State Of Haryana v. Salim And ANR.

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH (1) Murder Reference No. 3 of 2014 Date of Decision : January 20, 2015 State of Haryana ......Prosecutor

Versus

Salim and another ......Convicts (2) Salim and another .....Appellants

Versus

State of Haryana .....Respondent CORAM :

HON'BLE MR. JUSTICE T.P.S. MANN HON'BLE MR. JUSTICE DR. SHEKHER DHAWAN Present :

Mr. Randhir Singh, Additional Advocate General, Haryana. Mr. Aman Bansal and Ms. Anjali Bansal, Advocates for the convicts.

T.P.S. MANN, J.

Salim and Shaukeen, two brothers, who are sons of Nasir and residents of village Kairana, Pir Jadhan Mohalla, District Shamli (Uttar Pradesh), were tried for hatching a conspiracy alongwith Sadiq and Jahangir, since declared juveniles, to murder Tahira, daughter of Shaukeen. They were also tried for committing the murder of Tahira in pursuance of the criminal conspiracy alongwith Sadiq and Jahangir and burying her dead body in the house of Salim. They were also tried for destroying the evidence of commission of murder of Tahira by disposing

-2of her dead body secretly with an intention to screen themselves from legal punishment. Vide judgment and order dated 12/17.9.2014, learned Sessions Judge, Panchkula convicted and sentenced them as follows:- (i) Convicted under Section 302 read with Section 120-B IPC and sentenced to death and to pay a fine of Rs.2,000/- each and in default of payment of fine, to further undergo simple imprisonment for one year;

(ii) Convicted under Section 120-B IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1,000/- each and in default of payment of fine, to further undergo simple imprisonment for six months; and (iii) Convicted under Section 201 IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1,000/- each and in default of payment of fine, to further undergo simple imprisonment for six months.

Both the sentences were ordered to run concurrently. However, the matter was referred as per the provisions of Section 366 Cr.P.C. to this Court for confirmation of death sentence of the two convicts, namely, Salim and Shaukeen. Both the convicts have also filed Criminal Appeal No.D-1530-DB of 2014 wherein they have prayed for setting aside the impugned judgment of conviction and sentence. The reference and appeal are, accordingly, disposed of by a common order.

-3The case of the prosecution, in nutshell, is that on 23.10.2013 at 6.10 p.m. convict Shaukeen suffered statement Ex.PQ before inspector Arvind, Station House Officer, Police Station Chandimandir, District Panchkula when the latter, alongwith his fellow police officials, was present at Mattanwala Chowk in connection with patrolling. Shaukeen stated therein that he was resident of village Kairana, District Shamli and had been taking orchard on lease. While he had taken a lichi orchard on lease in Pathankot, his younger brother Salim had taken a mango orchard on lease in village Khangesra, District Panchkula where he was living with his family. He was having four sons and three daughters. His elder daughter was aged seventeen years.

Younger to her was daughter Tahira, aged fifteen years, who had developed illicit relations with a boy of the village about two months ago. When he learnt about the affair, he had a word with his younger brother Salim and for the sake of reputation called him in the village and sent Tahira alongwith him for a few days. Tahira kept on insisting to marry the boy, namely, Wasim @ Gola of the same village. Salim had advised Tahira that he would bring her back after a few days. After 6/7 days, he sent his son Jagir to met Tahira, who stayed there for 2/3 days and came back. 15/16 days later, he called his brother Salim on his phone and insisted upon talking to his daughter Tahira but Salim did not do so and kept on putting of the matter. On 22.10.

2013, Shaukeen asked Salim to let him talk to Tahira or else he would reach there alongwith his family.

-4and for the sake of his reputation, he had killed her and buried her dead body in the orchard. Hearing this, Shaukeen, alongwith her wife and others, reached the orchard of Salim who stated that after killing her he had buried Tahira in the courtyard but due to fear of the owner of the orchard, he removed the dead body and buried the same in the river near village Alipur. Saying this, Salim left for the spot whereas Shaukeen, alongwith his wife and brother-in-law, started for Police Post Ramgarh for reporting the matter to the police. However, Shaukeen met Inspector Arvind at Mattanwala Chowk and got recorded his statement that Salim and his son Sadiq had killed his daughter Tahira and buried her. Further, some other person might also be involved in the murder of his daughter.

