Crl. Appeal No.216-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.216-DB of 1998 Date of Decision: 01.02.2008 Daljit Singh and another. ....Appellants. Versus State of Punjab. ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. D.S. Pheruman, Advocate for the appellants. Mr. S.S. Bhinder, Addl. A.G., Punjab for the respondent. ... J.S. Khehar, J. The instant appeal has been filed by Daljit Singh and Lakhbir Singh against the judgement rendered by the Additional Sessions Judge, Amritsar, in Sessions case No.120 of 1997, decided on 18.2.1998, wherein the appellants have been held guilty of the murder of Karaj Singh, as also, against the order dated 18.2,1998 by which both the appellants – Daljit Singh and Lakhbir Singh have been sentenced to life imprisonment and to pay a fine of Rs.2,000/- each. In default of payment of fine, they have been ordered to further undergo rigorous imprisonment for a period of six months. The prosecution version of the incident is, that deceased – Crl. Appeal No.216-DB of 1998 2 Karaj Singh was a milk vendor. He used to go daily from his residence at about 6 P.M. in the evening to village Kalas to collect milk from different houses and he used to return to his residence at about 9/10 P.M. after having collected the milk. Likewise, on 20.7.1996, he was alleged to have left his residence at about 6 P.M. for the purpose of collecting milk, but he did not return home till late in the night. His two sons, Tarsem Singh PW1 and Jaspal Singh PW11, are stated to have gone out to search for their father on foot. While they were proceeding from their residence to Village Kalas on a 'kacha' passage at about midnight, they found the body of their father Karaj Singh alongside the fields of Bhagwan Singh. Their father Karaj Singh had been murdered with a sharp edged weapon. He had been beheaded. His cycle and two milk drums were also found lying on the ground nearby. Tarsem Singh PW1 left his brother Jaspal Singh PW11 with the body of deceased - Karaj Singh and proceeded towards Village Kalas which is at a distance of about 3 furlongs from the place of occurrence. On reaching Village Kalas, he informed Amarjit Singh and Jagir Singh about the incident. Both Amarjit Singh and Jagir Singh accompanied Tarsem Singh PW1 to the place of occurrence. After taking Sarpanch Sajjan Singh from his residence, they proceeded towards Police Station, Khem Karan to lodge their report. On their way, they met SI Anokh Singh PW9, who recorded the statement of Tarsem Singh PW1 at 5.50 AM. After having recorded his statement, SI Anokh Singh accompanied the complainant and the others with him, to the place of occurrence. A First Information Report bearing No.36 was registered at Police Station, Khem Karan in police district Taran Tarn, on the intervening night of 20/21.7.1996 at 5.50 A.M. SI Anokh Singh PW9 prepared the inquest report of the dead body of Karaj Crl. Appeal No.216-DB of 1998 3 Singh on 21.7.1996 itself. The aforesaid report reveals, that two moulds of the footprints at the site of the incident were also taken. SI Anokh Singh PW9 then sent the dead body of Karaj Singh for postmortem examination. The postmortem examination of the dead body of Karaj Singh was conducted by Dr. Sham Lal Gupta PW5 on 21.7.1996 at 11.30 A.M. In the opinion of Dr. Sham Lal Gupta PW5, the head neck had been separated from the trunk of the body, which was sufficient to cause death in the ordinary course of nature. He also opined, that the aforesaid injury was ante-mortem in nature and had been caused by a sharp edged weapon. On the completion of investigation, a challan was presented in the Court of the Judicial Magistrate Ist Class, Patti, on 14.9.1996. The Judicial Magistrate Ist Class, Patti committed the case to the court of Session for trial. On 28.11.96, the Additional Sessions Judge, Amritsar, framed charges against accused Daljit Singh and Lakhbir Singh for having committed the offence of murder of Karaj Singh, punishable under Section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code. Both the accused were confronted with charge to which they pleaded not guilty and claimed trial . During the trial of the case, the prosecution examined Tarsem Singh son of deceased - Karaj Singh as PW1. In his deposition, Tarsem Singh PW1 re-affirmed the factual