IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 980-DB of 2007 DATE OF DECISION : 10.02.2009 Daljit Singh .... APPELLANT Versus State of Punjab ..... RESPONDENT Crl. A. No. 981-DB of 2007 DATE OF DECISION : 10.02.2009 Lakhwinder Singh & another .... APPELLANTS Versus State of Punjab ..... RESPONDENT Crl. A. No. 984-DB of 2007 DATE OF DECISION : 10.02.2009 Tarsem Singh .... APPELLANT Versus State of Punjab ..... RESPONDENT Crl. A. No. 1081-DB of 2007 DATE OF DECISION : 10.02.2009 Kabal Singh .... APPELLANT Versus State of Punjab ..... RESPONDENT Crl. A. No. 980-DB of 2007 -2- CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. D.S. Pheruman, Advocate, for the appellant (in Crl. A. No. 980-DB of 2007) Mr. Puneet Bali, Advocate, with Mr. G.K. Khanna, Advocate, for the appellant (in Crl. A. No. 981-DB of 2007) Mr. Jasdeep Singh Gill, Advocate, for the appellant (in Crl. A. No. 984-DB of 2007) Mr. Rajdeep Singh Cheema, Advocate, for the appellant (in Crl. A. No. 1081 of 2007) Mr. Rajesh Bhardwaj, Addl. A.G., Punjab, for the respondent-State. * * * SATISH KUMAR MITTAL , J. In this case, vide judgment dated 5.11.2007, passed by Additional Sessions Judge, Amritsar in Sessions Case No. 33 of 5.5.2006/07 arising from FIR No. 181 dated 24.11.2005 registered at Police Station Beas, Amritsar, five police officials have been convicted for the commission of offence under Sections 342, 364 and 302 IPC, for wrongful confinement, abduction and murder of one Sukhwinder Singh alias Shinda, a boy of about 21 years of age and vide order dated 7.11.2007, each of them has been sentenced to undergo imprisonment for a period of one year under Section 342 IPC; to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/- under Section 364 IPC; and imprisonment for life and to pay a fine of Rs. 2,000/- under Section 302 IPC. All the sentences have been Crl. A. No. 980-DB of 2007 -3- ordered to run concurrently. 2. Against the aforesaid judgment of conviction and order of sentence, Criminal Appeals No. 980-DB, 984-DB and 1081-DB of 2007 have been filed by convicts Daljit Singh, Tarsem Singh and Kabal Singh, respectively, and Criminal Appeal No. 981-DB of 2007 has been filed by convicts Lakhwinder Singh and Kulwant Singh. 3. In brief, the aforesaid FIR was registered at Police Station Beas on the basis of statement (Ex.PA) made by Mohinder Singh (grand-father of deceased Sukhwinder Singh @ Shinda), which was recorded by Gurbhinder Singh, SHO Police Station Beas, on 23.11.2005 at 11.30 P.M. In his statement, he stated that he was a resident of Rayya and running a cloth shop. His grand-son Sukhwinder Singh @ Shinda was also running a stall of readymade garments near his shop. He stated that previously on two occasions (first time on 7.10.2005 and second time on 4.11.2005), Rayya Police had taken away his grand-son Sukhwinder Singh to Police Post Rayya, and after giving beating and keeping him in Police Station for night, he was left in the morning. At that time, no FIR was registered against his grand-son, but one watch and Rs. 900/- were snatched from his grand-son by Kewal Singh PCR. He further stated that today i.e. on 23.11.2005, at about 5.00 P.M., when his grand-son Sukhwinder Singh @ Shinda was selling garments at his stall, Daljit Singh PCR, Tarsem Singh PCR and Kabal Singh HC and another Constable came at his stall and they pulled, pushed and gave beating to Sukhwinder Singh and took him away from his Crl. A. No. 980-DB of 2007 -4- stall in police van Sumo to the Police Station. Thereafter, he and his son Baldev Singh went to Police Post Rayya, where Police Post In-charge met them. When they complained to him that all the above said four police officials had given severe beatings to Sukhwinder Singh alias Shinda, then Police Post In-charge and Constable Daljit Singh said that they (complainants) have come there to put pressure on them. The complainant Mohinder Singh and his son Baldev Singh said that if Sukhwinder Singh is at fault, then he be challaned. It was further stated that the police asked them to come in the morning. He further stated that after an hour, Amarjit Kaur mother of Sukhwinder Singh @ Shinda went to Police Post Rayya, but she was not allowed to enter the Police Post and then she returned home. It was further stated that Amarjit Kaur then went to Gagandeep Singh Juj, who gave her a letter and while again going to Police Post, she came to know that her son Sukhwinder Singh had expired due to the torture given to him in Police Post Rayya. His dead body was lying at Bath Hospital as unknown dead body, whereas his death was caused due to inhuman torture given to him in Police Post Rayya. On the basis of the said statement, an FIR (Ex.PA/2) was registered under Section 302 read with Section 34 IPC. The control room was informed. The special report was sent to the Magistrate, and the police officials along with complainant proceeded towards Bath Hospital. 