He, accordingly, prayed for taking legal action in the matter. As the statement made by Shaukeen disclosed commission of offences under Sections 302/34/201/120-B IPC, Inspector Arvind sent the same to the Police Station, Chandimandir through EHC Rajesh Kumar. On its basis, FIR Ex.PQ/2 was registered on 23.10.2013 at 6.40 p.m.

In order to investigate the matter, Inspector Arvind reached village Khangesra and visited the mango orchard, i.e. the place of occurrence. He also summoned the scene of crime team, the Sub Divisional Magistrate, Kalka, the Assistant Commissioner of Police and the doctor to the spot. On their arrival at the spot and on the demarcation of the Shaukeen, the first place was dug, but nothing was recovered. Only some ashes were recovered which were taken into

-5possession. Thereafter, Shaukeen led the police party and the Sub Divisional Magistrate near the river bed in the area of village Alipur and got demarcated the place where Salim had concealed the dead body of Tahira. On the demarcation of Shaukeen, the dead body was dug out from the spot and identified by the relatives of the deceased on the basis of clothes worn by her. Inquest proceedings were conducted and the dead body, thereafter, sent for post-mortem. After the post-mortem, the doctors handed over the viscera of the deceased and a parcel containing clothes of the deceased to Inspector Arvind who deposited the same with the MHC. The dead body was entrusted to Shaukeen and Kalandeen.

During further investigation, Inspector Arvind went to village Khangesra and joined Virender Singh, owner of the mango orchard in the investigation, who produced convict Salim and, accordingly, Salim suffered disclosure statement admitting his involvement in the crime. However, neither any recovery was effected nor any place demarcated pursuant thereto. On 29.10.2013, Inspector Arvind again interrogated convict Salim and pursuant to the disclosure statement suffered by him, convict Salim demarcated the tube-well in the mango orchard, where he, alongwith his co-convict, had committed the murder of Tahira. Convict Salim also got demarcated the place where he buried the dead body of Tahira, in the first instance, after committing her murder in the mango orchard.

He also demarcated the place where the dead body of Tahira was subsequently buried and recovered. He also got demarcated the spot where he burnt the bag of clothes of Tahira. He also got recovered motor-cycle bearing registration No.

-6and pillow. Inspector Arvind also prepared the rough site plan of various recoveries and also of the place where convict Salim had murdered Tahira while she was sleeping on a cot in the mango orchard of Virender Singh.

During further investigation of the case, one Hakimudeen produced convict Shaukeen before Inspector Arvind. After enquiry about the facts of the case from convict Shaukeen, Inspector Arvind arrested him. On interrogation, convict Shaukeen suffered disclosure statement regarding planning alongwith his brother Salim the murder of his daughter Tahira. As per the disclosure statement, neither any recovery was effected nor demarcation made. The Investigating Officer, however, got prepared the scaled site plans and also got the place of occurrence as well as of place of recovery of dead body videographed. The photographs of the proceedings regarding digging out of the dead body were also taken. Upon completion of investigation, both Salim and Shaukeen were challaned by the police. The case was, thereafter, committed to the Court of Sessions where the two convicts were charged, as mentioned above, to which they pleaded not guilty and claimed trial.

In support of its case, the prosecution examined nineteen witnesses.

PW1 HC Om Parkash testified that on 23.10.2013 and 24.12.2013 he had deposited the parcels with the Forensic Science

-7Laboratory.

PW2 Surjeet Singh, Patwari of village Kot proved scaled site plan Ex.PB, which he had prepared after visiting the spot. PW3 Lekh Raj proved scaled site plan Ex.PC which he had prepared on the request of police and after visiting the fields in village Mauza Khatauli.

PW4 Constable Gurpinder Singh testified that on 25.10.2013 Inspector Arvind moved application Ex.PD for obtaining CDRs (Call detail records) of mobile Nos. 98978-89542, 97615-42967 and 88149-08487 for the period from 23.8.2013 to 23.10.2013. Accordingly, he sent emails Ex.PE and Ex.PF to the concerned service providers and obtained the CAFs (Cutomer Application Forms) and the call details from them. He also proved the copies of CAFs Ex.P1 and Ex.P2 of mobile numbers 98978-89542 and 88149-08487 and call details Ex.PH and Ex.PJ of mobile Nos. 97615-42967 and 88149-08487.

