Crl.Appeal No. 674-DB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.674-DB of 2004 Date of decision:21.12.2011 Harjinder Singh @ Jonti and others ... Appellants versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE S.S.SARON. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Vikram Chaudhary & Mr.K.L.Chaudhary, Advocates, for the appellants. Mr.S.S.Gill, Addl.AG, Punjab. ... JORA SINGH, J. Harjinder Singh @ Jonti, Jatinder Singh @ Sonu, Sarabjit Singh @ Lali, Sahib Singh @ Sabha, Jasbir Singh @ Juj and Resham Singh @ Kaka, appellants, have filed this appeal against the judgment of conviction and order of sentence dated 13.7.2004 passed by the learned Additional Sessions Judge (Adhoc), Amritsar, in Sessions Case No. 385/2003, arising out of FIR No.129 dated 24.7.2002 under Sections 364/302/148/149 of the Indian Penal Code (`IPC' for short), Police Station Bhikhiwind. By the said judgment, the appellants were convicted for the offences punishable under Sections 364 and 302/149 IPC and sentenced to undergo RI for seven years besides to pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo RI for one month each under Section 364 IPC, and to undergo life imprisonment besides to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo RI for two months each under Sections 302/149 IPC. Both the sentences were ordered to run concurrently. Case of the prosecution, in brief, is that on 24.7.2002 at about Crl.Appeal No. 674-DB of 2004 2 7.45 pm, Mukhtiar Singh son of Gurdial Singh lodged report with the police that he is the resident of Village Sur Singh and is running a flour mill. He has two sons. His son Harpal Singh (deceased) is the friend of Harjinder Singh @ Jonti son of Randhir Singh, resident of Sur Singh. They used to visit the houses of each other. Sometimes, they were sleeping in his (Mukhtiar Singh) house and sometimes, in the house of Harjinder Singh. Harpal Singh is having cordial relations with Harjinder Singh. About 6-7 days back, Randhir Singh, father of Harjinder Singh, lodged a protest with him that Harpal Singh has caught his daughter from her arm and he felt insulted. Then he (Mukhtiar Singh) replied to Randhir Singh that in case Harpal Singh has committed such like act, then he has committed a blunder. He tendered apology in view of the blunder committed by Harpal Singh. On 23.7.2002, he along with his brother Balkar Singh and wife Kuldip Kaur was present at his flour mill. At about 10.00 pm, Harjinder Singh @ Jonti, Jatinder Singh @ Sonu, Sarabjit Singh @ Lali, Sahba, Jasbir Singh @ Juj and Resham Singh @ Kaka, all residents of Patti Nangal, Village Sur Singh, came at his flour mill and requested Harpal Singh to accompany them. Harpal Singh agreed and accompanied them but failed to return. He thought that as usual, Harpal Singh might have gone to the house of Harjinder Singh and would have slept there. Next day in the morning, i.e., 24.7.2002, he (Mutktiar Singh) had gone to the houses of the appellants to know the whereabouts of Harpal Singh but they were not present in their respective houses. He came to know from their family members that all the appellants had gone during last night but did not return. Then he suspected that Harpal Singh might have been murdered by the appellants because he (Harpal Singh) had misbehaved with the sister of appellant Harjinder Singh. Crl.Appeal No. 674-DB of 2004 3 He had gone to lodge a report but in the area of Singhpura, police party headed by SI Balkar Singh met him. Then his statement (Ex.PA) was recorded. He signed the same in token of its correctness. After making endorsement (Ex.PA/1) at 7.45 pm, statement was sent to the police station, on the basis of which, formal FIR (Ex.PA/2) under Sections 364/148/149 IPC was recorded. Special report was delivered to the Ilaqa Magistrate at 6.30 am on 25.7.2002. Gurbhej Singh son of Suba Singh while going towards his fields on 25.7.2002 was present near the grain market, then noticed foul smell emanating from a pucca room. Dead body of Harpal Singh was seen lying in the said room. Information was given to complainant Mukhtiar Singh, who along with Mehal Singh and Satnam Singh came at the spot. Mukhtiar Singh, Mehal Singh and Satnam Singh were deputed to guard the dead body. Gurbhej Singh had gone to lodge a report but near the bus stand, police party headed by SI Balkar Singh met him. Statement of Gurbhej Singh was recorded by SI Balkar Singh at 9.00 am. In view of the statement of Gurbhej Singh, DDR No. 4 dated 25.7.2002 (Ex.PJ) was recorded. Offence punishable under Section 302 IPC was added. Special report was delivered to the Ilaqa