4. Further, as per the prosecution version, on 24.11.2005 at 10.20 AM, the dead body of the deceased, which was found lying in the Bath Crl. A. No. 980-DB of 2007 -5- Hospital, was taken to Amritsar for conducting the post-mortem. The inquest report (Ex.PB) was prepared, in which it was mentioned that in Bath Hospital, dead body was lying and the cause of death recorded was due to torture at the hands of the police. As per the statement of Dr. Ashok Chanana (PW.5), Assistant Professor, Department of Forensic Medicine, Govt. Medical College, Amritsar, post-mortem of the deceased was conducted by a Board of Doctors on 24.11.2005 at 10.45 A.M. On examination of the dead body, the rigor mortis was found present in the whole body of the deceased. Post mortem staining was present on the back, except in areas of contact flattering and it was fixed bluish, discolouration of nales was present. Eyes were open and right eye was congested. Mouth was slightly open with whitish froth in between the lips. Dried whitish discharge was coming out from right nostril which was present on right cheek. But on moving the head blood strained froth came out from right nostrils. Both nostrils contained froth. The following injuries were found on the dead body : 1. Multiple partly healed (some completely healed), scar marks were present on the right leg, right knee, right medial malleolous and left knee. These were circular in shape with margins hyper pigmented and centre was whitish in appearance (more than 15). 2. A dark reddish abrasion 0.5 x 0.4 cm was present on the front and centre of chest. 9 cm below supra sternal notch. 3. A rounded abrasion 0.2 x 0.2 cm dark reddish in colour was present on the outer aspect of right upper arm 3 cm below the point of shoulder. Crl. A. No. 980-DB of 2007 -6- 4. A dark coloured bruise 10 x 3 cm was present on the outer aspect of right hip in its centre. 5. An oblique dark colour bruise 4 x 3 cm was present on the back of right abdomen in its centre. 6. A dark colour irregular confluent bruise 6 x 4 cm was present on the inner aspect of right upper arm. 5 cm below posterior axillary fold. 7. A dark coloured bruise 0.4 x 0.3 cm was present on the left lateral aspect of neck. 12 cm below the left ear lobule. 8. A dark coloured bruise 1.3 x 0.4 cm was present on the left lateral aspect of the neck. 4 cm posterior to injury no.7. In the opinion of the Doctors, the cause of death was strangulation leading to asphyxia due to constriction of neck as a result of injury No.8, which was sufficient to cause death in the ordinary course of nature. The probable time of the death was about 12 to 24 hours. Except injury No.1, all other injuries were ante-mortem in nature and the duration of those injuries was within 12 hours. 5. During investigation, the matter was also enquired into by Mr. S.K. Agnihotri SP (D) (DW.3). He gave his report that the alleged offence was not an offence under Section 302 IPC, rather in his opinion, the alleged offence falls under Section 306 IPC. He further came to the conclusion that Lakhwinder Singh and Kulwant Singh were not involved in the alleged offence. After the investigation, the police filed challan against four accused, namely Kabal Singh, Daljit Singh, Tarsem Singh and Lakhwinder Crl. A. No. 980-DB of 2007 -7- Singh under Section 306 IPC. However, subsequently, the police filed an application for discharge of Lakhwinder Singh ASI, In-charge Police Post Rayya and on that application, he was discharged. Thereafter, charges were framed against Kabal Singh, Daljit Singh and Tarsem Singh for the offences punishable under Sections 342, 364, 302 IPC and in the alternative under Section 306 IPC, to which they pleaded not guilty and claimed trial. 6. After recording of examination-in-chief of PW.1 Mohinder Singh and PW.2 Baldev Singh, father and uncle of the deceased, Lakhwinder Singh and Kulwant Singh were also summoned under Section 319 Cr.P.C., to face the trial. Thereafter, charges for the aforesaid offences were also framed against them, to which the accused pleaded not guilty and claimed trial. 