Crl. Appeal No. 910-DB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 910-DB of 2004 Date of Decision : January 31, 2009 Balwant Singh .... Appellant Vs. The State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Parveen Bhadu, Advocate for the appellant. Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : By this common judgment, we are disposing of two Criminal Appeals bearing Crl. Appeal No. 910-DB of 2004 preferred by Balwant Singh and Crl. Appeal No. 601-DB of 2005 preferred by Jang Singh @ Jangi, as both these appeals have been preferred against the same judgment of conviction dated 22.03.2004 and order of sentence dated 23.03.2004 passed by learned Sessions Judge, Jalandhar, whereby both the aforesaid appellants stand convicted under Sections 302 and 201 of the Indian Penal Code (in short – IPC), read with Section 34 IPC and sentenced to undergo life imprisonment and to pay fine of Rs.1,000/- each and in default thereof, Crl. Appeal No. 910-DB of 2004 2 to undergo further rigorous imprisonment for one month under Section 302/34 IPC and also to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- each and in default thereof, to undergo further rigorous imprisonment for one month under Section 201/34. Vide aforesaid judgment, accused Mohinder Singh @ Titu was acquitted giving benefit of doubt. Prosecution case in brief is as under :- On 02.07.1997, at about 08:00 A.M., complainant Balwant Singh (PW-3), Sarpanch of Village Billi Chaharam was going on motorcycle to Village Malsian. At some distance from his village, he found dead body of an unknown person lying on the road. The complainant stopped and found that head of the dead body stood compressed and it appeared that some vehicle with double wheels had run over the head. There were also tyre marks in blood. Balwant Singh accordingly reported the matter to the police by making statement Ex.P-D stating that some unknown driver killed the unknown person by driving some vehicle rashly and negligently. ASI Pardeep Singh of Police Post Malsian, Police Station Shahkot, who recorded the statement, made his endorsement Ex.P-D/1 on it and sent it to Police Station, where on its basis, FIR Ex.P-S was registered under Section 304-A IPC. After conducting inquest report, the dead body was sent for autopsy. Dr. Varinder Jagat conducted post mortem examination on the dead body and found six injuries thereon. Injuries no.3 to 6 were, however, contusions and abrasions only. Injuries no.1 and 2, which proved fatal, are reproduced as under :- “1. Whole head, face, and neck was compressed. Brain matter along with soft tissue was coming out of the cranial cavity. Clotted blood was present over head and face. On dissection : Meninges and brain matter were Crl. Appeal No. 910-DB of 2004 3 lacerated. Underlying bone was fractured into multiple pieces. Clotted blood was present in the cranial cavity. 2. Multiple red contusions in zig zag fashion resembling tyre mark present over front of chest. Chest was also pressed. On dissection : Underlying soft tissue and muscles were lacerated. Ribs were fractured. There is cavity was full of blood, with both lungs pressed and lacerated.” Cause of death was opined to be neuroganic and harrmorgagic shock due to injuries no.1 and 2 individually and collectively with other injuries, which were ante-mortem and sufficient to cause death in ordinary course of nature. It is further the prosecution case that on 21.07.1997, police party headed by SI Nirmal Singh, Station House Officer, Police Station Sadar, Jalandhar and comprising ASI Som Nath and other police officials, received secret information that both the appellants and Uttam Singh, Madan Lal @ Madi, Amarjit @ Sharma and accused Mohinder Singh @ Titu (since acquitted) were planning to commit dacoity. They were already having truck bearing No. CIF 984, on which plate of wrong No. DL-1G- 1315 had been affixed and they were present at Chowk Kot Kalan, Old Phagwara Road, Jalandhar. On the basis of this information, FIR No.216 dated 21.07.1997 was registered in Police Station Sadar, Jalandhar under Sections 399, 402, 379, 411, 467 and 468 IPC and Section 25 of the Arms Act, 1959. The aforesaid police party reached the aforesaid place and found the aforesaid truck there. The police apprehended both the appellants and Uttam Singh and Amarjit @ Sharma from the truck, whereas Mohinder Singh @ Titu and Madan Lal @ Madi managed to escape. The aforesaid truck with false number plate was seized vide recovery memo Ex.P-M. Crl. Appeal No. 910-DB of 2004 4 Balwant Singh and Jang Singh-appellants made separate confessional-cum- disclosure statements Ex.P-N and Ex.P-O respectively stating inter alia