Crl.Appeal No. 611-DBA of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision:17.8.2011 (I) Crl.Appeal No.611-DBA of 2002 State of Punjab ... Appellant versus Iqbal Singh ... Respondent (II) Crl.Appeal No.612-DBA of 2002 State of Punjab ... Petitioner versus Iqbal Singh ... Respondent CORAM: HON'BLE MR. JUSTICE S.S.SARON. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Amarjit Singh Jatana, Addl.AG, Punjab, for the appellant-State. Mrs.Baljit Kaur Mann, Advocate, and Mr.Pavittar Singh Grewal, Advocate, for the respondent. ... JORA SINGH, J. State of Punjab has filed Crl.Appeal No.611-DBA of 2002 and Crl.Appeal No.612-DBA of 2002 against the judgment of acquittal dated 24.8.2001 passed by Additional Sessions Judge, Sangrur, in Sessions Case Nos.15 and 11 dated 19.4.1995, arising out of FIR No.7 dated 25.1.1995 under Section 302 of the Indian Penal Code ( IPC for short), PS Amargarh, and FIR No.8 dated 2.2.1995 under Sections 25/27/54/59 of the Arms Act, PS Amargarh, respectively. Prosecution story, in brief, is that Albel Singh, complainant (PW2), resident of Village Jabo Majra, at about 7.30 pm on 25.1.1995 was present in his house, then heard the sound of gun shots from the house of Baldev Singh (deceased). He had gone to the house of Baldev Singh and Crl.Appeal No. 611-DBA of 2002 2 noticed the dead body of Baldev Singh lying at the entrance gate of the house. After that, the complainant along with Joginder Singh, Chowkidar, had gone to lodge a report. Near the Bus Stand of Village Chaunda, police party headed by SI Kirpal Singh met them. Then statement (Ex.PG) of Albel Singh was recorded by SI Kirpal Singh at 9.05 pm. After making an endorsement, statement (Ex.PG) was sent to the police station, on the basis of which, formal FIR (Ex.PAA/1) was recorded. Special report was delivered to the Ilaqa Magistrate at 7.00 am on 26.1.1995. SI Kirpal Singh along with other police officials, Albel Singh, complainant, and Joginder Singh, Chowkidar, had gone to the spot. Dead bodies of Baldev Singh, Harbans Kaur and Manjit Kaur were found lying in the house of Baldev Singh. One empty cartridge was lying near the dead body of Baldev Singh and two empty cartridges were found lying near the dead body of Manjit Kaur. Empty cartridges were taken into police possession after the same were made into a sealed parcel, sealed with the seal bearing impression `KS', vide memo (Ex.PT) attested by the witnesses. Blood stained earth was lifted from the spot and made into a sealed parcel, sealed with the seal bearing impression `KS'. Sealed parcel was taken into police possession vide memo (Ex.PS) attested by the witnesses. Seal after its use was handed over to ASI Nahar Singh. Inquest reports (Ex.PB, Ex.PE and Ex.PK) regarding the dead bodies of Manjit Kaur, Baldev Singh and Harbans Kaur, respectively, were prepared, and the same were attested by Bhajan Singh and Jora Singh. Dead bodies of Manjit Kaur, Baldev Singh and Harbans Kaur were sent to the hospital for post mortem examination along with applications, Ex.PC, Ex.PF and Ex.PI, respectively. After post mortem examination, dead body of Baldev Singh was received by Albel Crl.Appeal No. 611-DBA of 2002 3 Singh, complainant, and of Manjit Kaur and Harbans Kaur by Avtar Singh for cremation. Statements of the witnesses were recorded. On return to the police station, case property was deposited with the Incharge of Malkhana. After post mortem examination, Constable Karnail Singh has produced three sealed parcels of the clothes worn by the deceased. Two parcels were sealed with the seal bearing impression `KS’ and one parcel was sealed with the seal bearing impression `SKG’. Sealed parcels were taken into police possession vide memo (Ex.PQ) attested by the witnesses. Sealed parcels were deposited with the Incharge of Malkhana. On 2.2.1995, Gurpreet Singh son of Tara Singh had produced respondent-accused Iqbal Singh son of Baldev Singh before SI Kirpal Singh. Iqbal Singh, respondent, was arrested in this case and was interrogated in the presence of Amarjit Singh. Iqbal Singh suffered a disclosure statement that he has kept concealed a gandasa in a room of his residential house meant for storing chaff and a 12 bore double barrel gun along with four live cartridges in his fields under the heap of paddy straw. He knew about the same and could get the same recovered. Statement of Iqbal Singh (Ex.P2) was recorded, who signed the same. In pursuance of his disclosure statement, the respondent got recovered gandasa (Ex.P14) from the specified place. Sketch of blade of the gandasa was prepared. 