Judicial Analysis Court Copy Headnote Facts Arguments Court observation

PUNJAB AND HARYANA HIGH COURT
A.B. Chaudhari and Surinder Gupta, JJ.
State of Haryana and Ors. —Appellants
versus
Padam @ Parmod and Ors. —Respondents
MRC No.2 of 2016 ; CRA-D-90-DB of 2016 (O&M) ; CRA-D-91-DB of 2016 (O&M) ; CRA-D-99-DB of 2016 (O&M) ; CRA-D-107-DB of 2016 (O&M) ; CRA-D-108-DB of 2016 (O&M) ; CRA-D-187-DB of 2016 (O&M)
Decided on 19.3.2019

Advocates:
Counsel for the Parties:
Mr. Deepak Sabharwal, Addl. AG, Haryana
Mr. Vinod Ghai, Senior Advocate with Ms. Kanika Ahuja, Advocate for the convict-Sunil @ Mada
Mr. N. S. Shekhawat, Advocate for convict-Sarvar @ Billu
Mr. Rajiv Vij, Legal Aid Counsel for convict-Rajesh @ Ghochru
Mr. Pradeep Virk, Advocate for the convicts-Padam @ Parmod and Manbir @ Manni
Mr. Arun Sharma, Advocate for convict-Sunil @ Sheela

IMPORTANT POINTS
(1) Executive Magistrate is a Magistrate for the purposes of Section 26 of Evidence Act.
(2) Duty of court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from expressions used in statute.

Headnote:(A) Indian Penal Code, 1860 – Sections 302, 376-D, 366, 201 read with Section 120-B – Criminal Procedure Code, 1973 – Section 366 – Kidnapping, rape, murder and screening of evidence – Death sentence and life sentence awarded to convicts – Death reference – Story of rape and murder corroborated by medical evidence – Recovery of incriminating articles was in exclusive knowledge of accused persons and they led police party, public witnesses as well as Executive Magistrate and Naib Tehsildar to various spots from where recoveries were made – Accused did not explain in his statement under Section 313 Cr. P.C. as to how there was semen on his underwear – Though, said circumstance may not be conclusive but is definitely corroborative in absence of any explanation by him in his statement under Section 313 Cr. P.C. – Crux of circumstantial evidence is quite conclusive against each of accused – Prosecution has proved its case beyond any doubt much less reasonable doubt – In addition, findings recorded by medical board which conducted post mortem of dead body in minute details clearly corroborate confessions of all accused persons recorded in immediate presence of Executive Magistrate – Death sentence awarded by trial Court to all accused persons was only sentence that could be awarded – Conviction and sentence affirmed – Sentence of fine imposed by trial Court substituted. (Paras 44, 46, 47, 53, 54 and 55)
       (B) Indian Evidence Act, 1872 – Section 26 – Whether expression ‘Magistrate’ appearing in Section 26 of Evidence Act would only mean Judicial Magistrate or would include Executive Magistrate – Executive Magistrate is a Magistrate for the purposes of Section 26 of Evidence Act – Proof or admissibility of such confession cannot ‘be all and end all’ of matter – Admissible evidence of confession as per Section 26 of Evidence Act is one of pieces of evidence and may require corroboration in given circumstances. (Para 41)
       (C) Interpretation of Statute – Rule of Literal Construction – Court, in process of interpretation, cannot lay down what is desirable in its own opinion, if from words used, legislative intention is otherwise discernible – Duty of court is not to lay down what is desirable in its own opinion – Its duty is to state what is discernible from expressions used in statute – Court can also traverse to an extent to see what is decipherable but not to the extent of laying down something desirable according to court if legislative intent is otherwise not discernible – What is desirable is jurisdiction of law-maker and only what is discernible is that of court. (Para 36)
       Result: Appeals Partly allowed.

JUDGMENT

A.B. Chaudhari, J.—By this common judgment and order, above said all the appeals/MRC are being disposed of.