Magistrate at 12.15 pm on 25.7.2002. SI Balkar Singh along with the police party had gone to the place where dead body was lying. Rough site plan (Ex.PK) with its correct marginal notes was prepared. Blood stained earth was lifted from the spot and the same was made into a sealed parcel, sealed with the seal bearing impression `BS'. Sealed parcel was taken into police possession vide memo (Ex.PC) attested by the witnesses. Foot prints were noticed at the place of the occurrence and their moulds were prepared. Moulds were taken into Crl.Appeal No. 674-DB of 2004 4 police possession vide separate memo attested by the witnesses. Inquest report (Ex.PF) was prepared. Dead body was handed over to the police officials for post mortem examination. After post mortem examination, the clothes worn by the deceased were taken into police possession after the same were made into a sealed parcel. Dead body was handed over to the relations of the deceased for cremation. On 1.8.2002, statement of Gurbhej Singh was recorded. On 5.8.2002, Harjinder Singh along with three appellants were arrested. On 7.8.2002, Harjinder Singh, Jatinder Singh and Sahba were interrogated. Harjinder Singh suffered a disclosure statement (Ex.PM). In pursuance of his disclosure statement, he got recovered, a scissor and a shirt from the specified place. Sketch of the scissor was prepared. Scissor and shirt were made into separate sealed parcels. Sealed parcels were taken into police possession vide memo (Ex.PN). Sahba was also interrogated and suffered a disclosure statement (Ex.PO). In pursuance of his disclosure statement, he got recovered dagger. Sketch of the dagger was prepared. Dagger was taken into police possession vide separate memo attested by the witnesses after the same was made into a sealed parcel. Sahba also got recovered a shirt stained with blood from the specified place. Shirt was taken into police possession vide separate memo attested by the witnesses after making into a sealed parcel. Appellant Jatinder Singh was also interrogated and suffered a disclosure statement. In pursuance of his disclosure statement, he got recovered a blood stained shirt. Recovered shirt was made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. On 9.8.2002, Naib Tehsildar Harkaran Singh was summoned to the police station and in his presence, Crl.Appeal No. 674-DB of 2004 5 moulds of the foot prints of Harjinder Singh, Jatinder Singh, Sarabjit Singh and Sahba were taken. Moulds were taken into police possession vide separate memo attested by the witnesses. On 13.8.2002, Jasbir Singh and Resham Singh were arrested and moulds of their foot prints were also taken in the presence of Naib Tehsildar Harkaran Singh on 16.8.2002. Moulds were taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in Court. Appellants were charged for commission of offences punishable under Sections 302/149/364 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution examined number of witnesses. PW1 Mukhtiar Singh is the complainant. He has reiterated his stand before the police in view of his statement (Ex.PA) recorded by the police on 24.7.2002. PW2 Balkar Singh is the brother of complainant Mukhtiar Singh. He has supported the version of Mukhtiar Singh. PW3 Rishi Ram has prepared scaled site plan (Ex.PD). PW4 Dr.Sukhwinder Singh Sandhu on 25.7.2002 at 11.45 am had conducted post mortem examination on the dead body of Harpal Singh and found the following injuries on his person:- “1. An incised wound 2 x 5 cm on the back of hand, wound was mussel deep. 2. An incised punctured wound 4 x 1 cm. longitudinal just above and nipple on left side of chest. Crl.Appeal No. 674-DB of 2004 6 3. 3 lacerated punctured wounds 5x.3cm in dimension on front and right side of chest just below the clavicle. 4. An incised punctured wound 3 x 1 cm on right lower part of the chest. 5. 2 incised punctured wounds in area 3 x 2 cm on back and lateral side of chest. 6. 2 lacerated punctured on back of right side chest on dissection injury No.2 had cut mussel, pleurae and underlying left lung, heart was punctured about 5 00 cc of blood was present of left chest. Injury no.3 are muscle deep. Injury No.4 has cut muscle pleurae at right lung, about 50 cc of blood was present of right chest cavity injury no. 5 and are muscle deep. 7. Multiple incised punctured wound in area 10x 8 cm on front and left side of neck. 8. An incised punctured wound 2x5 cm on right side of neck just below right ear muscle deep. 9. An incised punctured wound 2x1 cm on right side of face in front of right ear bone deep. 10. Incised punctured wound 3x4.5 cm on back of right ear bone deep. 11. Multiple lacerated wound area 5x4.5 cm on chin and sub medible region. Injuries are muscle deep. On dissection underlying muscles, trachea, punctured under injury No.7. Crl.Appeal No. 674-DB of 2004 7 12. 