Crl.Appeal No.77-DB of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.77-DB of 2003 Date of decision: 3.2.2010 Kaka Singh and another ... Appellants versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.R.K.Girdhar, Advocate, for the appellants. Ms.Gurveen H.Singh, Addl.AG, Punjab. ... JORA SINGH, J. Kaka Singh son of Atma Singh and Gurmukh Singh son of Nazar Singh preferred this appeal to challenge the judgment/order dated 21.9.2002 passed by Additional Sessions Judge, Muktsar, in FIR No.44 dated 7.3.1999 under Sections 302/449/34 IPC, Police Station Sadar, Muktsar. By this judgment, they were convicted under Sections 302 and 449 IPC and sentenced to undergo Imprisonment for life and to pay fine of Rs.3,000/-, in default of payment of fine, to further undergo RI for one year, each, under Section 302 IPC, and to undergo imprisonment for life and to pay fine of Rs.3,000/-, in default of payment of fine, to further undergo RI for one year, each, under Section 449 IPC. Case of the prosecution, in brief, is that Puran Singh, complainant, appeared as PW2, is the son of Hansa Singh (deceased). On 7.3.1999 at about 7.30 AM, police party headed by SI/SHO Mukhwinder Singh was present near Bathinda by-pass, where Puran Singh had met the police party and reported that he is a resident of Village Barkandi. He has Crl.Appeal No.77-DB of 2003 2 one brother and two sisters. Both the sisters are married. His brother Jaskaran Singh is married and is residing at Muktsar. He is unmarried. On the intervening night of 6/7.3.1999, after taking meals, he and his mother Hamir Kaur had slept in one room, whereas his father Hansa Singh in a separate room without door plank, because repair of the house was going on. Today, i.e., 7.3.1999 at about 6.00 AM, he woke up and had gone to the room of his father. Then Hansa Singh was found dead with injuries on his person with sharp edged weapon. Hansa Singh was murdered by some unknown person. His mother Hamir Kaur was deputed to guard the dead body. He along with Sukhwant Singh, Sarpanch, had gone to lodge a report. Police party had met them on the GT road near Bathinda by-pass, where he got recorded his statement. The statement was read over and explained to him. He had signed the same in token of its correctness. After making endorsement at 7.30 AM, statement was sent to the police station, on the basis of which, formal FIR was recorded at about 8.30 AM. Police party headed by SI Mukhwinder Singh along with complainant and Sukhwant Singh, Sarpanch, had gone to the spot. Inquest report was prepared. Blood stained earth was lifted from the spot and was sealed in a plastic box. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Three moulds of bare foot prints were lifted from the spot and the same were taken into police possession vide separate memo attested by the witnesses. Dead body was sent to hospital for postmortem examination. Blood stained quilt, mattress and pillow were lifted from the spot and after converting into sealed parcels, were taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. Crl.Appeal No.77-DB of 2003 3 Supplementary statement of Puran Singh was recorded. Raid was conducted to apprehend the accused, but they were not available in their houses. On return to the police station, case property was deposited with the Incharge of Malkhana. On 17.3.1999, Gura Singh, Ex-Sarpanch of Village Panni Wala Fatta, had produced both the accused before SI Swaran Singh. Accused were interrogated separately and in pursuance of disclosure statements suffered by them separately, the accused got recovered sabble and kirpan from the specified places. Recovered weapons were sealed and sealed parcels were taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in the Court. Accused were charged under Sections 302/449/34 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined PW1 Dr. P.N.Girdhar. He stated that on 7.3.1999 at 1.40 PM, he had conducted postmortem examination on the dead body of Hansa Singh. Rigor mortis was present in all the four limbs. He found the following injuries:- “1. Incised wound 9 cms x 1.5 cms on the forehead oblique in direction starting from the right side of the forehead, 2.5 cms above the right eye brow, 1.5 cms from the midline extending to the left side just below the anterior hair line. Clotted blood was present. On dissection underlying bone was fractured. Meninges and brain matter was lacerated. Blood was present in the cranial Crl.Appeal No.77-DB of 2003 4 cavity. 