position expressed by him when he made the complaint of the occurrence to SI Anokh Singh PW9 on 21.7.1996. Balbir Singh appeared as PW2. Balbir Singh is a chance witness, who had met appellants - Daljit Singh and Lakhbir Singh armed with a sword alongside the fields of Bhagwan Singh on 20.7.1996, where the dead body of deceased - Karaj Singh was found beheaded at about 8.45 Crl. Appeal No.216-DB of 1998 4 P.M. on the following day i.e. on 21.7.1996. He identified the two accused, Daljit Singh and Lakhbir Singh, who were present in the Court when his statement was recorded. Mehal Singh, Member Panchayat of Village Darajke appeared as PW3, who deposed, that the accused/appellants - Daljit Singh and Lakhbir Singh had made an extra judicial confession to him and required him to help by producing them before the police. In his statement, Mehal Singh PW3 affirmed, that the two accused/appellants - Daljit Singh and Lakhbir Singh had confessed to him that they had murdered Karaj Singh at Village Kalas. They informed him, that the police was searching for them and requested him to produce them before the police. The two appellants - Daljit Singh and Lakhbir Singh were, accordingly, handed over to SI Anokh Singh PW9 by Mehal Singh PW3 on 1.8.1996. In his cross– examination, Mehal Singh PW3 asserted, that he used to visit Village Kalas in connection with his party functions. He claims to be a “comrade”, and that, his association with Lakhbir Singh was on account of his party activities. The accused - Lakhbir Singh, according to the statement of Mehal Singh PW3, used to arrange party meetings. Mehal Singh PW3, however, claimed to have met accused/appellant - Daljit Singh for the first time on that date. The statement of Dr. Roshan Lal, Medical Officer PHC Khem Karan, was recorded as PW4. Dr. Roshan Lal PW4 proved the medico-legal report Ex. PB, as well as, pictorial diagram showing the seats of the injuries inflicted on the body of the deceased - Karaj Singh, Ex. PB/1. The statement of Dr. Sham Lal Gupta, Chief Medical Officer, Civil Hospital, Patti, who conducted the postmortem examination on the dead body of Karaj Singh on 21.7.1996, was recorded as PW5. The statement of Amrit Kaur, wife of Karaj Singh, was recorded as PW6. In her statement, Crl. Appeal No.216-DB of 1998 5 she disclosed the motive for the accused/appellants to have committed the crime. As per the version of Amrit Kaur PW6, about 4/5 months prior to the date of occurrence, some unidentified persons had allegedly beaten up the accused/appellant - Daljit Singh. The appellant – Daljit Singh suspected, that deceased - Karaj Singh had got him beaten up. Deceased - Karaj Singh had informed Amrit Kaur PW6, 7/8 days prior to the date of occurrence, that the two accused/appellants Daljit Singh and Lakhbir Singh had met him and told him, that Daljit Singh had been got beaten by deceased - Karaj Singh, and that, her husband Karaj Singh had denied the aforesaid fact to the accused - Daljit Singh and Lakhbir Singh when they had confronted him with the said accusation. LC Puran Singh appeared as PW7, and tendered into evidence his affidavit Ex. PE affirming the fact, that on 21.7.1996, the special reports relating to the case which had been handed over to him by MHC Surjit Singh, were further handed over by him to the higher authorities. Balbir Singh who appeared as PW8 affirmed, that he had lifted shoe moulds of two feet, one of the left foot and the other of the right foot, from near the dead body. According to his cross- examination, the moulds had been lifted in the presence of a large number of persons belonging to Village Kalas. The statement of SI Anokh Singh, the Investigating Officer, was recorded as PW9. His statement affirms, that Tarsem Singh PW1 had made a complaint to him on 21.7.1996, and that, he had recorded his statement and obtained his signatures. He also affirmed having visited the spot and prepared the inquest report. His deposition affirms, that he required the preparation of the shoe moulds from the place of occurrence. SI Anokh Singh PW9 corroborated the statement made by Mehal Singh PW3, to the effect, that the two accused/appellants Daljit Crl. Appeal No.216-DB of 1998 6 Singh and Lakhbir Singh had been brought to him by Mehal Singh PW3, on 1.8.1996. SI Anokh Singh PW9 also affirmed, that