3 lacerated punctured wound on right supra scapular region 5 cm from shoulder joint. 13. 2 lacerated punctured wound in front of right upper arm 1.5x.5 cm on muscle deep. 14. Incised wound 1.5x.5 cm on back of right forearm muscle deep. 15. Incised wound 4x1.5 cm on index finger right hand. 16. Incised punctured wound 2.x0.5 cm on right thigh, muscle deep. 17. Incised punctured wound 1.5x.5 cm on back of left fore arm muscle deep. 18. Incised punctured wound 2x1 cm on left lateral side of abdomen. Underlying muscle and pertonium cut. 19. Incised punctured wound 2x.5 cm on back of left side of abdomen. 20. Incised punctured 2x0.5 cm on front of shoulder joint muscle deep. 21. 3 lacerated punctured wound on back of left shoulder joint. 23. Incised wound 2x.5 cm on back of right ear bone. 24. Lacerated punctured wound on left side of face 5 cm from below and lateral region. 25. An abrasion 2. x 1 cm on lateral side of right leg just above ankle joint. 26. Incised wound 1.5 x .5 cm on front left wrist joint muscle deep. Crl.Appeal No. 674-DB of 2004 8 27. A contusion 3 x 1 cm on front of left leg middle fourth region.” Cause of death was shock and haemorrhage due to injuries no. 2, 4 and 7, which were sufficient to cause the death in the ordinary course of nature. Probable duration between the injuries and death was immediate and between the death and post mortem was 24 hours to 36 hours. PW5 Gurmej Singh stated that on 29.7.2002, Harjinder Singh came to his house at about 8.30/9.00 pm and made an extra judicial confession to the effect that Harpal Singh @ Palla was his friend. 7-8 days earlier, they were enjoying movie on C.D.. In the meantime, his sister came there. Suddenly electric light went off. Then Harpal Singh had caught hold his sister from her arm. After that, they had lodged protest with Mukhtiar Singh, father of Harpal Singh. Mukhtiar Singh had tendered apology. He had a talk with his friends, i.e., Sonu, Sahiba, Sarabjit, Judge, Resham and Kaka, and to take a revenge, they had gone to the house of Harpal Singh at about 10.00 pm with a request to accompany them. Harpal Singh had gone with them. In a pucca room in the grain market, Harpal Singh was murdered by them by giving scissor and dagger blows. Harjinder Singh requested to produce them before the police. Then Harjinder Singh was requested to bring other appellants along with him on the next day but they did not turn up. PW6 Harkaran Singh, Naib Tehsildar, stated that on 9.8.2002, on the request of the police, he had gone to the Police Station, Bhikhiwind. In his presence, moulds of the foot prints of Harjinder Singh, Jatinder Singh, Sarabjit Singh and Sahba were taken. Moulds prepared by the police were signed by him and were taken into police possession vide memo (Ex.PG) Crl.Appeal No. 674-DB of 2004 9 attested by him. On 16.8.2002, again he had gone to the police station and in his presence, moulds of the foot prints of Resham Singh and Jasbir Singh were taken. Same were taken into police possession vide memo (Ex.PH) attested by him. PW7 SI Balkar Singh is the Investigating Officer. After close of the prosecution evidence, statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C. for short). The substance of the evidence appearing against them was put to them. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellants was that they were falsely implicated in this case. They are innocent. In defence, DW1 Gurinder Singh stated that on 23.7.2002 at 9.00 pm, he was present in his factory, namely, Taj Card Board and Paper Industries Pvt. Ltd., situated at Loharka Road, Amritsar. He received information that a tanker of chemical has got struck at the back side of the factory. He had gone to that place. Then noticed 3-4 tractor trolleys loaded with the wheat straw. Tanker was unloaded and then evacuated. Kundan Singh and his Sons Jasbir Singh and Sonu @ Jatinder, Lakha Singh, Sarabjit Singh and Sukha, who had brought the straw in their tractor trolleys, were there. They had stayed there till morning. After hearing learned PP for the State, learned counsel for the appellants and from the perusal of the evidence on the file, the appellants were convicted and sentenced as stated aforesaid. We have heard learned counsel for the appellants, State counsel and with their assistance have gone through the evidence on the file. Crl.Appeal No. 674-DB of 2004 10 Learned