PW5 Ms. Riti Saini, Senior Scientific Officer testified that she visited the spot where the dead body was first buried and after inspecting the spot, prepared her detailed report Ex.PL. PW6 Ms. Manita Malik, Sub Divisional Magistrate, Kalka deposed that on 23.10.2013 she was appointed as Duty Magistrate for the excavation of dead body at village Khangesra and, accordingly, she reached the spot and on her directions and on the demarcation of

-8convict Shaukeen, two places, firstly at village Khangesra in the mango orchard and secondly, near the local river bed, were dug out and from the second place, a plastic sheet in a wrapped condition was recovered. After opening the same, it was found to contain the remains of a human dead body and foul smell emitting from the same. She also stated that the videography of the proceedings was done.

PW7 HC Harinder Kumar testified that he was the MHC of the Police Station and the case property was deposited by the investigating officer on 23.10.2013 and parcels were forwarded to the Forensic Science Laboratory on 24.12.2013.

PW8 ASI Singh Raj deposed that on 8.11.2013, the samples given to him vide RC No.523 were deposited with the Forensic Science Laboratory.

PW9 Jasbir Singh, Photographer testified that he had videographed and photographed the place situated in mango orchard at village Khangesra where a pit was dug out and also the place where the dead body was recovered.

PW10 Virender Singh, owner of the mango orchard near village Khangesra, deposed that he had given the mango orchard to convict Salim on contract for two years and convict Salim used to reside alongwith his family in that garden. He also stated that he used to visit his garden but never saw any girl by the name of Tahira there at any point of time. Further, no demarcation proceedings were done by

-9convict Salim in his presence. As the witness did not support the case of the prosecution, he was got declared hostile and cross-examined by the learned Public Prosecutor.

PW11 Gurnam Singh testified that on 23.10.2013 he was called by the police at mango orchard of Virender Singh and in his presence a pit was dug out and videography of the proceedings was also done but nothing was found therein. However, some samples of earth alongwith some pieces of de-composed material were lifted and taken into possession by the police. He further deposed that the police party, thereafter, reached the bed of a local river in the area of village Khangesra and a place was dug out in the presence of the Sub Divisional Magistrate. It led to recovery of a dead body wrapped in a plastic sheet. The dead body was totally de-composed and foul smell was coming. Videography was also done. He, however, stated that he did not know anything apart from what he had stated.

Accordingly, he was also got declared hostile and cross-examined by learned Public Prosecutor. During such cross-examination, he denied making statements Ex.PT and Ex.PV. He also denied having witnessed various recoveries and preparation of recovery memos. He denied his signatures on the various memos., but stated that the police had obtained his signatures on blank papers. He also denied regarding recovery of motorcycle alongwith registration certificate at the instance of convict Salim.

-10to convict Salim for Rs.32,000/- and received the entire sale consideration. However, the registration certificate still remained in his name as he had not executed any document regarding transfer of the motorcycle in the name of convict Salim.

PW13 Safiq, testified that he had obtained a SIM card of mobile No.88147-08487 of Vodafone on his ID and handed over the same to convict Salim, who was related to him. PW14 Dr. Sunil Gambhir testified that he conducted postmortem on the dead body of Tahira and opined that the cause of death was smothering. However, final opinion regarding the cause of death was to be given after the receipt of the report of the Chemical Examiner. PW15 Kalandeen, maternal grand-father of deceased Tahira deposed that Tahira died in a mango garden but he did not know the name of the village and also did not know as to how Tahira died. However, he identified her dead body at time of post-mortem. PW16 Gayur, maternal uncle of deceased Tahira testified that he had no talk with Salim about the occurrence nor he knew when Kalandeen had any such talk with Salim about the occurrence. However, alongwith him, Kalandeen had identified the dead body of Tahira in the hospital.

PW17 Jubeda Begum, mother of deceased Tahira deposed that her daughter died in a village in Panchkula district and on receiving

-11information they reached General Hospital, Panchkula and identified her dead body. She further deposed that she did not know as to how and under what circumstances her daughter had died. She had also not sent her daughter to the house of Salim. She also stated that she did not know where her daughter had gone.