he had recovered a pair of shoes belonging to Lakhbir Singh and taken possession of the same vide memo Ex.PQ. The Investigating Officer also deposed, that during the course of interrogation, the accused/appellant – Lakhbir Singh had made a disclosure statement to him on 4.8.1996 to the effect, that he had hidden a sword in the house of the accused/appellant – Daljit Singh, resident of Village Kalas, under a heap of wheat chaff. After the disclosure statement Ex. PR, one blood stained 'kirpan' was recovered and taken into possession vide memo Ex. PJ. The statement of Rishi Ram, Draftsman, District Courts, Amritsar, was recorded as PW10. He had prepared the scaled site plan Ex.PX. The statement of Jaspal Singh PW11, the second son of the deceased – Karaj Singh was recorded as PW11. He is a witness to the memo Ex.PJ, as well as, Ex.PR, referred to hereinabove. The statement of Head Constable Nirmal Singh was recorded as PW12. He tendered into evidence his affidavit Ex. PY. The dead body of Karaj Singh was handed over to him for postmortem examination at the place of occurrence at 9 A.M. After having got the postmortem on the dead body of deceased – Karaj Singh conducted, Head Constable Nirmal Singh PW12 had handed over the body of Karaj Singh to his heirs. The prosecution evidence was closed on 15.12.1997. The statements of the accused/appellants - Daljit Singh and Lakhbir Singh under Section 313 of the Code of Criminal Procedure were recorded on 22.12.1997. The accused/appellant - Daljit Singh in his statement asserted, that he was innocent and that had been falsely implicated. According to Daljit Singh, the complainant party belongs to Crl. Appeal No.216-DB of 1998 7 Sajjan Singh, Sarpanch who is inimical to him as he, as well as, his family does not support Sajjan Singh during the course of elections. The accused/appellant - Lakhbir Singh, while asserting his innocence alleged, that he being the elder brother of the brother-in-law of the accused - Daljit Singh, had been implicated on account of his relation with Daljit Singh. In their defence, the appellants produced Gurmukh Singh as DW1. The aforestated witness produced the summoned record from Police Station, Khem Karan. Kuljot Joshi, Election Kanungo, District Election Officer, Amritsar, was produced as DW2. He had produced the record summoned from the office of the District Election Officer. Kashmira Singh was the last witness produced on behalf of the appellants. He recorded his statement as DW3. He affirmed his affinity with the deceased – Karaj Singh, and also, the fact that the accused/appellant - Daljit Singh was not on good terms with the deceased – Karaj Singh, and that, their differences were on account of Sajjan Singh and elections to the post of Sarpanch. The Additional Sessions Judge, Amritsar vide his judgement dated 18.2.1998 found the accused/appellants – Daljit Singh and Lakhbir Singh guilty of having committed the murder of Karaj Singh, and he, accordingly, convicted them under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code. By a separate order dated 18.2,1998, after they had been heard on the question of sentence, both the accused/appellants were sentenced to life imprisonment and to pay a fine of Rs.2,000/- each. In default of payment of fine, they were ordered to further undergo rigorous imprisonment for a period of six months. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgement rendered by the Additional Sessions Crl. Appeal No.216-DB of 1998 8 Judge, Amritsar, reveals that the conviction of the accused/appellants – Daljit Singh and Lakhbir Singh was based on circumstantial evidence i.e. the last seen evidence brought out through the testimony of Balbir Singh PW2 also a chance witness, besides the extra judicial confession recorded by the appellants before Mehal Singh PW3, Member Panchayat of Village Darajke, who was also allegedly known to the accused/appellant - Lakhbir Singh on account of their party activities, besides the production of the sword allegedly used in the crime produced on the disclosure statement of the accused/appellant – Lakhbir Singh. The motive for having committed the crime emerges from the statement of Amrit Kaur PW6, the wife of deceased – Karaj Singh. Reference was also made to the shoe moulds lifted from the site of occurrence