counsel for the appellants submitted that it is a blind murder. There is no eye witness. When case is based on circumstantial evidence, then motive assumes importance. Few days earlier to the occurrence, the deceased had caught hold the sister of appellant Harjinder Singh. Father of Harjinder Singh had lodged protest with the complainant. Then the complainant had tendered apology. When the deceased was not having cordial relations with the appellants, then the deceased was not expected to accompany the appellants. On 23.7.2002 at 10.00 pm, the appellants had gone to the house of the deceased with a request to accompany them. At that time, complainant Mukhtiar Singh, his brother Balkar Singh and wife Kuldip Kaur were present in the house. When Harjinder Singh was not having cordial relations with Harpal Singh (deceased), then they should not have allowed him (Harpal Singh) to accompany the appellants. Harpal Singh had misbehaved with the sister of Harjinder Singh and the complainant had tendered apology on behalf of Harpal Singh, then the appellants had no motive to murder because earlier dispute amongst the deceased and appellant Harjinder Singh was over. The story regarding last seen inspires no confidence because if on 23.7.2002 at 10.00 pm, the deceased had gone with the appellants and failed to return, then on the next day in the morning, report should have been lodged with the police, whereas report was lodged at 7.45 pm on 24.7.2002. Pucca room in the grain market from where dead body was found is at a distance of about 3 killas from the house of the complainant. If on 23.7.2002 at 10.00 pm, the deceased was taken away by the appellants, then it is very strange that the complainant party did not hear the shrieks of the deceased when he was murdered in a pucca room at a distance of 3 killas. 27 injuries were Crl.Appeal No. 674-DB of 2004 11 noticed on the person of the deceased. When number of injuries were caused with different weapons, then the deceased was expected to raise hue and cry. During night time from a distance of 3 killas, the complainant party was expected to hear raula. On 29.7.2002, Harjinder Singh made an extra judicial confession before PW5 Gurmej Singh. In case, Harjinder Singh had made an extra judicial confession before PW5 Gurmej Singh on 29.7.2002, then he should have produced Harjinder Singh before the police. There was no reason to allow him to leave his house. Gurmej Singh should have informed the complainant party or the police but no explanation why intimation was not given to the complainant party or the police on 29.7.2002 or on the next day. Statement of Gurmej Singh was recorded on 1.8.2002. He was not holding any respectable post. He was introduced simply to strengthen the prosecution case. On 25.7.2002, dead body of Harpal Singh was noticed by Gurbhej Singh but he was not examined for the reasons best known to the prosecution. Complainant Mukhtiar Singh admitted that on 24.7.2002, he came to know that his son was murdered and this fact was disclosed to him by Gurbhej Singh at 5.30 pm. So, statement of Gurbhej Singh falsifies the prosecution story. When the case is based on circumstantial evidence, then the prosecution was required to complete the chain of circumstances. When chain of circumstantial evidence is not complete, then it is not safe to convict the appellants. Learned State counsel submitted that the deceased was the best friend of Harjinder Singh but few days earlier to the present occurrence, the deceased had caught hold the sister of Harjinder Singh. Father of Harjinder Singh had lodged protest with complainant Mukhtiar Singh. Then the Crl.Appeal No. 674-DB of 2004 12 complainant felt sorry. After that, there was no dispute. Before the present occurrence, deceased and Harjinder Singh sometimes used to sleep in the house of Harjinder Singh and sometimes in the house of Harpal Singh (deceased). When the complainant had tendered apology, then he allowed his son to accompany the appellants at 10.00 pm on 23.7.2002. No doubt, it was a blind murder and there was no eye witness. The complainant could easily request the police to trace the real culprits. There was no idea to request the police to implicate the appellants but on 23.7.2002 at 10.00 pm, the deceased was in the company of the appellants. On the next day in the morning, the complainant had gone to the houses of the appellants but they were not found in their houses. Then the complainant suspected that Harpal Singh might have been murdered by the appellants. In the evening, report was lodged with the police. The appellants were named. Motive is