7. In order to prove its case, the prosecution examined 9 witnesses. PW.1 Mohinder Singh, in his statement before the Court, stated that earlier on two occasions i.e. on 7.10.1995 and 4.11.1995, his grand-son Sukhwinder Singh alias Shinda was taken by the police officials to the Police Post and after giving him beating and keeping him in the Police Post for night, he was released. Thereafter, on 23.11.1995, at about 5.00 P.M., his grand-son was taken to Police Post Rayya, after giving him beating there, by accused Tarsem Singh, Daljit Singh and Kabal Singh along with one more police official. Lateron, this witness (PW.1) came to know that his name was Kulwant Singh. He further stated that when he along with his son Baldev Singh went to Police Post Rayya and requested Lakhwinder Singh, Crl. A. No. 980-DB of 2007 -8- the in-charge of the Police Post, that his grand-son should be released, as he was not at fault, Lakhwinder Singh replied that they were brow-beating Sukhwinder Singh. It was further stated by this witness (PW.1) that when they went inside the Police Post, they saw that arms of his grand-son were tied and he was made to stand alongside the wall of the room. On assurance that his grand-son will be released next morning, he and Baldev Singh returned to their home. This witness further stated that after some time, Amarjit Kaur, mother of Sukhwinder Singh, also went to Police Post Rayya, but she was not allowed to go inside the Police Post, as the main gate was closed. Thereafter, Amarjit Kaur approached a local politician, who had handed over a letter to her. With that letter, Amarjit Kaur again went to Police Post Rayya, but in the way she came to know that her son had expired in the Police Post and his dead body was lying in Bath Hospital, Rayya. This witness further stated that when they went to the Hospital, where the dead body of Sukhwinder Singh @ Shinda was lying, and the police people were standing there. SHO, PS Beas and S.P. Agnihotri had also reached there. Thereafter, SHO, PS Beas recorded the statement of this witness on the direction of S.P. Agnihotri and case was registered for committing the murder of his grand-son. The similar statement was made by PW.2 Baldev Singh. 8. PW.3 Amarjit Kaur, in her statement before the Court, stated that her son Sukhjinder Singh was running a Farri of readymade garments at Rayya. On 23.11.2005, her father-in-law Mohinder Singh (PW.1) informed Crl. A. No. 980-DB of 2007 -9- her that her son was taken by HC Kabal Singh, Constable Tarsem Singh and Constable Daljit Singh to Police Post Rayya. Then she went to the Police Post to enquire about her son. Kulwant Singh was on sanitary duty at Police Post Rayya. She heard the shrieks of her son Sukhjinder Singh from inside the Police Post. She requested Kulwant Singh Sanitary to let her go inside the Police Post, but he did not allow her. Then she came back and met one Gagandeep Singh alias Juj and narrated the entire incident to him. Thereafter, she again went to Police Post Rayya, but again she was not allowed to go inside and when she was coming back, she came to know that her son was killed by the accused and his dead body was lying in Bath Hospital. She stated that Lakhwinder Singh, in-charge of Police Post, Rayya was also present inside the Police Post, when the police officials were giving beatings to her son. The prosecution has also examined PW.4 Rishi Pal Draftsman, who proved the site plan Ex.PC. PW.5 Dr. Ashok Chanana was member of the Board of Doctors, who conducted the post mortem of the dead body of the deceased. PW.6 HC Baldev Raj got conducted the post mortem of the dead body of the deceased. PW.7 HC Harpal Singh proved the special report. PW.8 SI Gurbhinder Singh was the Investigating Officer of the case and PW.9 HC Gulshanbir Singh proved the posting of various police officials at Police Post Rayya. PW.4, PW.6, PW.7 and PW.9 are the formal witnesses. 9. PW.8 SI Gurbhinder Singh, the Investigating Officer, in his statement, stated that on 23.11.2005, he was posted as SHO, P.S. Beas. He Crl. A. No. 980-DB of 2007 -10- recorded the statement (Ex.PA) of Mohinder Singh complainant at Chowk Pheruman (Rayya) regarding the murder of his grand-son Sukhjinder Singh. On the basis of the said statement, formal FIR Ex.PA/2 was recorded by SI Swaran Singh. After recording the statement, he along with police officials and Mohinder Singh complainant went to Bath Hospital, Rayya, where the dead body of Sukhjinder Singh @ Shinda was lying. The inquest report (Ex.PB) was prepared and the dead body was sent to Amritsar for post mortem examination. He further stated that he arrested accused Lakhwinder Singh, Tarsem Singh, Daljit Singh and Kabal Singh and challan was filed against them. In cross-examination, he stated that the challan was filed under Section 306 IPC on the recommendation of SP, as it was found during investigation that the deceased had committed suicide. He further admitted that during investigation, an enquiry was conducted by Mr. S.K. Agnihotri, SP (D) and on the basis of his report, an application for discharge of accused Lakhwinder Singh was moved and he was discharged by the court. 