which matched with the shoes of the accused/appellant - Lakhbir Singh. During the course of hearing, learned counsel for the appellants vehemently contended, that none of the circumstances alleged in the prosecution story connect the accused with the crime. So far as motive is concerned, no motive was ever alleged in the FIR or in the inquest report or in any subsequent supplementary statement at the hands of the complaint – Tarsem Singh PW1. It is also alleged, that Tarsem Singh PW1 was the son of deceased – Karaj Singh. If there was any suspicion entertained by the family members of the deceased, the same would have been known to the sons of the deceased. It is the contention of the learned counsel for the appellants, that the disclosure of the motive by the deceased – Karaj Singh to his wife Amrit Kaur PW6 and not to his two children Tarsem Singh PW1 and Jaspal Singh PW2, is neither logical nor acceptable. It is the second contention of the learned counsel for the Crl. Appeal No.216-DB of 1998 9 appellants, that Balbir Singh PW2, who had allegedly seen the appellants on the date of the incident near the fields of Bhagwan Singh, had admitted in his cross-examination, that he had reached the place of occurrence again at 7 A.M. on 21.7.1996. It is the vehement contention of the learned counsel for the appellants, that if Balbir Singh PW2 had actually seen the appellants at the place of the occurrence, he would have disclosed the same at the first opportunity when he reached the place of the occurrence at 7 A.M. on the following morning on 21.7.1996. It is, therefore, the contention of the learned counsel for the appellants, that there was no suspicion, whatsoever, at the hands of the complainant as is evident from the first statement recorded by the complainant, immediately after finding the dead body of his father Karaj Singh, wherein he had asserted, that someone had murdered his father on the previous night, without disclosing any suspicion to the effect, that the murder of his father could have been at the hands of the accused/appellants - Daljit Singh and Lakhbir Singh. In so far as the extra judicial confession recorded by the accused/appellants, before Mehal Singh PW3 on 1.8.1996 is concerned, it is asserted, that Mehal Singh PW3 belongs to Village Darajke, whereas the murder had taken place at Village Kalas. It is the contention of the learned counsel for the appellants, that Village Darajke falls in the area of Police Station Bhikhiwind, where Village Kalas falls in the area of Police Station Khem Karan. It is, therefore submitted, that Mehal Singh belongs to a different area and police station, and therefore, could not have used his influence so as to protect the appellants from police torture at Police Station, Khem Karan. In his fourth submission, learned counsel for the appellants Crl. Appeal No.216-DB of 1998 10 found fault in the version of the prosecution evidence, in so far as the recovery of the pair of shoes of Lakhbir Singh, and also, the evidence produced by the prosecution that the shoes recovered from the accused/appellant - Lakhbir Singh matched with the moulds lifted from the place of occurrence, is concerned. It is submitted, that the shoes had been removed from the feet of the accused/appellant - Lakhbir Singh on 1.8.1996 in the presence of Mehal Singh PW3. However, Mehal Singh PW3 did not make any statement to the aforestated factual position while appearing on behalf of the prosecution during the course of the instant trial. In his last contention, learned counsel for the appellants has assailed the veracity of the disclosure statement made by Lakhbir Singh – appellant on 4.8.1996 asserting, that he had hidden a 'kirpan' in the house of appellant - Daljit Singh in a heap of wheat chaff. In this behalf, it is submitted by the learned counsel for the appellants, that the 'kirpan' recovered from the house of Daljit Singh – appellant, has not been linked with either of the accused/appellants, nor the same can be stated to be linked with the murder of deceased – Karaj Singh on account of the fact, that it had not been established, that the blood on the recovered sword was that of deceased - Karaj Singh. In the absence of a report at the hands of a Serologist connecting the blood on the recovered sword with that of deceased – Karaj