Crl.Appeal No.751-DB of 2005 1 In the High Court of Punjab & Haryana at Chandigarh Date of decision:14.11.2008 Harinder Singh @ Hira Vs. Punjab State CORAM: HON'BLE MR. JUSTICE UMA NATH SINGH HON'BLE MR.JUSTICE A.N. JINDAL Present: Mrs. Baljit K.Mann, Advocate, for the appellant Mrs. Gurveen H.Singh, Addl. Advocate General (Punjab) UMA NATH SINGH, J. This judgment shall also dispose of the connected Criminal Appeal No. 448-DB of 2007 as both these matters relate to the same incident. Crl.Appeal No.751-DB of 2005 arises out of impugned judgment dated 4.10.2005 passed by learned Additional Sessions Judge, Amritsar, in SC No. FTC/15/2005 (Trial No.37 of 2005) holding accused-appellant Harinder Singh guilty of offence under Section 302 IPC and 201 IPC and sentencing him to undergo the punishment of life imprisonment with a fine of Rs.5,000/-, in default of payment of fine to undergo further RI for six months on the first count, and RI for three years with a fine of Rs. 2,000/-, in default of payment of fine to undergo further RI for one month on the second count, whereas Crl.Appeal No.448-DB of 2007 impugns the judgment passed in Sessions Case No. FTC/62/ 2005 ( trial No. 80/2005) whereby two other accused-respondents namely Suba Singh and Daljit Kaur have been acquitted. Thus, to make the position further clear, Criminal Appeal No. 751-DB of 2005 has been filed against the judgment of conviction and sentence by accused-appellant Harinder Singh @ Hira and the connected appeal No. 448-DB of 2007 has been filed by complainant Swinder Kaur (PW.3). For the purpose of disposal of these cases, only the facts as borne out from records of Crl.Appeal No.751-DB of 2005 are mentioned herein. As per prosecution case, a case was registered on 31.10.2004 in Police Station Ajnala on Crl.Appeal No.751-DB of 2005 2 the statement of Smt. Swinder Kaur (PW.3), mother of the deceased and it was recorded by SI Inderjit Singh, Incharge of Special Cell, CIA Staff, Majitha. As per allegations in the prosecution case, Gurdev Singh @ Sonu was elder son of complainant Swinder Kaur whose husband had died about one year before the occurrence. Hardev Singh was the only son of the complainant as her elder son Gurdev Singh was given in adoption to her issueless brother-in-law accused Suba Singh, resident of Ajnala, when he was just 3 years old. Suba Singh is related to complainant being her husband's sister's husband. Accused Harinder Singh @ Hira is the son of Lakhbir Singh, the brother-in-law of complainant, who is her husband's elder brother. Before the date of occurrence, accused Harinder Singh and Suba Singh jointly purchased one tractor for cultivation work. Accused Harinder Singh generally used to visit complainant Swinder Kaur after 15/20 days. Accused Harinder Singh @ Hira had quarreled with deceased Gurdev Singh on many occasions after consuming liquor and he used to harbour a grudge that complainant's son Gurdev Singh has grabbed the land of Suba Singh. About one month before the date of occurrence, deceased Gurdev Singh came to see his mother Swinder Kaur at her house and told her that accused Harinder Singh was inimically disposed of towards him on account of the grudge over the land of accused Suba Singh which Gurdev Singh was managing. Further, about 15 days before the occurrence, accused Harinder Singh went to village Saidupura and told Swinder Kaur that Gurdev Singh had gone some where on his motorcycle with his friends and had since not come back. Complainant Swinder Kaur (PW.3) made enquiry from friends of her son Gurdev Singh. Again after 15/16 days, she enquired from accused Harinder Singh himself but he tried to avoid her. On 31.10.2004, one Channan Singh (PW.4) son of Surinder Singh, went to the house of Swinder Kaur and informed Crl.Appeal No.751-DB of 2005 3 her that on that day morning, he was told by accused Harinder Singh that he had committed a big mistake by killing deceased Gurdev Singh about 20/23 days back by causing axe blow on account of quarrel between them. He had also burried the dead body under the land and he had committed the murder only after consulting Suba Singh. Thereafter, complainant Swinder Kaur (PW.3) while taking Chanan Singh (PW.4) along set out for Police Station Ajnala when on the way, SI Inderjit Singh of CIA Staff (PW.10) and other police personnel met them, to whom she gave her statement, which was reduced into writing vide Ex.PC. The statement was thumb marked having been found to be correct by complainant Swinder Kaur. SI Inderjit Singh put his endorsement (EX. PC/1) and the statement was sent to Police Station whereupon FIR (Ex. PC/2) was recorded by SI Jarnail Singh. Thereafter, SI Inderjjit Singh (PW.10) taking alongwith Swinder Kaur (PW.3), Chanan Singh (PW.4) and other police officials raided the house of Suba Singh at Ajnala where