2. Incised wound 11 cms x 3 cms in size extending from the bridge of the nose to the left side of the face injuring left eye cutting left eye extending towards the temporal area. On dissection the nasal bone was fractured. Temporal bone was fractured. Eye ball was sunken and injured. Clotted blood was present. 3. Incised wound 8 cms x 0.75 cm on the left side of the head, 2 cms from the midline, 4 cms behind the anterior hair line, 7 cms from the left ear. Brain matter was coming out. On dissection, skull bone was fractured. Brain matter was lacerated and coming out. Meninges were lacerated. Blood was present in the cranial cavity. 4. Diffused swelling 5 x 4 cms on the dorsum of the left hand with incised wound 2 cms x 1 cm over it. On dissection 2nd and 3rd metacarpal bones were fractured. 5. Incised wound 1 x 1 /2 cm on the dorsem of the left wrist joint. On dissection, underlying bones were normal. Cause of death was due to shock and haemorrhage due to multiple injuries on the vital organ, i.e., brain. Injuries No.1 and 3 were sufficient to cause death in ordinary course of nature. Ex.PA is the copy of postmortem report. PW2 Puran Singh, complainant, is the son of deceased. He stated that on the intervening night of 6/7.3.1999 at about 9.00 PM, he along with his mother had slept in one room, whereas his father Hansa Singh had slept in the second room, without door planks. In the morning at about 6.00 Crl.Appeal No.77-DB of 2003 5 AM, he had gone to the room of his father, but he was found murdered with sharp edged weapon. Hamir Kaur was deputed to guard the dead body. Then he along with Sukhwant Singh, Sarpanch, had gone to lodge a report. PW3 Hamir Kaur stated that on the fateful night, she and her son Puran Singh were sleeping in one room, whereas Hansa Singh was sleeping in second room. At about 12.00/1.00 during night time, she heard shrieks of her husband. She was not fully slept at that time due to blood pressure. On hearing shrieks, she had gone to the room of her husband. Electric light was on at that time. Kaka Singh armed with sabble and Gurmukh Singh armed with kirpan were seen while causing injuries to Hansa Singh. Accused had threatened her to eliminate if raised raula. PW4 ASI Waryam Singh stated that on 18.3.1999, he had produced the accused in the Court. As per request of SI/SHO Mukhwinder Singh, moulds of foot prints of the accused were taken in the presence of the Magistrate and the same were taken into police possession vide separate memo attested by him. PW5 HC Ranjit Singh stated that dead body was handed over to him by the Investigating Officer for postmortem examination. PW6 Inspector Mukhwinder Singh had initially investigated the case in hand. PW7 Gura Singh, r/o Village Panniwala Fatta, stated that on 16.3.1999, accused Kaka Singh and Gurmukh Singh were produced before him by Joginder Singh, r/o Village Buraj Sidhwan. Both the accused had made extra judicial confession before him turn by turn. Accused were kept in his house on that night and on the next day, they were produced before SI Swaran Singh. Both the accused were interrogated separately and as per Crl.Appeal No.77-DB of 2003 6 disclosure statements suffered by them, the accused got recovered the weapons of offence from the specified places. PW8 HC Major Singh tendered his affidavit (Ex.PO). PW9 AMHC Bashir Singh tendered his affidavit (Ex.PP). PW10 Constable Sukhmander Singh tendered his affidavit (Ex.PQ). PW11 Constable Angrej Singh tendered his affidavit (Ex.PR). PW12 HC Surinder Singh tendered his affidavit (Ex.PS). PW13 SI Swaran Singh had investigated the case in hand after SI Mukhwinder Singh. He stated that on 17.3.1999, Gura Singh had produced accused Kaka Singh and Gurmukh Singh before him. Accused were interrogated and as per disclosure statements suffered by them, the accused got recovered sabble and kirpan from the specified places. Weapons were sealed and sealed parcels were taken into police possession vide separate memo attested by the witnesses. PW14 Constable Ranjit Singh tendered his affidavit (Ex.PT). PW15 Surjit Singh Gill, Retd. JE, stated that scaled site plan (Ex.PU) was prepared by him. PW16 Constable Basant Singh tendered his affidavit (Ex.PV). Report of the Chemical Examiner (Ex.PX) and report of the Forensic Laboratory (Ex.PY) were tendered by the Public Prosecutor. After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. The accused denied all the prosecution allegations and pleaded to be innocent. In defence, Joginder Singh son of Kartar Singh and Joginder Singh son of Gurdas Singh were examined to state that the accused were not Crl.Appeal No.77-DB of 2003 7 produced by them before Gura Singh (PW7). After hearing learned PP for the State and defence counsel for the appellants-accused and from