that on 15.06.1997, they along with Mohinder Singh @ Titu, Amarjit and Uttam Singh hatched conspiracy to loot some truck with costly goods. Accordingly, they went in truck of Bhola, brother-in-law of Mohinder Singh, to Surat. While returning from there on 01.07.1997, they developed intimacy with driver and cleaner of truck bearing No.CIF 984 while taking tea at a dhaba at Bathinda bye-pass. Jung Singh boarded the said truck. They then stopped at another dhaba at Moga bye-pass and both the appellants mixed some intoxicating tablets in the tea of driver Kaku and cleaner Amjad Khan of truck No.CIF 984. After taking tea, they moved from Moga to Dharamkot. Jung Singh started driving the truck. A little ahead of Dharamkot near Village Kamalke, the driver and the cleaner became unconscious. Both the appellants along with Madan Lal and Mohinder Singh strangulated the driver Kaku and killed him and put the dead body on the road and the body was run over underneath the truck. Thereafter, ahead of Village Malsian, both the appellants and their companions similarly killed the cleaner Amjad Khan and ran over his body also. On 02.07.1997, Jang Singh and Mohinder Singh hired a house in Village Lalewali and then both the appellants and their companions unloaded the fans from the aforesaid truck No. CIF 984 and kept the same in the rented house. In pursuance of their disclosure statements, they led the police party to the said rented house from where 1434 sets of complete fans and 21 sets of incomplete fans contained in 734 cartons were got recovered and the same were seized vide memo Ex.P-R. The said cartons and fans were identified by Madan Lal of Crompton Greaves Ltd. to be their stolen goods. The said fans had been booked from Bombay for their office at Jalandhar by Crompton Company through UTC Carrier. On 27.07.1997, Manohar Lal Lambardar of Village Jandu Crl. Appeal No. 910-DB of 2004 5 Singha, Police Station Adampur made statement before SI Sucha Singh, SHO of Police Station Shahkot that on 16.07.1997, at about 10:00 A.M., both the appellants, who were previously known to the witness, came to him and separately made confession about the robbery of the aforesaid truck with loaded fans and about killing of its driver Kaku and cleaner Amjad Khan and storing of the stolen fans in the rented house in Village Lalewali as noticed above. On the basis of this statement, report Ex.P-X was recorded in daily diary and offences under Sections 302 and 201 IPC read with Section 34 IPC were substituted in place of offence under Section 304-A IPC. On 28.07.1997, Haq Niwas – uncle of cleaner Amjad Khan (since deceased) identified the above mentioned body of unknown person from its photographs and clothes to be that of Amjad Khan vide memo Ex.P-L. On 05.08.1997, SI Sucha Singh arrested both the appellants in the instant case, who were already in custody in aforesaid FIR No.216 dated 21.07.1997. On 07.08.1997, both the appellants made separate statements Ex.P-F and Ex.P-G that on the night between 01/02.07.1997, they along with others, had killed cleaner of truck No.CIF 984 (loaded with fans) a little ahead of Village Malsian in the above mentioned manner and they could point out the place of said occurrence. In pursuance of said statements, both the appellants pointed out the aforesaid place of occurrence vide memo Ex.P-F/1. On completion of investigation, both the appellants and Mohinder Singh @ Titu were sent for trial. Charge under Sections 302 and 201 read with Section 34 IPC was framed against all the three accused. They pleaded not guilty and claimed trial. To prove its case, the prosecution examined 17 witnesses. Dr. Crl. Appeal No. 910-DB of 2004 6 Varinder Jagat (PW-1) stated that he conducted post-mortem examination on the dead body of unknown person (subsequently identified as Amjad Khan). HC Gurmej Singh (PW-2), Constable Satwant Singh (PW-4), Constable Tara Singh (PW-8) and Constable Raj Kumar (PW-9) tendered their respective affidavits in evidence being formal witnesses. Complainant Balwant Singh (PW-3) broadly stated according to the prosecution version. He lodged FIR on finding dead body of unknown person appearing to have been killed in accident. HC Hans Raj (PW-5) stated that both the appellants, after making statements Ex.P-F and Ex.P-G, demarcated the place of occurrence vide memo Ex.P-F/1. Dalip Singh – Draftsman (PW-6) stated that he prepared scaled site plan of the place of occurrence. ASI Som Nath (PW-7) and Inspector Nirmal Singh (PW-16) stated about recovery of truck No. CIF 984 from the possession of the appellants and other persons bearing wrong number plate of No. DL-1G-1315. They also stated about recovery of fans