10. After the closing of evidence by the prosecution, statements of all the accused under Section 313 Cr.P.C., were recorded. In his statement, Kabal Singh denied the evidence appearing against him and pleaded that he was falsely implicated and made a scope goat to help the actual culprits. The witnesses are deposing against him because of suspicion and tutoring. He was totally innocent and had no hand in the mysterious death of the deceased. Daljit Singh in his statement, while denying all the allegations put against him, stated that he was only a PCR and remained on patrol duty and Crl. A. No. 980-DB of 2007 -11- had no role in the Police Post affairs. He further stated that he came to know later on that on the basis of some complaint, deceased was brought to the Police Post and after his death, the complainant lodged case apparently on suspicion. Tarsem Singh made similar statement. Lakhwinder Singh denied the entire evidence appearing against him and pleaded that on 23.11.2005, he was on VIP duty as per entries in the Daily Diary already placed on the judicial file by the prosecution. He returned from field at about 10.00 PM. During this period, according to wireless log book, he received wireless message from Kabal Singh at 6.32 PM by call signal Charlie 12, which was his call signal. He had no knowledge till his return to Police Post Rayya about the occurrence. On that day, the case was registered against Kabal Singh and three others. He further stated that prior to this occurrence, Sukhwinder Singh alias Shinda was complained against by one Surinder Singh son of Karnail Singh and that application was marked by him to Kabal Singh for action. Sukhwinder Singh alias Shinda was involved in small offences of thefts, and when he used to be detained, he was got released by the politicians with assurance that he will reform himself. He further stated that for that reason, the politicians got him involved in the case by holding Dharna and blockage of traffic. However, he was arrested and the enquiry was held by Mr. S.K. Agnihotri, SP (D), who after examining the record of the Police Station and wireless message, got him discharged. Kulwant Singh in his statement stated that he remained on duty with Lakhwinder Singh ASI as per Daily Diary. He has no connection with Crl. A. No. 980-DB of 2007 -12- the alleged offence. 11. In defence, the appellants examined six witnesses. DW.1 HC Mohan Singh was examined to prove the Daily Diary dated 23.11.2005 of Police Post Rayya. He stated that Ex.DD and Ex.DE, which are copies of the reports entered at serial No. 16 and 19 of the Daily Diary, are correct as per record. However, this witness has further stated that this Daily Diary commenced from 22.11.2005. This witness has also proved that as per the record of Police Post Rayya, an application was received on 20.11.2005 from Surinder Singh making complaint against the deceased for stealing a press from his shop. In cross-examination, this witness admitted that entry No. 16 dated 23.11.2005 is only for patrolling and no specific purpose has been mentioned. He also admitted that on 23.11.2005, ASI Lakhwinder Singh was in-charge of Police Post Rayya. He further admitted that in- charge Police Post Rayya is whole sole in-charge of the Roznamcha, which was presented by him in the court. He also stated that he cannot tell as to in whose hand-writing entries No. 16 and 19 were made. He admitted that there is no reference regarding the signatures/initials of ASI Lakhwinder Singh on the true copies of Ex.DD and Ex.DE, prepared by the then MHC Prabhjit Singh. He, however, denied the suggestion that signatures/initials of ASI Lakhwinder Singh were obtained lateron. 