2. Being aggrieved by the judgment/order dated 18.12.2015/21.12.2015, in Sessions Case No.61/2015, passed by the learned Additional Sessions Judge, Rohtak, by which the appellants/accused persons, namely Padam @ Parmod, Pawan, Sarwar @ Billu, Manbir @ Manni, Rajesh @ Ghochru, Sunil @ Mada and Sunil @ Sheela were convicted for commission of offence punishable under Sections 302, 376-D, 366, 201 read with Section 120-B of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced, the present appeals were filed by the appellants/accused persons. They have been sentenced as under:—

“I. The convicts Rajesh @ Ghouchru, Pawan, Sunil @ Mada, Padam @ Parmod, Sarwar @ Billu, Manbir @ manni and Sunil @ Sheela are sentenced to death for offence punishable under section 302 read with Section 120-B of Indian Penal Code. Accordingly the convicts be hanged by neck till they are dead. Fine of Rs.50,000/-to each of the convict is also imposed and in default of payment of fine such convict shall undergo imprisonment for a period of two months.

II. Life imprisonment which shall mean imprisonment for the remainder of their natural life for the offence under section 376-D read with Section 120-B of Indian Penal Code and fine of Rs.50,000/- each. In default of payment of fine simple imprisonment for a period of two months.

III. Ten years rigorous imprisonment for offence under section 366 read with Section 120-B of Indian Penal Code and fine of Rs.20,000/- each. In default of payment of fine, simple imprisonment for a period of two months.

IV. Seven years rigorous imprisonment for offence under section 201 read with Section 120-B of Indian Penal Code and fine of Rs.20,000/- each. In default of payment of fine, simple imprisonment for a period of two months.

V. Life imprisonment for offence under section 377 of Indian Penal Code and fine of Rs.50,000/- to convict-Rajesh @ Ghochru. In default of payment of fine, simple imprisonment for a period of two months.”

The sentence of death having been awarded, reference has been made to this Court registered as MRC No.2 of 2016. Hence, both, the appeals and MRC are taken together for disposal.

Facts

3. Briefly stated, the prosecution case is that PW1-Surat Singh noticed a dead body lying in the field under his cultivation and some dogs were gnawing upon it and was also partially eaten. PW41-ASI Baje Singh along with PW17 HC Satish No.73 reached the spot and carried out initial formalities and also recorded the statement of PW1-Surat Singh leading to registration of FIR No.57 dated 04.02.2015, for offence punishable under Sections 302 and 201 of IPC, at Police Station Sadar Rohtak. They recovered blood stained earth, strands of hair, pieces of blood stained stones, one Salwar and one Sweater of black and white strips. Thereafter, they removed the dead body and kept in the mortuary where PW2-Amar along with PW5-Janki saw the dead body and they identified it as that of their sister (later referred to as ‘M’) who went missing since 01.02.2015. PW5-Janki had filed a report registered as FIR No.22 dated 01.02.2015, under Section 346, at Police Station PGIMS, Rohtak with the description of the deceased as height 4’9” and aged about 27/28 years. PW2-Amar and PW5-Janki disclosed that the deceased was mentally ill and was brought from Nepal to Rohtak and was residing at the house of PW5-Janki, her sister.

Next day, postmortem was conducted by the Board of doctors of PGIMS, Rohtak which noticed several injuries on the person of the deceased including an injury of 9x7 cm over the top of head. They also removed one piece of stone from the anal canal of deceased and another piece of stone from the abdominal cavity besides one condom. The Board recorded the cause of death as cranio-cerebral damage along with uterovaginal rupture & rupture of large gut, rectum & anus ante-mortem in nature and the death was h

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IMPORTANT POINTS(1) Executive Magistrate is a Magistrate for the purposes of Section 26 of Evidence Act.(2) Duty of court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from expressions used in statute.

Cases Referred (4)

IMPORTANT POINTS
(1) Executive Magistrate is a Magistrate for the purposes of Section 26 of Evidence Act.
(2) Duty of court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from expressions used in statute.