the perusal of evidence on the file, trial Court had convicted the accused under Sections 302 and 449 IPC and sentenced them as stated aforesaid. Learned counsel for the appellants argued that it is a case of blind murder. No eye witness had seen the alleged occurrence, but later on, Hamir Kaur was introduced to state that she had seen the appellants while murdering Hansa Singh. Statement of Hamir Kaur is not reliable because she and her son Puran Singh had slept in one room, whereas deceased had slept in second room. In the morning at 6.00 AM, Puran Singh had gone to the room of Hansa Singh, then Hansa Singh was found murdered with sharp edged weapon. After that, Hamir Kaur was called and deputed to guard the dead body of Hansa Singh. She did not tell anything to her son about the occurrence. Then Puran Singh along with Sukhwant Singh, Sarpanch, had gone to lodge a report. That means, occurrence was not witnessed by Hamir Kaur. Learned counsel further submits that the second allegation to connect the appellants with the crime is that the appellants had made extra judicial confession before Gura Singh, resident of Village Panniwala Fatta. Bhupinder Singh, son-in-law of the deceased, is also resident of Village Panniwala Fatta. According to the story, Joginder Singh had produced the appellants before Gura Singh and after that, the appellants had made extra judicial confession before Gura Singh. Firstly, the appellants had no reason to contact Joginder Singh, r/o Village Burj Sidhwan, because on 16.3.1999, the appellants were not wanted by the police. When the police was not after Crl.Appeal No.77-DB of 2003 8 the appellants, then no reason to contact Joginder Singh and if the appellants had contacted Joginder Singh, then question is what was the reason for Joginder Singh to produce them before Gura Singh, r/o Village Panniwala Fatta. It has come on record that Gura Singh had no say in the police department. It has come on record that Gura Singh had attended the bhog ceremony of Hansa Singh. Appellants are the residents of Village Barkandi. Gura Singh was also introduced because Bhupinder Singh, son- in-law of the deceased, is also from his village. Story was concocted that on 16.3.1999, both the appellants were produced before Gura Singh, and then the appellants made extra judicial confession before Gura Singh. Gura Singh stated that during night time, both the appellants had stayed in his house and on the next day, appellants were produced before the police. If the appellants had made extra judicial confession before Gura Singh on 16.3.1999, then Gura Singh should have immediately informed Bhupinder Singh or the police. On 16.3.1999, the appellants could easily be produced before the police, but no explanation as to why no intimation either to the complainant party or the police and why the accused were kept in his house. Next allegation is that as per disclosure statements suffered by the appellants, weapons of offence were recovered, but story regarding recovery of weapons is also doubtful because at the time of interrogation, no independent witness was joined. Witness of recovery of weapons is Gura Singh, but Gura Singh is very much interested in the success of this case because he is from the village of Bhupinder Singh, who is the son-in-law of the deceased. Last circumstantial evidence is lifting of moulds of bare foot prints. On 7.3.1999, moulds of bare foot prints were lifted from the place of occurrence and thereafter, moulds of foot prints of the accused were taken Crl.Appeal No.77-DB of 2003 9 in the presence of the Magistrate on 18.3.1999, but no report of the laboratory as to whether moulds of bare foot prints lifted from the place of occurrence on 7.3.1999 were tallying with the moulds of bare foot prints of the accused taken in the presence of the Magistrate. Evidence on the file was not properly scrutinized, therefore, according to learned counsel, the appellants are entitled to be acquitted. Learned State counsel argued that before the present occurrence, complainant party had no enmity with the appellants. So, there was no idea to falsely implicate the appellants. Appellants had a motive to commit the crime because they were demanding payment from the deceased. Appellants were seen by Hamir Kaur while causing injuries to Hansa Singh. Injuries were found to be ante mortem in nature. Gura Singh is not related to the complainant party, although he is the resident of Village Panniwala Fatta. Moulds of bare foot prints lifted from the place of occurrence on 7.3.1999 and the moulds of bare foot prints taken in the presence of Magistrate were sent to the laboratory, but