at the instance of the appellants pursuant to the disclosure statements made by them. Haq Niwas (PW-10) stated about identification of the dead body of his nephew Amjad Khan from the photographs and the clothes vide memo Ex.P-L. He also stated that Amjad Khan was employed as cleaner of the truck with Kaku driver of truck No. CIF 982. He has stated that the cleaner and the driver had gone to Jalandhar in the truck loaded with fans. Yogesh Kumar – Additional Ahlmad (PW-11) simply produced file of FIR No. 216 dated 21.07.1997 of Police Station Sadar Jalandhar. ASI Pardeep Singh (PW-12) stated about investigation of the case by him. He also got the dead body photographed. Jaspal Singh – Photographer (PW-13) stated that he had photographed the dead body vide photographs Exs.P-13 and P-14. Manohar Lal (PW-14) stated about extra-judicial confession made before him by both the appellants separately. SI Sucha Singh (PW-15) stated about investigation of the case. He also arrested accused Mohinder Singh @ Titu on 03.10.1997. Daljit Singh – Translator Crl. Appeal No. 910-DB of 2004 7 (PW-17) stated from file of FIR No.216 of 1997 of Police Station Sadar, Jalandhar that one Mohan Lal had appeared as PW-7 in the said case and produced and proved the case property i.e. fans in the Court. Copy of his statement made in that case has been produced as Ex.PW-17/A. On completion of prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure (in short – Cr.P.C.). All the three accused in their statements denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. Accused Mohinder Singh @ Titu (since acquitted) stated that there was a dispute between him and one Swarn Singh, real brother of Buta Singh, Ex-Home Minister of India regarding a plot of Jalandhar, regarding which case was pending in the Court, and therefore, he has been falsely implicated in this case at the instance of said Swarn Singh. Both the appellants alleged that they had been helping Mohinder Singh in the aforesaid case and for this reason, they have been falsely implicated at the instance of Swarn Singh. In their defence, the accused examined six witnesses. Yogesh Sharma – Criminal Ahlmad (DW-1) brought file of FIR No.33 dated 18.03.1997 of Police Station Division No.4, Jalandhar, wherein Mohinder Singh @ Titu (since acquitted in the instant case) was the main accused and was appearing in the Court in the said case. Swarn Singh was complainant of the said case. Jagdish Lal – Translator (DW-2) brought file of FIR No.87 dated 19.08.1998 of Police Station Subhanpur and proved statement of Manohar Lal, Lambardar, copy Ex.DW-1/A made in the said case to the police under Section 161 Cr.P.C. Narinder Singh – Ahlmad (DW-3) similarly proved statement Ex.DW-2/A allegedly made by Manohar Lal, Lambardar to the police under Section 161 Cr.P.C. in FIR No.10 of 02.02.2001 of Police Station Kartarpur. Harbans Singh (DW-4) of Village Lalewali stated that he did not know the three accused present in the Court Crl. Appeal No. 910-DB of 2004 8 and that he had never rented his house to them or to anybody else. He also stated that the police never recovered any stolen articles from his house. Constable Amrik Singh (DW-5) and Dinesh Sharma – Clerk (DW-6) stated that Manohar Lal, Lambardar was cited as witness in FIR No.93 dated 30.10.1994 of Police Station Adampur. His statement under Section 161 Cr.P.C. made to the police in that case was proved as Ex.DW-6/A. Learned Sessions Judge, Jalandhar, vide impugned judgment dated 22.03.2004 and impugned order dated 23.03.2004 convicted and sentenced the appellants Balwant Singh and Jang Singh @ Jangi as already noticed and acquitted Mohinder Singh @ Titu. Feeling aggrieved, the convicts have preferred the instant appeals. We have heard learned counsel for the parties and perused the case file with their assistance. The learned trial court, finding the prosecution evidence against the appellants to be reliable, convicted them. The prosecution case is based on circumstantial evidence and extra-judicial confession. Retracted extra-judicial confession, by itself, is considered to be weak type of evidence, but when it is corroborated by other evidence, such confession can also be relied on for conviction. In case of circumstantial evidence, following five tests are required to be satisfied :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established – Circumstances concerned “must” or “should” and not “may be” established – There is legal distinction between “may be proved” and must be or should be proved. