Criminal Appeal No. 76-DBA of 1997 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No. 76-DBA of 1997 Date of decision : 7.5.2008 State of Punjab .....Appellant Versus Anil Kumar @ Mani and others ...Respondents 2. Criminal Revision No. 925 of 1996 Mahesh Khanna .....Petitioner Versus Anil Kumar @ Mani and others ...Respondents **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. D.S. Brar, Deputy Advocate General, Punjab for the appellant. Mr. A.P.S. Deol, Senior Advocate with Mr. D.S.Sukarchakia,Advocate for the complainant. S. D. ANAND, J. Inspite of notice, none has put in appearance on behalf of the respondents/accused. However, in view of the fact that leave to appeal in this case had been granted by a Coordinate Bench as early as on 14.1.1997, we opted to examine the judgment of the Trial Court. The present appeal preferred by the State of Punjab, and also the Criminal Revision preferred by Mahesh Khanna-first informant against the respondents to call into question of validity of the judgment dated 12.6.1996 vide which learned Trial Judge acquitted the respondents/accused on a charge under Sections 302 read with Section 34, 120-B and 201 of the Criminal Appeal No. 76-DBA of 1997 -2- Indian Penal Code. It is beyond the pale of controversy that there were no eye witness to the impugned murders. The dead bodies of Sunit Vohra and Purnima Khanna, found lying by the road side on the passage leading to Urban Estate, were noticed by Sanjay Kumar, an SPO attached to Police Station, Focal Point, Ludhiana. On the notification of the offence, the police got post-mortem examination conducted on the dead bodies of two females above mentioned. On the basis of a secret information, PW-12 Inspector Balbir Chand Tiwari raided the premises being run under the name and style 'Bharat Motor Workshop' at Dugri Road, Ludhiana, on 18.11.1994 and arrested Anil Kumar and Avdesh Kumar respondents/accused. The duo were over there for getting a car repaired. On interrogation, respondents/accused Anil Kumar disclosed that he kept concealed the ornaments in the Almirah of his house and offered to get the same recovered. Thereafter, respondent/accused Anil Kumar led the police official afore-mentioned and the other recovery witnesses to his house and got the recovery of diamond ring Ex. P 10, diamond earring Ex. P11 and bracelet Ex. P12 effected from an Almirah. Thereafter, respondent/accused also led the police party to Doraha and indicated the place where deceased had been murdered. An empty fired from 9 mm pistol was recovered by the police from the spot. On 19.11.1994, respondent/accused Avdesh Kumar made a disclosure statement (Ex. PV/1) in pursuance whereof, he led to the recovery of half burnt seat covers which were taken into possession vide memo Ex. PV/2. On 20.11.1994, respondent/accused Anil Kumar was taken by the Police to 'Hamir Exports' located in Industrial Area-A, Ludhiana. At that time, Mahesh Khanna was also accompanying the party and from there Criminal Appeal No. 76-DBA of 1997 -3- respondents/accused Sarabjit Singh and Gurmit Singh were arrested. A personal search of respondent/accused Sarabjit Singh led to the recovery of photograph of Sunit Vohra and also a chit containing some addresses and telephone numbers, along with currency notes of the value of Rs. 150/- contained in a purse. Apart therefrom, Sarabjit Singh was found to carry a golden chain and a diamond locket in his pocket. Likewise, currency notes of Rs. 15/- were recovered from the person of Gurmit Singh respondent/accused. A golden chain and a golden ring were also recovered from the pocket of the pant worn by him. On 21.11.1994, respondent/accused Anil Kumar was interrogated in the presence of SI Niranjan Singh and ASI Kulwant Singh. He made a disclosure statement that he had kept concealed one 3 mm pistol in his factory and he offered to get the same recovered. In pursuance of that disclosure statement, he got recovery of pistol Ex. P 17 and live cartridges Ex. P18 and Ex. P19 effected. In a test identification parade held on 16.1.1995, Mahesh Khanna identified the jewellery articles recovered at the instance of Anil Kumar respondent/accused to be that of Sunit Vohra. The finding of acquittal recorded by learned Trial Judge was based on the following circumstances:- a) The prosecution had not been able to prove any motive which could have actuated the respondents/accused to commit the crime with which they had been charged. In that context, it was noticed that if robbery had been the motive, the culprits would not have allowed a