always in the heart of the accused. He is to see when and where and how the crime is to be committed. Death was on the intervening night of 23/24.7.2002 in view of the post mortem report. On 29.7.2002, Harjinder Singh made an extra judicial confession before PW5 Gurmej Singh that he along with other appellants had committed the crime. Harjinder Singh was not produced before the police because he promised to bring the other appellants with him, but he failed to return on the next day. Then the matter was brought to the notice of the police on 1.8.2002 by PW5 Gurmej Singh. Gurmej Singh is not the relative of the complainant. Four appellants, namely, Harjinder Singh, Jatinder Singh, Sarabjit Singh and Sahba were arrested on 5.8.2002 and Jasbir Singh and Resham Singh were arrested on 13.8.2002. In pursuance of his disclosure statement, Harjinder Singh got recovered a scissor from the specified place. Sahba in pursuance of his disclosure Crl.Appeal No. 674-DB of 2004 13 statement got recovered a dagger from the specified place. Moulds of foot prints of the appellants were taken in the presence of PW6 Harkaran Singh, Naib Tehsildar. Number of injuries noticed on the person of the deceased suggest that the murder was not by one person. All these circumstances show that the evidence on the file was rightly scrutinized by learned trial Court. Admittedly, blind murder. There is no eye witness. Case is based on circumstantial evidence. Appellants are not to be convicted when chain of circumstances is not complete. Prosecution is to stand on its own legs and cannot derive any strength from the weakness of the defence. When the case is based on circumstantial evidence, then motive assumes importance. Evidence on the file shows that deceased Harpal Singh was the best friend of Harjinder Singh. Earlier to the occurrence, sometimes during night time, Harpal Singh used to sleep in the house of Harjinder Singh and sometimes, Harjinder Singh used to sleep in the house of Harpal Singh. About 6-7 days earlier to the occurrence, Harpal Singh (deceased) had caught hold the sister of Harjinder Singh from her arm. Randhir Singh, father of Harjinder Singh, lodged protest with the complainant. Then complainant Mukhtiar Singh tendered apology and the matter was over. But Harjinder Singh had a motive to commit the crime because his sister was insulted by Harpal Singh. Motive is always in the heart of the accused and the accused is to see when, where and how the crime is to be committed. Common experience shows that sometimes without motive, heinous crimes are committed but in this case, to take revenge, the appellants had gone to the house of Harpal Singh on 23.7.2002 at 10.00 pm with a request to Crl.Appeal No. 674-DB of 2004 14 accompany them to have a round in the village. On the request of the appellants, Harpal Singh had gone with them. As per the post mortem report, 27 injuries were noticed on the person of Harpal Singh. Death was on the intervening night of 23/24.7.2002. Due to earlier incident, with ulterior motive, the appellants had gone to the house of the deceased and had committed the crime. On the other hand, the complainant party had no motive but named the appellants because the deceased had no enmity with anybody else but was with the appellants at 10.00 pm on 23.7.2002 and unnatural death on the same night. Harpal Singh was the close friend of Harjinder Singh. Harpal Singh had committed a blunder by insulting the sister of Harjinder Singh but the complainant had tendered apology. Harpal Singh had gone with the appellants on 23.7.2002 at 10.00 pm but failed to return. On the next day, i.e., 24.7.2002, the complainant without naming the appellants could lodge a report with the police by saying that on 23.7.2002 at 10.00 pm, Harpal Singh had gone from his house but failed to return. Effort be made to trace him but on 24.7.2002 in the morning, the complainant had gone to the houses of the appellants, but they were not found present there. From their family members, the complainant came to know that the appellants had gone on the last night but failed to return. When the appellants were found missing from their respective houses, then the complainant suspected that due to the earlier incident, Harpal Singh might have been murdered by the appellants because Harpal Singh had gone with them. Then a report was lodged on 24.7.2002 at 7.45 pm. Next submission of learned counsel for the appellants was that the story of last seen is not correct one because Harpal Singh had caught hold sister of Harjinder Singh. Father of Harjinder Singh had lodged a Crl.Appeal No. 674-DB