12 bore double barrel gun No.66577 (Ex.P15) and four live cartridges (Ex.P16 to Ex.P19) were also got recovered from the specified place. Gandasa was made into a sealed parcel sealed with the seal bearing impression `KS’. Sealed parcel was taken into police possession vide memo (Ex.PW) attested by the witnesses. Rough site plan of the place from where gandasa was got recovered was also prepared. Gun and live cartridges were also made into a Crl.Appeal No. 611-DBA of 2002 4 sealed parcel sealed with the seal bearing impression `KS’. Sealed parcel was taken into police possession vide memo (Ex.PX) attested by the witnesses. Rough site plan of the place of recovery of the gun and the cartridges was prepared. After the recovery of the gun and the live cartridges, separate FIR No. 8 dated 2.2.1995 under Sections 25/27/54/59 of the Arms Act was registered. Statements of the witnesses were recorded and on return to the police station, case property was deposited with the Incharge of Malkhana. After the receipt of sanction to launch prosecution under the Arms Act and after completion of investigation, separate challans were presented in Court. Offence under Section 302 of IPC was exclusively triable by the Court of Session and vide order dated 10.4.1995 passed by JMIC, Malerkotla, both the cases were committed to the Court of Session for trial. After hearing learned PP for the State, learned counsel for the respondent and from the perusal of the documents on the file, learned trial Court opined that a prima facie case is made out to frame charges under Section 302 IPC and under Sections 25/27/54/59 of the Arms Act. Accordingly, charges were framed against respondent-accused Iqbal Singh, to which he pleaded not guilty and claimed trial. Vide order dated 24.5.1995 passed by learned Additional Sessions Judge, Sangrur, challan under the Arms Act was consolidated with the main challan under Section 302 IPC and the trial of both the cases was ordered to be clubbed in terms of Section 220 of the Code of Criminal Procedure (Cr.P.C. for short) and the evidence was ordered to be recorded in FIR No.7 dated 25.1.1995 under Section 302 IPC and was to be read in both the cases. Crl.Appeal No. 611-DBA of 2002 5 In order to substantiate its case, the prosecution examined number of witnesses. PW1 Dr.Charanjit Singh on 26.1.1995 at about 1.00 pm had conducted post mortem on the dead body of Manjit Kaur and observed as under:- “Rigor mortis was present. Postmortem staining was present on back of the body. Eyes were closed. Mouth was partly opened. On posterior aspect of head, skin was bruised. Margins were inverted. Upper part of skull was shattered along with a brain matter. Blood and clots were present in the area. On back of skull, wound of 4.5 cms long was present. Skin was bruised with margins inverted. Both the left and right ventricals were empty. Stomach was healthy and empty. Urinary bladder was healthy and contained 150 mls of urine. Small intestine was healthy and contained fluid and gases. Large intestine was healthy and contained faeces and gases. Scalp injury was ante mortem in nature and was sufficient to cause death in the ordinary course of nature. Death was due to injury to vital organ brain resulting from firearm. Probable duration between injuries and death was immediate and between death and postmortem was within 24 hours.” On the same day at 2.30 pm, he had conducted post mortem on the dead body of Baldev Singh and observed as under:- “1. Entry wound bullet 1 x 1 cm in right eye. Margins were inverted, bruised, lower margin of right upper eye lid Crl.Appeal No. 611-DBA of 2002 6 was injured. 2. Exist wound bullet on right posterior lateral aspect of skull scalp, margins everted, measuring 2.5 x 3.0 cm. On dissection, both the above injuries connected with track of bullet travelling backwards injuring on way right eye ball, brain, blood and blood clots were present in the region. Both right and left ventricals were empty. Small intestine was healthy and contained fluid and gases. Large intestine was healthy and contained faeces and gases. Urinary bladder was healthy and empty. Injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. Death was due to injury to vital organ brain resulting from firearm.” Probable duration between injuries and death was immediate and between death and postmortem was within 24 hours.” PW2 Albel Singh is the complainant but he did not support the prosecution story and was declared hostile. PW3 Jagdev Singh is one of the eye witnesses but he too was declared hostile, when he failed to support the prosecution story. PW4 Dr. Sheetal Jain had conducted post mortem examination on the dead body of Harbans Kaur and found the following injuries on her person:- “1. There was an incised wound of 14 cms x 3 cms on the left side of the scalp, 16 cms away from the left ear pinna. Underlying bone and brain matter were cut. Crl.Appeal No. 611-DBA of 2002 7 2. Incised wound 13 cms x 4 cms on the right side of the scalp, 11 cms away from the right ear pinna and 8 cms above the right eye brow. 3. Lacerated wound 2 cms x 0.5 cm on the left side of left forearm 7 cms away from the left wrist joint underlying. Both the bones were fractured. 