PW18 Inspector Arvind, the Investigating Officer testified about the recording of statement Ex.PQ of accused Shaukeen and deposed about the various steps taken by him during the investigation of the case.

PW19 ASI Bhushan Dass, who remained associated with the Investigating Officer in the entire investigation, corroborated the testimony of PW18 Inspector Arvind.

Apart from the above, learned Public Prosecutor tendered in evidence the report of the Forensic Science Laboratory. Both the convicts were, thereafter, examined under Section 313 Cr.P.C. but they denied all the allegations and pleaded false implication. Convict Salim took the stand that deceased Tahira had not been killed by him. Rather, dead body of some female had been forcibly handed over by the police to the relations of Tahira under the threat that if they did not receive the unidentified dead body, they would be implicated in the case. However, in defence both the convicts did not examine any evidence. The trial Court, after going through the evidence available on the record and hearing learned Public Prosecutor as well as the defence

-12counsel, accepted the prosecution case and, accordingly, convicted and sentenced Salim and Shaukeen of the charges, as mentioned above. This Court has heard Mr. Randhir Singh, Additional Advocate General, Haryana and Mr. Aman Bansal and Ms. Anjali Bansal, Advocates representing the two convicts and scanned the evidence with their able assistance.

The stand of the convicts is that the dead body alleged to have been recovered by the police is not that of Tahira, daughter of convict Shaukeen. Further, there is no proof or material available on the record to establish that Tahira had been done to death. However, during the recording of the evidence of the prosecution, no such stand had been taken by any of the two convicts or put to the witnesses. It was only during their examination under Section 313 Cr.P.C. that both the convicts denied the prosecution case. So much so that convict Salim for the first time pleaded that Tahira had not been killed by him, rather, dead body of some female had been forcibly handed over by the police to the relatives of Tahira under the threat that if the unidentified dead body was not received by them, they would be implicated in the case.

At the same time, no such plea as taken by Salim, was projected or adopted by convict Shaukeen. Even otherwise, it was convict Shaukeen, who had initially got recorded his statement Ex.

-13killing Tahira, had buried her dead body in the orchard. Further, both the convicts are permanent residents of Uttar Pradesh and engaged in the business of taking orchards on lease to earn their livelihood. In that regard, convict Salim had taken the orchard of PW10 Virender Singh in village Khangesra whereas convict Shaukeen moved on to Pathankot and taken an orchard of lichi on lease there. There is no material available on the record to indicate that the police had any reason to falsely implicate either of them in a criminal case, much less for the murder of daughter of one of them. On the contrary, the defence suggested to PW18 Inspector Arvind that the dead body of Tahira was found by the police itself and, thus, it was suggested that the deceased was neither murdered nor buried nor also she had any affair with Wasim @ Gola.

The tone and tenor of the suggestions put to PW18 Inspector Arvind leads to one and the only conclusion that the dead body recovered was of Tahira who was daughter of Shaukeen, one of the convicts. At the same time, the Court can rely upon the testimonies of PW15 Kalandeen, the maternal grand-father of the deceased, PW16 Gayur, maternal uncle of the deceased and PW17 Jubeda Begum, mother of the deceased, who unequivocally testified that the dead body excavated by the police, though it was putrefied, was that of Tahira and they had identified her dead body in General Hospital, Panchkula. Merely because these three star witnesses of the prosecution did not state anything about the motive for commission of the crime is no ground to reject the prosecution case to the extent that they had identified the dead body to be that of Tahira.

-14It has come in the testimony of PW5 Ms. Riti Saini, Senior Scientific Officer, Scene of Crime, Panchkula that on 23.10.2013, after receiving telephonic message from Incharge, Police Post Ramgarh, she reached village Khangesra, District Panchkula where Station House Officer, Police Station Chandimandir met her. ACP, Headquarters Panchkula and Incharge, Police Post Ramgarh were also present there. She inspected the spot and prepared detailed report Ex.PL. It was recorded by her therein that the affected place was at one corner of the orchard of Virender Singh and dry tree branches were lying there. Around six feet long, three feet wide and five feet deep area was dug. Foul smell was coming out of the affected spot. At a depth of three feet, white ashes started appearing in the soil.