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that Crl. Appeal No. 910-DB of 2004 9 is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the instant case, initially FIR was registered on 02.07.1997 as a case of hit and run accident resulting in death of an unknown person. There were tyre marks of the vehicle making the complainant to believe that the deceased had been accidentally run over by some vehicle. Unconnected with the instant case, police of a different police station i.e. Police Station Sadar Jalandhar apprehended the appellants and two others with the stolen truck, which was having false number plate. Recovery of the said truck from the possession of the appellants and two others on 21.07.1997 i.e. 19 days after the registration of the instant case is a very material and significant circumstance. The said recovery is proved by the statements of ASI Som Nath (PW-7) and Inspector Nirmal Singh (PW-16). Their statements could not be shattered in their cross-examination. They had no motive to implicate the appellants falsely. That apart, the stolen truck would not have been planted by the police on the appellants. The fact, that false number plate had been put on the truck by the appellants, reveals their guilty conscience. The appellants, after making disclosure statements, also got Crl. Appeal No. 910-DB of 2004 10 recovered 734 cartons containing 1455 fans, which were loaded in the stolen truck. The appellants had unloaded the same in a rented house and got the same recovered from there on 21.07.1997. The said recovery of stolen property also proved by SI Som Nath and Inspector Nirmal Singh witnesses further corroborates the prosecution case. Large number of stolen fans valuing lakhs of rupees also could not have been planted on the appellants just to implicate them falsely. Manohar Lal, Lambardar (PW-14) has also stated that both the appellants had made extra-judicial confession before him regarding the murder of the cleaner of the truck. His statement could not be shaken in any manner in lengthy cross-examination. He is an independent witness and had no axe to grind. His statement is, therefore, credible and trust-worthy. The aforesaid evidence, considered cumulatively, is sufficient to prove the charge against the appellants beyond reasonable doubt. Learned counsel for the appellants assailed the prosecution evidence on various grounds. It was contended that Harbans Singh (DW-4) has stated that he had never rented his house to the accused or anybody else and the police never recovered any stolen articles from his house. However, his statement is not sufficient to rebut the statements of ASI Som Nath (PW- 7) and Inspector Nirmal Singh (PW-16). Moreover, as already noticed, stolen fans worth several lakhs of rupees could not have been planted on the appellants by the police just to implicate the appellants falsely without any rhyme or reason. Learned counsel for the appellants contended that no independent witness from the Village, from where recovery was effected, was joined. However, it is a matter of common knowledge that no independent witness likes to be associated in such cases. Statements of official witnesses ASI Som Nath (PW-7) and Inspector Nirmal Singh (PW- 16) cannot be discarded merely because of their official garb because they were not hostile to the appellants in any manner. Statements of these two Crl. Appeal No. 910-DB of 2004 11 official witnesses are, therefore, as much reliable as those of non-official witnesses. Learned counsel for the appellants emphatically contended that the appellants have been falsely implicated because they had been assisting their co-accused Mohinder Singh @ Titu, who had litigation with Swarn Singh, brother of Shri Buta Singh, Ex-Home Minister of India. The contention cannot be accepted. There is of course evidence that Mohinder Singh @ Titu was having litigation with one Swarn Singh. However, there is not even iota of evidence on record to substantiate the contention that said Swarn Singh is brother of Shri Buta Singh, Ex-Home Minister of India. The appellants, in their statements under Section 313 Cr.P.C., have of course stated about the said relationship, but the said statements cannot be treated as evidence as the appellants did not step into the witness-box as their witnesses in defence to state about the said relationship and the prosecution had no opportunity to test the veracity of their allegation on the touchstone of cross-examination. The appellants have also not led any other evidence whatsoever to prove the alleged relationship between Swarn Singh and Sh. Buta Singh. Consequently, it cannot be said that appellants have been falsely implicated at the instance of Swarn Singh, with whom the accused Mohinder Singh @ Titu had some litigation. Learned counsel for the appellants next