4. An incised wound 1 cm x 0.5 cm on the left lateral aspect of left forearm 5 cms away from injury No.3 and 2 cms away from the left wrist joint. Both the underlying bones were fractured.” Cause of death was due to the injuries to the vital organ brain and haemorrhage, which were sufficient to cause death in the ordinary course of nature. Probable duration between the injuries and death was immediate and between death and postmortem examination was within 24 hours.” PW5 Parampaul Singh is the second eye witness and stated that on 25.1.1995 at about 7.30 pm, he was near the house of Baldev Singh. Then Jagdev Singh was seen while closing the gate. There was electric light in the courtyard of Baldev Singh. Baldev Singh was going towards the gate of his house after alighting from Ambassador car. Iqbal Singh was also seen armed with 12 bore double barrel gun. He had fired a shot hitting Baldev Singh. On receipt of firearm injuries, Baldev Singh fell down on the ground. Then Iqbal Singh raised lalkara that Harbans Kaur and Manjit Kaur are not to be spared. Iqbal Singh then fired 2-3 shots. He along with Jagdev Singh to save their lives had fled away from the spot. After some time, number of people had gathered there. Then he and Jagdev Singh came Crl.Appeal No. 611-DBA of 2002 8 back to the house of Baldev Singh. Dead bodies of Baldev Singh, Harbans Kaur and Manjit Kaur were found lying in their house. He had narrated the above said incident to Albel Singh, complainant, who came at the spot after informing the police. Motive to murder Baldev Singh, Harbans Kaur and Manjit Kaur was that 15/20 years back, Gurdev Kaur was turned out of her matrimonial home by her husband Baldev Singh. Baldev Singh also used to ill treat his son Iqbal Singh. Baldev Singh was an addict and was selling his land and due to this reason, Iqbal Singh murdered Baldev Singh, Harbans Kaur and Manjit Kaur. PW6 HC Rajinder Singh tendered his affidavit (Ex.PL). PW7 Gurnam Singh had prepared scaled site plan (Ex.PN). PW8 Constable Karnail Singh got conducted post mortem examinations on the dead bodies of the deceased. PW9 Constable Gamdoor Singh tendered his affidavit (Ex.PR). PW10 ASI Nahar Singh on 25.1.1995 was with the party headed by SI Kirpal Singh and in his presence, statement of Albel Singh, complainant, was recorded by SI Kirpal Singh. Blood stained earth and empty cartridges were lifted from the spot by the Investigating Officer. PW11 ASI Gurcharan Singh stated that on 2.2.1995, he was with the police party headed by SI Kirpal Singh and in his presence, respondent Iqbal Singh was interrogated. In pursuance of the disclosure statement suffered by Iqbal Singh, he got recovered a gandasa and a gun with four live cartridges from the specified places. Gandasa and gun along with four live cartridges were made into separate sealed parcels. Sealed parcels were taken into police possession vide separate memos attested by him and Amarjit Singh. Crl.Appeal No. 611-DBA of 2002 9 PW12 Constable Bhagwant Singh tendered his affidavit (Ex.PZ). PW13 SI Kirpal Singh is the Investigating Officer. PW14 Raghbir Singh proved sanction (Ex.PKK). Reports of Serologist (Ex.PFF and Ex.PGG) and of Chemical Examiner (Ex.PHH and Ex.PII) were tendered into evidence. After close of the prosecution evidence, statement of the respondent was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the respondent was that Baldev Singh (deceased) was a cruel person and was not allowing him to enter the house. Baldev Singh was having illicit relations with Manjit Kaur. Parampaul Singh was introduced as a witness after calling him from Rampuraphul. He is the son of Harbans Kaur. Due to enmity, Parampaul Singh has deposed against him because one month earlier to the occurrence, he (Parampaul Singh) had a dispute with him and he had given beatings to Parampaul Singh, Opportunity was given to lead defence but no defence was led. After hearing learned PP for the State, learned counsel for the respondent, the respondent was acquitted of the charges levelled against him. We have heard learned counsel for the appellant-State, learned counsel for the respondent and have gone through the evidence on the file. Learned counsel for the appellant-State argued that the respondent, real son of Baldev Singh (deceased), has murdered three