12. DW.2 Surinder Singh was examined by the appellants-accused to show that the deceased was a man of bad character and a complaint was filed by the said witness against him on 20.11.2005. DW.3 Sudesh Kumar Crl. A. No. 980-DB of 2007 -13- Agnihotri has been examined to prove that he conducted the enquiry and found Lakhwinder Singh and Kulwant Singh as innocent. This witness has stated that on the basis of his examination of the relevant record of Police Post Rayya, including the Daily Diary of the Police Station as well as the wireless record, he found that Lakhwinder Singh and Kulwant Singh were not present in the Police Post at the time of the alleged occurrence. This witness has further stated in his examination-in-chief that during enquiry, it also came to light that Mohinder Singh (PW.1) and Baldev Singh (PW.2) had thrashed Sukhjinder Singh alias Shinda, when he was in Police Post Rayya. He has also stated that during enquiry, he found that deceased Sukhjinder Singh alias Shinda committed suicide with the help of handcuff which was put on him by the police. He further stated that on his recommendation, Lakhwinder Singh was got discharged in this case. However, he recommended that departmental action be taken against him for negligence. In his cross-examination, he has admitted that DDR register starts from 23.11.2005 at 8.00 AM. He has also admitted that there is no certificate on the first page of the register. He further admitted that there is no page marking on the DDR register. He denied the suggestion that the new register was started on 23.11.2005 to save the accused. He admitted that Police Post Rayya was under his supervisory charge and all the accused were posted there on the day of occurrence. DW.4 Sukhwinder Singh was posted as Wireless Operator at Police Post Rayya on 23.11.2005, the day of occurrence. He has placed on record photo copy of the wireless log book Crl. A. No. 980-DB of 2007 -14- dated 23.11.2005 as Ex.DW4/C. According to this document, there are entries from 18.05 hours to 18.32 hours about calling of Charlie-12, which was the code of Lakhwinder Singh ASI. In cross-examination, this witness has admitted that the original of the aforesaid photo stat copy was destroyed a day before production of the photo stat copy in the court. This witness categorically stated that the original of Ex.DW4/A and Ex.DW4/B were handed over to him. He got photo copies and then got the same attested from Inspector and brought the same in the Court. This witness has categorically stated that he has not seen the original of Ex.DW4/C nor the same was brought by him in the court, though he denied the suggestion that Ex.DW4/C is a manipulated document. DW.5 Constable Nirvail Singh was posted in Police Station Beas and brought the DDR dated 22.11.2005 of Police Station Beas. This witness proved only entry No. 27 dated 24.11.2005, which in our opinion is not relevant. DW.6 HC Nachhatar Singh has produced the record of the posting of police officials of all the Police Stations in the jurisdiction of SSP, Rural, Amritsar. 13. Mr. Puneet Bali, Advocate, learned counsel appearing for appellants Lakhwinder Singh and Kulwant Singh submitted that as far as these two appellants are concerned, the prosecution has miserably failed to lead any cogent evidence to prove that at the time of the alleged occurrence, these two appellants were present in Police Post Rayya and had committed the alleged offence. Statements of Mohinder Singh (PW.1), Baldev Singh (PW.2) and Amarjit Kaur (PW.3), made before the police under Section 161 Crl. A. No. 980-DB of 2007 -15- Cr.P.C. and before the Court, are contradictory on material facts, which go to the root of the matter. In this regard, learned counsel submitted that there are three omissions in the statements of these witnesses before the police, which they have later on improved before the court, in order to falsely implicate both the appellants. Before the police, none of these witnesses had stated that they had seen the deceased in the Police Post. All the three witnesses specifically made improvement with regard to seeing of Sukhwinder Singh alias Shinda in Police Post Rayya, giving him beatings and chaining him. Secondly, learned counsel submitted that initially, the name of Kulwant Singh did not come in the statement (Ex.PA) of complainant Mohinder Singh, but later on, he was also named as the fourth police official, who came at the stall of the deceased and took him to the Police Post. He further submitted that the said witness has also not named Lakhwinder Singh as in-charge of the Police Post, when he along with Baldev Singh (PW.2) alleged to have went to the Police Station and talked to the in-charge of the Police Post, whereas in his cross-examination, this witness had stated that he knew Lakhwinder Singh, but he has not given any explanation as to why Lakhwinder Singh was not named in his statement before the police. Learned counsel further pointed out that this witness had disclosed the name of Kulwant Singh before the police, but he could not explain as to why his name was not mentioned in his statement (Ex.PA). Learned counsel further pointed out that the statement of Amarjit Kaur (PW.3) before the Court is also not trustworthy, because in