sunita, was confined at Delhi

by accused Deepak Kumar and Narendra Kumar. She called her

parents on the STD PCO and talked to them. The fact regarding

Sunita and Deepak Kumar having gone away and married each

other is duly fortified from the evidence of the prosecution

witnesses and gets corroborated from the fact that the names

"Deepak" and "Sunita" were found tattooed on the arm when the

(27 of 34) [CRLA-862/2011]

dead body was recovered at Rajpura. We have ourselves

compared the photographs of the victim Sunita (Ex.P17)

submitted by the complainant to the Police Officers and the

photographs of the unidentified dead body (Ex.P6 & P7) clicked

and preserved during inquiry at the Outpost Rajpura and find that

all the photographs are undoubtedly of same girl. The argument

harped upon by counsel Shri Soni that the age of the victim was

mentioned as 25 years in the inquest proceedings and thus, it

cannot be safely concluded that the girl whose dead body was

found at Rajpura was Sunita, is totally untenable for the simple

reason that the age which is mentioned in the 174 Cr.P.C.

proceedings is an estimated one. From the evidence of the Medical

Officer, P.W.16 Dr.Baldev Singh, it is clear that the death of the girl

was homicidal in nature having been caused by inflicting sharp

weapon injuries on her neck.

Nonetheless, even if the above links of circumstancial

evidence led by prosecution case are accepted as such then also,

they hardly give any reliable material so as to bring home the guilt

of the accused appellants.

As a matter of fact, to bring home the charges, the

prosecution case heavily banks upon the evidence of the Approver

Chandrapal @ Kalu who was examined as P.W.1 in support of the

prosecution case. Thus, his evidence needs to be appreciated in

depth keeping in view all the checks and balances and more

particularly, in reference to the submissions advanced by the

defence counsel. The foremost contention of Shri Soni, learned

counsel representing the appellants, was that proper opportunity

to cross-examine the Approver was not given to the accused

persons by the Chief Judicial Magistrate while undertaking the

(28 of 34) [CRLA-862/2011]

procedure under Section 306(4)(a) Cr.P.C. His pertinent

submission was that the counsel, who had appeared in those

proceedings was none other than Gokul Swami, who had filed the

complaint (Ex.P11) on behalf of the complainant Babulal Paswan.

This Court sought verification of the fact, whether there are more

than one Gokul Swami Advocates practicing in Sriganganagar and

the Secretary, Bar Council of Rajasthan has intimated vide

communication dated 3.8.2019 that only one person by the name

of Gokul Swami is practicing there. Thus, the contention of Shri

Soni that the counsel who represented the accused in the

proceedings under section 306(4)(a) Cr.P.C., was also the counsel

for the complainant, is fortified.

Hon'ble the Supreme court considered the scope of an

Approver's evidence in detail in the case of Suresh Chandra

Bahri Vs. State of Bihar (supra) and has held that recording of

evidence of an accomplice or an Approver as a witness on oath

after tendering pardon in the court of the Magistrate taking

cognizance of the offence, is a mandatory requirement of law and

cannot be dispensed with and if this mandatory procedure is not

followed, it vitiates the trial.

However, it is evident from a bare perusal of the evidence of

the Chief Judicial Magistrate Shri Satyanarayan Vyas (P.W.24), that

after tendering pardon to accomplice/approver Chandrapal @ Kalu

and after taking cognizance of the offence, he was indeed

examined on oath as a witness and his statement has been

exhibited as Ex.P10. It is true that the counsel who had appeared

on behalf of the accused at that stage, was also the counsel for

the complainant in the original complaint and, that no cross-

examination was made from the Approver at the pre-committal

(29 of 34) [CRLA-862/2011]

stage. However, the issue regarding the right to cross-examine an

Approver stands concluded by Hon'ble the Supreme Court beyond

the pale of doubt in the case of State of Himachal Pradesh Vs.