persons at about 7.30 pm. Occurrence was witnessed by Parampaul Singh Crl.Appeal No. 611-DBA of 2002 10 and Jagdev Singh. Jagdev Singh appeared as PW3 but did not support the prosecution story. He was won over by the respondent. PW5 Parampaul Singh is the son of Harbans Kaur (deceased) and brother of Manjit Kaur (deceased). Parampaul Singh being related to the deceased came to the house of Baldev Singh to know about the welfare of Harbans Kaur and Manjit Kaur. Presence of Parampaul Singh at the time of occurrence is natural. Gun of Baldev Singh (deceased) was used to commit the crime and the gun was recovered in pursuance of the disclosure statement suffered by the respondent. Empties recovered from the spot were sent to the Forensic Science Laboratory. After recovery of the gun on 2.2.1995, gun was also sent to the Forensic Science Laboratory and as per report of the laboratory, empty cartridges lifted from the spot were found fired from the gun which was recovered in pursuance of the disclosure statement suffered by the respondent. Parampaul Singh was not inimical towards the respondent. Therefore, there was no reason to name the respondent by leaving the real culprit. Evidence on the file was not rightly scrutinized by the learned trial Court. Learned counsel for the respondent argued that dead bodies were recovered from the house of Baldev Singh (deceased). Respondent is the real son of Baldev Singh but the respondent had no motive to commit the crime. As per story, motive to commit the crime was that Baldev Singh had a dispute with his wife Gurdev Kaur. 15/20 years back, she was turned out of the matrimonial house. Baldev Singh was having illicit relations with Manjit Kaur. Baldev Singh was an addict and was selling his land. He was treating the respondent like a servant. But no evidence on the file that the land was sold by Baldev Singh. 15/20 years back, Gurdev Kaur was turned Crl.Appeal No. 611-DBA of 2002 11 out of the house and if the respondent had a motive to commit the crime, then there was no idea to wait for about 15/20 years. Manjit Kaur (deceased) was married but after the death of her husband, she was residing with Baldev Singh. Manjit Kaur had litigation at Jalandhar but Parampaul Singh was not pursuing the litigation. Father of Baldev Singh was also murdered. No evidence on the file that Baldev Singh was treating the respondent like a servant. After post mortem examination, dead bodies were not collected by Parampaul Singh for cremation. When Baldev Singh (deceased) was having illicit relations with the sister of Parampaul Singh, then Parampaul Singh had a motive to commit the crime and name the respondent because one month earlier to the occurrence, respondent had a dispute with him (Parampaul Singh). Respondent gave beatings to him. Presence of Parampaul Singh at the time of occurrence is doubtful. He was practicing at Rampuraphul. Harbans Kaur and Manjit Kaur were staying with Baldev Singh. During working days when no ceremony was to be solemnized at Village Jabo Majra, then presence of Parampaul Singh at 7.30 pm in village Jabo Majra is doubtful. If Parampaul Singh had witnessed the occurrence, then he should have signed the recovery memos, inquest reports. But no document was signed by Parampaul Singh either in the house of Baldev Singh (deceased) or in the hospital when post mortem examination was conducted. After the post mortem examination, dead bodies were not collected by Parampaul Singh for cremation. Albel Singh is the complainant but he did not support the prosecution story. The complainant did not state that after lodging the report when he came back at the house of Baldev Singh, then Parampaul Singh was found present there and had informed about the occurrence. Ex.PG/1 is the supplementary statement of Crl.Appeal No. 611-DBA of 2002 12 Albel Singh. According to the supplementary statement, when Albel Singh came to the house of Baldev Singh after lodging the report, then Parampaul Singh and Jagdev Singh disclosed to him that Iqbal Singh is the murderer. Parampaul Singh as PW5 stated that he along with Jagdev Singh had witnessed the occurrence and this fact was disclosed to Albel Singh. Occurrence is dated 25.1.1995. In case, Parampaul Singh had witnessed the occurrence, then his statement was to be recorded on 25.1.1995 but statement of Parampaul Singh under Section 161 Cr.P.C. is dated 26.1.1995. ASI Nahar Singh was with the IO on 25.1.1995. In his presence, blood stained earth and empty cartridges were lifted from the spot but he did not state a word that after recording the statement of the complainant when the police party headed by SI Kirpal Singh came to the house of Baldev Singh, then Parampaul