unfortunately, due to cracks, same could not be deposited. We have heard learned counsel for the appellants, the State counseland gone through the evidence on the file. Ex.PC is the statement of Puran Singh son of Hansa Singh (deceased). Statement of Puran Singh was recorded on 7.3.1999 at about 7.30 AM by SI Mukhwinder Singh, when he was present near Bathinda By- pass. On the basis of statement (Ex.PC), formal FIR was recorded at 7.50 AM on 7.3.1999, but in the FIR, appellants were not named. That means, it is a case of blind murder. Case is based on circumstantial evidence. Puran Singh, complainant, appeared as PW2 and stated on oath that on 6.3.1999 at Crl.Appeal No.77-DB of 2003 10 9.00 PM, he and his mother Hamir Kaur had slept in one room, whereas his father Hansa Singh had slept in the second room and that room was without wooden planks, because repair work was going on in the house. At 6.00 AM on 7.3.1999, he woke up and had gone to the room of his father, and found his father Hansa Singh murdered with sharp edged weapon. Puran Singh had deputed his mother Hamir Kaur to guard the dead body and he along with Sukhwant Singh, Sarpanch, had gone to lodge a report. Sukhwant Singh was not examined by the prosecution. In Ex.PC, there is not a word that the occurrence was witnessed by Hamir Kaur. In the Court, Puran Singh stated that later on, his mother had disclosed to him that she had seen Kaka Singh armed with sabble and Gurmukh Singh armed with kirpan while causing injuries to Hansa Singh. Appellants had threatened her to eliminate if disclosed about the occurrence to any one. At about 7.00 AM, Hamir Kaur had disclosed about the involvement of the appellants. In the last line of his cross-examination, Puran Singh admitted that police had met him at 7.00 AM. Rs.500/- was due from Gurmukh Singh, but nothing was due from Kaka Singh. He further stated that his supplementary statement was recorded, but the same was not exhibited for the best reasons known to the prosecution. In case at about 7 or 8.00 AM, Hamir Kaur had informed the complainant that Kaka Singh and Gurmukh Singh during night time at about 12.00/1.00 had caused injuries to Hansa Singh, then this fact should have been disclosed by Puran Singh to the police. That means, Puran Singh is not telling the truth. His statement inspires no confidence. Hamir Kaur, widow of deceased, appeared as PW3 and in chief stated that at about 12.00/1.00 during night time, she had heard shrieks of her husband, because she was not fully slept due to blood pressure. On Crl.Appeal No.77-DB of 2003 11 hearing shrieks, she had gone to the room of Hansa Singh. Electric light was on. Then noticed Kaka Singh armed with sabble and Gurmukh Singh armed with kirpan while causing injuries to Hansa Singh. She tried to raise raula, but the appellants had threatened to eliminate her and her son, if raised a raula. Then she became unconscious. Later on, she regained consciousness, when police came to the spot. After that, intimation was given to the police as to how the crime was committed but statement of Hamir Kaur is not correct one because Puran Singh stated that at 6.00 AM on 7.3.1999, he had gone to the room of his father, then came to know about the murder. After that, Hamir Kaur was deputed to guard the dead body. Puran Singh has not stated a word that his mother was unconscious at that time. If Hamir Kaur was unconscious at 6.00 AM, then how she was deputed to guard the dead body. Investigating Officer stated that when they came to the spot after recording the statement of Puran Singh near Bathinda By-pass, then Hamir Kaur was noticed while sitting by the side of the dead body. As per Hamir Kaur, during night time at about 12.00/1.00, she had seen the appellants while murdering Hansa Singh. Then she became unconscious. But as discussed earlier, there is not a word in the statement of Puran Singh that when he had gone to the room of Hansa Singh in the morning, at that time, Hamir Kaur was lying unconscious in that room. Story regarding unconsciousness was concocted because Puran Singh did not name the appellants. Hamir Kaur in cross-examination admitted that Rs.500/- was due from Gurmukh Singh and Rs.200/- from Kaka Singh, whereas Puran Singh stated that nothing was due from Kaka Singh. At 12.00/1.00 during night time, Hamir Kaur had seen the accused while committing the murder, but nothing on the file that Hamir Kaur had blood Crl.Appeal No.77-DB of 2003 12 pressure and due to blood pressure, she became unconscious. If she was unconscious after seeing the murder of Hansa Singh, then there was no idea to depute her to guard the dead