large number of gold and diamond ornaments to stay on the dead body of the deceased Purnima Khanna. Criminal Appeal No. 76-DBA of 1997 -4- b) It was difficult to accept that respondent Anil Kumar would have retained the fire arm, allegedly used in the impugned occurrence, in his own factory located in the Industrial Area, Ludhiana. c) The only independent witness namely Iqbal Singh, in whose presence empty had been recovered from the spot, had not been examined at the trial. d) Dr. S.K. Sharma who had conducted the post-mortem examination on the dead bodies of deceased females had found that “the fire arm injury found the head of the deceased could not have been caused with a cartridge of 9 mm pistol in view of the dimensions of the entry wound.” On the basis of the prosecution evidence, learned Trial Judge noticed that the Investigating Officer was guilty of having fabricated evidence. The following observations were recorded by the learned Trial Judge in the relevant behalf:- “48. There is thus no escape from the conclusion that both Sarabjit Singh and Gurmit Singh had been arrested two days before than actually shown to have been arrested. In the circumstances the recovery of some of the golden ornaments, a photo of Sunita deceased and a chit containing some telephone nos. from them becomes extremely suspicious. It is also surprising that the ornaments alleged to have been recovered from the personal search of Gurmit Singh and Sarabjit Singh could not have been found when their persons were searched Criminal Appeal No. 76-DBA of 1997 -5- for the first time and the obvious inference thus is that the evidence in regard to the recovery of a golden chain and diamond locket from the pocket of the pant worn by Sarabjit Singh and a golden ring and a chain from the pocket of the pant worn by Gurmjit Singh during the subsequent searches of their persons was simply fabricated. 49. Concededly, the pistol alleged to have been recovered at the instance of Anil Kumar is his licensed pistol and in such premise it is difficult to accept that Anil Kumar would have kept the same concealed in his factory. The testimony of Investigating Officer that Anil Kumar, on interrogation in the presence of SI Niranjan Singh and ASI Kulwant Singh had suffered a disclosure statement leading to the recovery of a pistol from his factory in the Industrial Area, has thus simply to be rejected as unworthy of credence. Needless to say that Shri Jagdish Kapoor (PW6) has clearly and categorically statede that the licensed pistol of Anil Kumar was taken away but Inspector Tiwari on 18.11.1994 itself. Evidently, Inspector Tiwari has thus resorted to falsehood and no reliance can thus be placed on his testimony. 50. When the Investigation is not above board and fair, it is also difficult to accept that the empty case which according to the report of the Forensic Science Laboratory has been fired from the licensed pistol of Anil Kumar, was actually recovered from the scene of crime. The only independent witness, namely Iqbal Singh in whose presence the empty case is alleged to Criminal Appeal No. 76-DBA of 1997 -6- have been recovered, has not come forward to lend corroboration to the testimony of Inspector Tiwari and the obvious inference thus is that he is not prepared to support this aspect of the prosecution story.” The reasoning recorded by the learned Trial Judge for discarding the prosecution plea on the basis of the above facts is appropriate and we affirm the correctness thereof. The facts noticed by the learned Trial Judge go a long way to prove that case against the respondents/accused had not been clinchly proved and they were entitled to be benefit of doubt. In the light of the foregoing discussion, we are clear in our mind that the finding of exoneration recorded by the learned Trial Judge and also the reasoning noticed in support thereof, is in order and does not call for any interference. We have examined the impugned finding on the touch stone of the parameters laid down by the Apex Court in Ramesh Babulal Vs. State of Gurarat, AIR 1996 SC 2035, Jaswant Singh Vs. State of Haryana AIR 2000 SC 1833 and Main Pal Vs. State of Haryana AIR 2004 SC 2158 for adjudication of a such like controversy. In the light of the foregoing discussion, we have no hesitation in holding that the present plea must be invalidated and we so order accordingly. The State appeal and also Criminal Revision preferred by Mahesh Khanna shall stand dismissed. ( S. D. ANAND ) JUDGE May 07, 2008 (ADARSH KUMAR GOEL) Pka JUDGE Criminal Appeal No. 76-DBA of 1997 -7-