Surinder Mohan (supra) holding thus:

"12. From the aforesaid ingredients, it is abundantly clear that at the stage of investigation, inquiry or trial of the offence, the person to whom pardon is to be granted, is to be examined for collecting the evidence of a person who is directly or indirectly concerned in or privy to an offence. At the time of investigation or inquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. The right to cross- examination would arise only at the time of trial. During the course of investigation by the Police, question of cross-examination by the accused does not arise. Similarly, under Section 200 Cr.P.C. when the Magistrate before taking cognizance of the offence, that is, before issuing process holds the inquiry, accused has no right to be heard, and therefore, the question of cross-examination does not arise. Further, the person to whom pardon is granted, is examined but is not offered for cross- examination and thereafter during trial if he is examined and cross-examined then there is no question of any prejudice caused to the accused. In such cases, at the most accused may lose the chance to cross-examine the approver twice, that is to say, once before committal and the other at the time of trial."

Apparently thus, there is no such requirement of law that the

defence must be allowed to cross-examine the Approver when his

statement is recorded at the pre-committal stage. Hence, no

prejudice whatsoever was caused to the accused on account of the

fact that the counsel who had appeared on their behalf before the

Chief Judicial Magistrate during the proceedings under Section

306(4)(a) Cr.P.C., was also the counsel for the complainant and

that he did not cross-examine the Approver. Further, it is also clear

from the proceedings undertaken by the CJM that the accused

(30 of 34) [CRLA-862/2011]

themselves were present in the court when the statement of the

Approver was recorded on oath (Ex.P10) and they too did not

choose to cross-examine him. As a consequence, we are of the

firm opinion that no infirmity whatsoever is reflected in the

proceedings whereby, Chandrapal @ Kalu P.W.1 was declared as

an Approver and his statement was recorded by the Chief Judicial

Magistrate. The mandatory requirements of Section 306 Cr.P.C.

were duly followed and hence Chandrapal @Kalu is a competent

witness.

Now we advert to the statement of Chandrapal @ Kalu. The

gist of his evidence is reproduced hereinbelow for the sake of

ready reference:

According to Chandrapal @ Kalu, on the evening of 14

January 2007 Narendra Kumar and Gautam Giri returned from

Delhi to Rajpura. Thereafter, around 08:30 PM he got a call from

Narendra asking him to come to NTC ground Rajpura. On reaching

the ground, Narendra informed him that the girl who eloped with

Deepak 8-9 months ago, had to get married off because she had

been deserted by Deepak in Delhi. Upon this, he suggested that

he knew of a boy named Jaagar of his caste with whom Sunita

could be engaged. They, along-with Gautam Giri then decided to

meet Jaagar at Eagle Model Hotel and met him there. All four of

them then discussed as to how to proceed further. Jaagar asked

them to arrange a meeting with Sunita. Narendra agreed to this

and thereafter, they dispersed and went back to their respective

homes.

In the evening of 15 January 2007, Narendra again called

the witness to NTC ground. When he reached the ground, he met

(31 of 34) [CRLA-862/2011]

Narendra and Gautam Giri, who confessed that they both had

indulged in sexual intercourse with Sunita. They also added that in

consequent thereto, Sunita started pressurizing Narendra to get

married to her, to which he refused. Whereon, Sunita threatened

Narendra that if he refused to marry her, she would lodge a report

against him in the Police.

After this narrative, Narendra imputed that the girl could

cause trouble and therefore, she had to be eliminated. However,

Chandrapal @ Kalu refused to be a part of this plan. Narendra

inviegled him to participate in the act in the name of their

friendship.

Following this, Narendra left Gautam Giri with Chandrapal

and asked them to reach the station where he would be getting

Sunita as well. Chandrapal @ Kalu and Gautam Giri reached

Rajpura station at about 10 PM. They found Sunita and Narendra

already present there. Narendra Kumar left Sunita at the station

while taking Gautam Giri and Chandrapal @ Kalu outside and

bought liquor worth Rs. 50. Thereafter Narendra informed them

that he would be taking Sunita to the Patiala bypass while

suggesting that both of them should follow him there. Chandrapal

@ kalu and Gautam reached the Patiala bypass in 20-25 minutes.

Narendra led Sunita to an unpaved road. All this while, the

witness and Gautam Giri kept following them. After some

distance, Narendra grabbed Sunita by her mouth and shoved her

towards the ground. Upon which, Sunita started screaming.