Dried leaves and broken tree fragments were found inside the dug area. Ashes were available upto around four feet. Small little white pieces appearing to be some tissue part were also found alongwith ashes. The leaves of mango tree and tree branches just above the dug area were found blackened. White ashes were also spotted on the leaves on the lower side. Thus, from report Ex.PL, it is made out that the dead body of Tahira was first tried to be cremated in one corner of the orchard belonging to Virender Singh which was on lease with convict Salim. The resultant fire even blackened the leaves of mango tree on the tree branches just above the dug area. Further, the case of the prosecution is that PW6 Ms. Manita Malik was nominated as Duty Magistrate for the excavation of a dead body at village Khangesra.

-15where she met the Station House Officer who took her to the spot, which was a place in a mango garden. She further testified that the excavation was done by the police. Videography was also arranged to make a movie of the enquiry proceedings. Even a photographer took the photos of the place. After verification, it was found that there was nothing at that place in the form of any dead body but there were some symptoms of burning of some other material in the shape of ash and foul smell was coming out. She further deposed that the uncle and father of the deceased informed that the dead body had been shifted from that place to another place and, accordingly, everyone reached in the bed of local river where the uncle and the father of the deceased identified a place.

On examination of that place, it was found that there was some shrubs replanted in the area and, accordingly, that was dug out with the help of some persons and after digging, it was found that there was a plastic sheet in a wrapped condition. The wrapped plastic sheet when opened was found to contain remains of a woman's body. Foul smell was emitting from the same. On the basis of her observations, PW6 Ms.Manita Malik, prepared report Ex.PN. Thus, from the testimony of Ms. Manita Malik as well as from her report Ex.PN, it is made out that the dead body of Tahira was recovered from the bed of a local river/rivulet and at that time, the dead body had been wrapped in a plastic sheet.

The photographs taken at the time of taking out the dead body also indicate that it was convict Salim, who after identifying the place in question had got recovered the dead body of his niece Tahira.

-16record by PW9 Jasbir Singh.

While setting the law into motion by making statement Ex.PQ, convict Shaukeen had stated that his brother, convict Salim after killing his daughter Tahira in the mango orchard had buried her dead body there but, later on, due to fear of owner of the orchard, he had removed the dead body and buried the same in the river bed near village Alipur. To that an extent the statement Ex.PQ stands corroborated by PW5 Ms. Riti Saini, the Senior Scientific Officer and PW6 Ms. Manita Malik who was nominated as Duty Magistrate for the excavation of the dead body of Tahira. Further, from the conduct of convict Shaukeen in assisting the police during excavation of the place of Tahira from the second place i.e. from the river bed, it can safely be concluded that he was privy to the crime in which his brother Salim had smothered his daughter Tahira to death pursuant to the conspiracy hatched by them so as to save reputation of their family as Tahira had been having an affair with Wasim @ Gola and despite pressure being put upon her she had been insisting in marrying Wasim @ Gola and none else.

PW14 Dr. Sunil Gambhir Forensic Expert, who headed a team of doctors which conducted post-mortem on the dead body of Tahira, testified that though the dead body was putrefied and beyond identification yet it was duly identified by her family members. Further, some injuries were noticed on the dead body which were on the occipital region, nose and face. These injuries were ante-mortem in nature. The

-17time that elapsed between injury and death was variable and between death and post-mortem about two to four weeks. After going through the post-mortem report, he provisionally opined that the apparent cause of death was due to smothering. However, final opinion regarding cause of death was to be given after the Chemical Examiner's report. As per report of the Forensic Science Laboratory, no common poison was found in the viscera. Under these circumstances, it can safely be concluded that the death of Tahira had taken place on account of smothering. The defence cannot be heard saying that the deceased had committed suicide or died a natural death. So much so, that Shaukeen, who is father of the deceased, failed to say anything as to how his daughter died.