Singh, according to the learned counsel, recovery of the sword does not constitute a valid piece of evidence in so far as the murder of deceased – Karaj Singh is concerned. We have given thoughtful consideration to the submissions made by the learned counsel for the accused/appellants and have examined the same in the background of the evidence produced by the prosecution. Crl. Appeal No.216-DB of 1998 11 There is no doubt about the fact, that only circumstantial evidence has been produced in the instant controversy to prove the murder of the deceased – Karaj Singh. Whenever a conviction is based on circumstantial evidence, care and caution should be taken to ensure, that an innocent person is not roped into a crime. The only issue that needs to be adjudicated while deciding the present appeal is, whether the circumstantial evidence produced by the prosecution was sufficient to convict the appellants – Daljit Singh and Lakhbir Singh. On the issue of circumstantial evidence, the legal position came to be expressed by the Apex Court in Hanumant Givind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 Supreme Court 343, wherein it was held as under:- “.....In dealing with the circumstantial evidence the rules specifically applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. Vs. Hodge (1838)2 Lew wherein he said: “The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.” It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established,and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Crl. Appeal No.216-DB of 1998 12 Again, the circumstances should be of a conclusive nature and tendency and they should be such at to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.....” The parameters referred to above, came to be crystalised in Ashok Kumar Chatterjee Vs. State of Madhya Pradesh, AIR 1989 Supreme Court 1890, wherein it was held as under:- “30. .....This Court in a line of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation or any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocent.” The aforesaid parameters were approved recently by the Supreme Court in Shivu Vs. Registrar General, High Court of Karnataka (2007) 4 SCC 713 and in State of U.P. Vs. Satish (2005) 3 SCC 114. Crl. Appeal No.216-DB of 1998 13 Before we examine whether or not the parameters laid down by the Supreme Court on the law of circumstantial evidence are satisfied, it will be necessary to summarise the totality of the evidence produced by the prosecution to prove the guilt of the accused/appellants – Daljit Singh and Lakhbir Singh. The same is, accordingly, being summarised in the following four paragraphs. A perusal of the statement of Mehal Singh PW3 reveals, that the two appellants recorded their extra judicial confessions to Mehal Singh PW3 affirming, that they had committed the murder of Karaj Singh. Mehal Singh PW3 on 1.8.1996, besides being a Member Panchayat of Village Darajke, is also closely associated with the accused/appellant - Lakhbir Singh as both of them belong to the same party, inasmuch as, both are “comrades”. According to the statement of Mehal Singh PW3, the accused/appellant - Lakhbir Singh used to arrange party meetings for them. There cannot be any reason for us to doubt the testimony of Mehal Singh PW3, who had facilitated the arrest of the accused/appellant – Daljit Singh and Lakhbir Singh on account of the fact, that the said assertion stands corroborated by SI Anokh Singh PW9 to the effect, that the accused/appellants Daljit Singh and Lakhbir Singh had been brought to him by Mehal Singh PW3 on 1.8.1996. Additionally, it would be pertinent to mention, that Mehal Singh PW3 had signed the recovery memo Ex.PQ as an attesting witness on 1.8.1996 i.e. on the same day on which the accused/appellants were arrested. It would be pertinent to mention, that vide memo Ex.PQ, a pair of shoes belonging to the accused – Lakhbir Singh were taken into possession. Mehal Singh PW3 was extensively cross- examined and he fully withstood the same. Crl. Appeal No.216-DB of 1998 14 The testimony of Balbir Singh PW2 is in the nature of last seen evidence. Balbir Singh PW2 was neither an interested witness, nor was he inimical to either of the accused/appellants Daljit Singh and Lakhbir Singh, and as such, there was no justification for him to make a