body as per Puran Singh, complainant. That means, neither Puran Singh nor Hamir Kaur had witnessed the appellants while causing injuries to Hansa Singh. Next evidence to connect the appellants with the crime is that appellants had made extra judicial confession before Gura Singh, r/o Village Panniwala Fatta. Bhupinder Singh is son-in-law of the deceased. He is also from village Panniwala Fatta. Gura Singh when appeared as PW7, stated that on 16.3.1999, one Joginder Singh had produced both the appellants before him. Then they had made extra judicial confession before him. During night time, appellants had stayed in his house and on the next day, the appellants were produced before the police. But statement of Gura Singh inspires no confidence because he is the resident of Village Panniwala Fatta. Bhupinder Singh, son-in-law of the deceased, is also the resident of Village Panniwala Fatta. As per story, appellants had firstly contacted Joginder Singh, r/o Village Burj Sidhwan, then Joginder Singh produced the appellants before Gura Singh, but Joginder Singh was not examined by the prosecution. Statement of Joginder Singh was very material. He was to state whether on 16.3.1999 or earlier to that, the appellants had contacted him and if contacted, then whether he had produced them before Gura Singh. Suppose, Joginder Singh had produced both the appellants before Gura Singh on 16.3.1999, then on 16.3.1999, after extra judicial confession by the appellants, Gura Singh should have informed Bhupinder Singh or the police on the same date. Both the appellants could easily be produced before the police. There was no idea to Crl.Appeal No.77-DB of 2003 13 allow the appellants to stay in his house during night on 16.3.1999. Gura Singh had no say in the police department. He was not known to the appellants. When Gura Singh had no say in the police department and was not known to the appellants, then there was no reason for the appellants to contact Joginder Singh with a request to produce them before Gura Singh to avoid torture at the hands of the police. Joginder Singh son of Kartar Singh and second Joginder Singh son of Gurdas Singh, both residents of Village Burj Sidhwan, were produced in defence. Both have stated that appellants are not known to them. They had not produced the appellants before Gura Singh, r/o Village Panniwala Fatta. Both were examined to rule out the possibility that second Joginder Singh of village Burj Sidhwan had produced the appellants before Gura Singh because Gura Singh stated that Joginder Singh, r/o Village Burj Sidhwan, had produced the appellants before him. Father and grand father's name of Joginder Singh was not disclosed by Gura Singh. If one Joginder Singh would have been examined in defence, then there was a possibility of argument by learned State counsel that another Joginder Singh of Village Burj Sidhwan had produced the appellants before Gura Singh and not by Joginder Singh who appeared in defence. No suggestion to the DWs that there is third Joginder Singh. Thus story qua extra judicial confession is an after thought. Next circumstance to connect the appellants with the crime is recovery of weapons as per disclosure statements. Ex.PM and Ex.PN are the disclosure statements suffered by the appellants when they were interrogated by SI Swaran Singh, but recovery of weapons is in the presence of Gura Singh. Gura Singh is very much interested in the success of this case because he and Bhupinder Singh, son-in-law of the deceased, are from Crl.Appeal No.77-DB of 2003 14 Village Panniwala Fatta. If on 16.3.1999, appellants were produced before him and had made extra judicial confession before him, then on the same day, they should have been produced before the police. After recovery of weapons, same were sent to the laboratory and as per report of laboratory (Ex.PY), human blood of group `A' was noticed on the weapons. Pieces of razai, talai and sarhana were also taken into police possession and sent to the laboratory, but report (Ex.PX) is to the effect that blood was noticed, but the report is silent as to whether blood is human blood, whether human blood is of group `A” or group `B'. Pieces of `razai', `talai' and `sarhana' were sent to Serologist, Government of India, but no report of Serologist as to whether blood is of `A' group or `B' group. No explanation why report of Serologist is not forthcoming. In case report of Serologist is to the effect that blood noticed is of `B' group or `O +ve', then story becomes doubtful. Intentionally report of Serologist was not produced for the best reasons known to the prosecution. So, recovery of weapons was