Narendra covered her mouth completely. Gautam Giri grabbed the

neck of the girl and strangled her while the witness held her legs.

Sunita lost her consciousness. Later, Gautam Giri took out a sharp

(32 of 34) [CRLA-862/2011]

pointed knife and stabbed her on the neck thrice which stained the

clothes of Gautam Giri and Narendra Kumar with blood. The three

of them abandoned the dead body there itself and got onto the

Sirhind bridge. Sunita's bag was with Narendra which he disposed

by throwing it off the bridge. Gautam Giri hid the weapon of

offence in a pit at some distance away from the bridge. The three

of them dispersed and went back to their respective homes.

The witness described that Sunita was wearing cream

coloured suit, green coloured shawl and sandals on her feet. He

also stated that she was of dark complexion. The Police arrested

him on 30 May 2007 in connection to this case.

In his cross-examination, the witness admitted that he did

not know Sunita and Deepak from before. He saw Sunita for the

first time on 15th January 2007 at the Rajpura Station. He also

admitted that neither he saw Narendra Kumar and Gautam Giri

sexually harassing/assaulting the girl nor did she make a

complaint of this nature to him. He and Narendra were friends for

last 4 years. He knew Gautam Giri through Narendra Kumar. He

confirmed that all the informations in relation to the recoveries

were voluntarily made by him. Prior to his arrest, he did not

disclose anything pertaining to this whole episode to anyone

because he assumed threat to his life at the hands of the Accused

Narendra and Gautam, though he was never actually threatened

by them. He denied the suggestion that he was arrested by the

Rajpura Police and confirmed that the Sriganganagar Police had

arrested him in connection to this case. He narrated the chain of

events that were involved in the commission of offence in

(33 of 34) [CRLA-862/2011]

consonance with the statements of his chief-examination. He

verified his signatures on the exhibits.

On going through the tenor of the entire statement of the

Approver in context to the evidence of other witnesses, which we

have already discussed above, we find that Chandrapal @ Kalu has

given an absolutely truthful version of the incident with an explicit

narration of the turn of events in which, the victim was taken to

Rajpura by the accused Narendra Kumar, Gautam Giri and the

Approver himself, under the pretext that she would be married off

and then, she was brutally murdered by slitting her neck. It is

clear that Narendra Kumar and Gautam Giri had taken liberties

with the girl and indulged in sexual intercourse with her.

Thereafter, she was pressurizing Narendra Kumar and to either

marry her or to face Police action. In order to get rid of the victim,

she was lured away from Delhi and was taken to Rajpura after

giving her a false assurance that she would be married off. The

fear that the girl would file a Police case was the motive behind

the incident. However, the plan hatched by the accused right from

the inception was to get rid of the victim and so she was brutally

murdered near the Sirhind Bypass by slitting her throat.

Chandrapal @ Kalu has spoken about his active participation in the

murder, confessing that he caught hold of the legs of the victim,

while the accused appellants Narendra and Gautam forced her

down and slit her throat. The evidence of Chandrapal @ Kalu is

corroborated in material particulars through the other links of

evidence, which we have discussed above. The defence tried to

criticise the evidence of Chandrapal on the premise that he was

inimical to the accused, but no such significant fact was elicited in

(34 of 34) [CRLA-862/2011]

the cross-examination conducted from the Approver Chandrapal

nor did the accused lead any evidence in defence to substantiate

this fictitious defence theory. Therefore, we are of the firm opinion

that the Approver's evidence inspires confidence and there is no

reason to doubt the same. As the Approver has given cogent and

clinching evidence in proving that the accused appellants Narendra

Kumar and Gautam Giri were the perpetrators of the murder of

Sunita, the trial court was perfectly justified in convicting and

sentencing them in above terms by the impugned judgment,

which does not suffer from any infirmity, illegality or irregularity

whatsoever, warranting interference therein. Hence, we are not

inclined to interfere in the impugned judgment.

Accordingly, the appeal fails and is hereby dismissed as

being devoid of merit.

                                    (DEVENDRA KACHHAWAHA),J                               (SANDEEP MEHTA),J



                                   /tarun goyal/









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