Singh was present there and his statement was recorded. SI Kirpal Singh as PW13 did not state a word that after recording the statement of the complainant when he along with other police officials had gone to the house of Baldev Singh, then Parampaul Singh was present there and his statement under Section 161 Cr.P.C. was recorded. If Parampaul Singh had witnessed the occurrence, then the IO should have specifically stated that when he along with other police officials had gone to the house of Baldev Singh, then statement of Parampaul Singh was recorded. Statement of Parampaul Singh under Section 161 Cr.P.C. was not signed by him. Second eye witness, namely, Jagdev Singh did not support the prosecution story. Recovery of gandasa and gun was on 2.2.1995. Recovery was in the presence of Amarjit Singh but he was not examined. If recovery of gandasa was on 2.2.1995, then statement of Parampaul Singh is not correct one when he stated that gandasa was shown to him after two days. Maid servant and Crl.Appeal No. 611-DBA of 2002 13 other servants were in the house at the time of occurrence but they were not examined. No one has appeared in Court to state that the crime was committed by the respondent. When appeal is against acquittal, then judgment is not to be set aside lightly on the allegation that there is a possibility of different view. Defence version of the respondent is that one month earlier to the occurrence, he had a dispute with Parampaul Singh. Respondent gave beatings to Parampaul Singh. Due to this reason, Parampaul Singh has deposed against the respondent. If the respondent failed to lead evidence in support of his defence version, then inculpatory part of the statement of the respondent under Section 313 Cr.P.C. cannot be made the sole basis of conviction. Appellate Court has full power to review, re-appreciate and reconsider the evidence but judgment of acquittal is to be set aside if the Court is of the opinion that the judgment is perverse and erroneous because the accused is presumed to be innocent until he is found guilty. Admittedly, Parampaul Singh is the son of Harbans Kaur (deceased) and brother of Manjit Kaur (deceased). Harbans Kaur is the sister of mother of Baldev Singh (deceased). Gurdev Kaur is the wife of Baldev Singh but 15/20 years back, Gurdev Kaur was turned out of the matrimonial house. Then she along with her second son started residing separately at her parental house. Evidence shows that father of Baldev Singh was also murdered. Manjit Kaur, sister of Parampaul Singh, was married at Jalandhar but after the death of her husband, she was residing with Baldev Singh at Village Jobo Majra. Manjit Kaur had a litigation at Jalandhar. Ex. PG is the statement of complainant Albel Singh. As per Crl.Appeal No. 611-DBA of 2002 14 statement (Ex.PG), at about 7.30 pm, Albel Singh was present in his house. He heard sound of gun shots from the house of Baldev Singh. After that, the complainant had gone to the house of Baldev Singh and found the dead body of Baldev Singh lying at the entrance gate of the house. After that, the complainant along with Joginder Singh, Chowkidar, had gone to lodge a report. At 9.05 pm, statement (Ex.PG) of the complainant was recorded by SI Kirpal Singh but on the next day, supplementary statement of Albel Singh (Ex.PG/1) was recorded by SI Kirpal Singh. As per supplementary statement (Ex.PG/1), after lodging the report with the police, when Albel Singh along with Joginder Singh, Chowkidar, and police officials came to the house of Baldev Singh (deceased), then Jagdev Singh son of Gurbachan Singh (PW3) and Parampaul Singh son of Gurdial Singh (PW5) told that murder was by Iqbal Singh with the gun of Baldev Singh (deceased) and after murder, he had fled away from the spot. Motive to murder was that 15/20 years back, Gurdev Kaur was turned out of the matrimonial house. Then Baldev Singh kept his aunt (mausi) Harbans Kaur and her daughter Manjit Kaur in his house. Baldev Singh developed illicit relations with Manjit Kaur. He was an addict. Land was sold by him. Due to this reason, Iqbal Singh has murdered Baldev Singh, Harbans Kaur and Manjit Kaur. According to the statement (Ex.PG) dated 25.1.1995 recorded at 9.05 pm, no eye witness. Albel Singh on hearing the sound of gun shots from the house of Baldev Singh had gone there and found the dead body of Baldev Singh lying in his house. But according to the supplementary statement (Ex.PG/1) dated 26.1.1995, PW3 Jagdev Singh and PW5 Parampaul Singh had witnessed the occurrence. As per Ex.PG, Parampaul was not present at the time of occurrence but when supplementary statement (Ex.PG/1) of Crl.Appeal No. 611-DBA of 2002 15 Albel Singh was recorded, then