He even tried to deny the death of his daughter but it was so admitted by his wife and other family members. PW15 Kalandeen, maternal grand-father of the deceased, PW16 Gayur, maternal uncle of the deceased and PW17 Jubeda Begum, mother of the deceased failed to come up with any version to explain as to how the death of the deceased had taken place. Rather, PW17 Jubeda begum testified that she did not know under what circumstances her daughter had died, though, she admitted that she died at village Khangesra. Thus, it is held that the deceased was murdered pursuant to the criminal conspiracy hatched by the appellants.

Statement Ex.PQ made by Shaukeen on the basis of which the FIR was registered at Police Station Chandimandir on 23.10.2013 at 6.40 p.m., wherein he stated that his daughter had been murdered and

-18her dead body was buried, under the circumstance of the case, can be treated as his extra-judicial confession which is admissible in evidence. At that time, Shaukeen was not arrayed as an accused and no FIR stood registered against him. PW18 Inspector Arvind testified that statement Ex.PQ was made by Shaukeen without any pressure or coercion. There is, otherwise, no material on the record that said statement was made after the recovery of the dead body. Subsequent to registration of the FIR, Salim was arrested and pursuant to disclosure statement Ex.PMM made by him on 29.10.2013, he demarcated the place where the deceased was killed vide memo. Ex.PX, the place where the dead body was firstly buried vide memo. Ex.PY, the place where the dead body was buried for the second time vide memo. Ex.

PZ and the place where they burnt the bag of deceased Tahira containing clothes, etc. vide memo. Ex.PAA. Though PW11, who had witnessed the aforementioned memos. denied all the proceedings but he admitted his signatures thereon. His explanation that his signatures were obtained by the police on blank papers cannot be accepted. At the same time, there is also the testimony of PW19 ASI Bhushan Dass, who testified about the suffering of the disclosure statement and demarcation of the different places. So much so that he proved recovery memo. Ex.PSS pertaining to recovery of pillow and spade at the instance of Salim.

From the evidence available on the file, it stands proved that deceased Tahira was involved with her co-villager Wasim @ Gola and

-19intended to marry him. However, her parents were not agreeing for the same. At the same time, the prosecution left loose ends by not being able to produce Wasim @ Gola before the trial Court to support the prosecution version that the deceased was interested in him. PW18 Inspector Arvind made statement before the trial Court that despite sincere efforts and warrants of arrest against Wasim @ Gola, he could not be arrested or traced as he had left the given address. However, that by itself will not be sufficient to reject the prosecution case in its entirety.

In view of the above, no case is made out for any interference in the impugned judgment of conviction passed by the learned trial Court.

Coming to the issue of death sentence being awarded to the appellants for committing the offence under Section 302 read with Section 120-B IPC, this Court is of the considered view that though the appellants had killed Tahira as she was in relationship with Wasim @ Gola but at the same time, the murder of Tahira cannot be termed as honour killing. Had Wasim @ Gola been produced before the trial Court to confirm that the deceased was in relationship with him and was out to marry him but it were the appellants who were against the marriage of Tahira with Wasim @ Gola, it could be conclusively proved that it was a case of honour killing. The non-production of Wasim @ Gola in support of the prosecution evidence is sufficient to come to the conclusion that it was not a case of honour killing. Under these

-20circumstances, this Court is of the considered view that it is not a case of awarding death sentence to the convicts, namely, Salim and Shaukeen. On the other hand, both the convicts ought to be sentenced to undergo imprisonment for life for committing the offence under Section 302 read with Section 120-B IPC.

Resultantly, the conviction of Salim and Shaukeen convicts, under Sections 302/120-B, 120-B and 201 IPC are upheld. The sentence of death imposed upon the convicts under Sections 302/120-B IPC is not confirmed. Instead, both the convicts shall undergo imprisonment for life and to pay a sum of Rs.2,000/- each as fine and in default of payment of fine, to undergo simple imprisonment for one year. The sentences of imprisonment and fine alongwith their default clauses for the offences under Sections 120-B and 201 IPC are upheld. However, the substantive sentences of imprisonment awarded for the said offences shall run concurrently with the sentence of life imprisonment awarded under Sections 302/120-B IPC.

The reference is answered, accordingly and the appeal filed by the convicts partly allowed in the above terms. ( T.P.S. MANN ) JUDGE January 20, 2015 ( SHEKHER DHAWAN ) satish JUDGE