argued that the deceased cleaner Amjad Khan was a Muslim, but the dead body recovered from the spot was of a Hindu. It was pointed out that Dr. Varinder Jagat (PW-1), who conducted post-mortem examination on the dead body, did not state that the deceased had circumcision. However, merely on this ground, it cannot be said that the deceased was not a Muslim. Since identity of the deceased was not known at the time of post-mortem examination, the doctor might not have thought it proper to notice if the deceased had circumcision or not, because this fact was not essential to know the cause of Crl. Appeal No. 910-DB of 2004 12 death, for which the post-mortem examination was conducted. Learned counsel for the appellants also contended that in request Ex.D-1 made by ASI Pardeep Singh to Executive Officer of Municipality, Nakodar, for cremation of the dead body, the deceased was mentioned to be Hindu. However, ASI Pardeep Singh, at that time, had no idea that the deceased could be a Muslim. This fact also would not come in the way of the prosecution case. Learned counsel for the appellants also pointed out that Dr. Varinder Jagat (PW-1) stated at the end of his cross-examination that since the body was completely smashed, it was not identifiable. It was accordingly argued that the deceased could not have been identified and it cannot be said that the deceased was Amjad Khan – cleaner of the truck. The argument, although apparently attractive, is in fact devoid of substance. We have seen the photographs of the dead body in the record of the trial court. The said photographs reveal that face of the deceased was mutilated to some extent, but the entire remaining body was intact and the deceased could be easily identified from the photographs including the clothes. Haq Niwas (PW-10), who is uncle of the deceased, has also categorically stated that he had identified the deceased to be his nephew Amjad Khan from the photographs and the clothes. His testimony could not be impeached in cross-examination. He had no motive to depose falsely against the appellants. Learned counsel for the appellants contended that Haq Niwas (PW-10) had stated that the truck was bearing No. CIF 982, whereas in fact the number of the truck was CIF 984. However, Haq Niwas stated that he is completely illiterate. Obviously, he committed some minor error in stating the registration number of the truck, which does not adversely effect his testimony. Learned counsel for the appellants also submitted that according to Haq Niwas (PW-10), he identified the deceased from the photographs in the Police Post, whereas SI Sucha Singh (PW-15) stated that Crl. Appeal No. 910-DB of 2004 13 the identification was done at bus stop of Village Malsian. However, such minor discrepancy in a murder case cannot be given undue importance. Haq Niwas was examined about two years after the identification, whereas SI Sucha Singh (PW-15) was examined about 4 ½ years after the identification. Due to lapse of such long period also, the aforesaid minor contradiction pales into insignificance. Learned counsel for the appellants next contended that according to extra-judicial confession, as well as according to confessional- cum-disclosure statements made to the police by the appellants, the deceased was killed by strangulation and then the dead body was run over underneath the truck, but Dr. Varinder Jagat (PW-1) stated that there was no ligature mark on the neck of the deceased nor it was a case of asphyxia. However, this circumstance cannot be said to be fatal to the prosecution because strangulation or throttling by the appellants might not have resulted in the death of the deceased, who was already unconscious due to intoxicant served to him in the tea by the appellants. Mere absence of ligature mark or asphyxia as cause of death would not make the prosecution case doubtful in any manner. Learned counsel for the appellants also assailed the testimony of Manohar Lal Lambardar (PW-14) by submitting that extra-judicial confession before him was allegedly made on 16.07.1997, but he informed the police on 27.07.1997 only i.e. after delay of 11 days, although there is also a Police Post in the Village of Manohar Lal. However, Manohar Lal explained in report Ex.P-X itself, made to the police on 27.07.1997 that the appellants, after making extra-judicial confession before him, promised to come to him on the next day, but they did not turn up and he himself had also gone to Delhi in connection with some domestic work. So, merely on ground of this delay in reporting the extra-judicial confession by Manohar Lal (PW-14) to the police, the testimony of Manohar Lal is not rendered Crl. Appeal No.