he took accused Harinder Singh in custody. During the course of interrogation, accused Harinder Singh suffered a disclosure statement to the effect that he had lay the dead body of deceased Gurdev Singh burried in the fields of accused Suba Singh within the revenue area of village Chamiari and he also offered to get the same recovered. His statement (Ex. PD) was recorded on which he put his thumb impression. The statement was signed by SI Gurmukh Singh (PW.5) and ASI Gurbax Singh. Thereafter, the Investigating Officer made a request (Ex. PN) to Deputy Commissioner, Amritsar, for deputing an Executive Magistrate in order to recover the dead body in his presence. The application was submitted through SI Gurmukh Singh (PW.5) and thus, Naib Tehsildar Amarjit Singh (PW.11) was deputed to join the investigation. In his presence, and the presence of other police officials on duty and others, accused-appellant Harinder Singh @ Hira Crl.Appeal No.751-DB of 2005 4 dug out the dead body of deceased Gurdev Singh from the place disclosed by him. Clothes of deceased Gurdev Singh were identified by Chanan Singh(PW.4) and Karam Singh( not examined). A recovery memo (EX.PK) was also prepared and the SI conducted the inquest proceedings and prepared a report vide Ex. PA. One piece of chappal was also recovered from that place which was sealed by the SI with his seal `IS' and was taken into possession vide Memo Ex.PM. SI Inderjit Singh also collected the earth from two separate places from near the place of recovery of dead body and sealed the same in separate Dabis (small boxes). He also prepared a visual site plan (Ex. PQ) of the place of recovery. The dead body was entrusted to HC Satinder Singh and Constable Gurdev Singh to get the post-mortem examination conducted. During the course of recovery of dead body, SI Inderjit Singh had also summoned HC Tarvinder Singh (PW.6), and Constable Ravinder Singh (PW.7), the Videographer of CIA Staff, Amritsar. Thus, the entire process of the recovery of dead body was videographed and photographed by these police personnel. Enlarged photographs and videographs along with negatives were taken into possession by the Investigating Officer. The autopsy of dead body was conducted by Dr. Ashok Channana (PW. 1 ) who noticed the following injuries: “1. A chopped incised wound 20 x 13.5 cm was present on the front of forehead as well as nose and both eyes, underlying bones were fractured into multiple pieces.The fractured fragments were lying in the opened up cranium. The underlying brain matter was converted into colliquative liquified material. The membrane are cut and decomposed. Dark colour blood was present in the cranium. The fractured fragments of the bones were stained and infiltrated with dark coloured blood stains.The ribs, cartilages and joints were loose. The heart, stomach, small intestine and bladder was empty. Large intestines contained fecal matter. Rest of the organs were decomposed. Crl.Appeal No.751-DB of 2005 5 (Corrected paragraph: Injury was of ante mortem nature. In my opinion the cause of death in this case was head injury which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between the injury and death was immediate and between the death and post mortem examination about 2 to 4 weeks.)” Learned counsel for appellant Harinder Singh submitted that there was no motive on the part of accused to commit the murder of deceased Gurdev Singh as the accused was related to the deceased as a cousin being his uncle's son. In case of the death of deceased, the property of accused Suba Singh was not to devolve on the accused appellant but rather it would have gone to brothers of accused Suba Singh who was the owner of property in question. This is also her submission that there was no reason for the accused appellant to have made an extra judicial confession before Chanan Singh (PW4) who is also the first cousin of deceased and was comparatively closer to complainant Swinder Kaur than to accused appellant Harinder Singh. This is also a submission of learned counsel that the whereabouts of dead body of deceased Gurdev Singh were already within the knowledge of police and this has come in the evidence of Chanan Singh (PW4) that he along with Swinder Kaur (PW3) went to the police and informed that the accused had made an extra judicial confession stating that he had killed the deceased with kulhari and burried the dead body near the tube-well and only thereafter, the police had arrested accused appellant Harinder Singh and then had visited the spot and recovered the dead body. This is further submitted by learned counsel that though an application was moved to the Deputy Commissioner for deputing an Executive Magistrate but even prior to that, Naib Tehsildar Amarjit Singh, Executive Magistrate, had already come in picture. That apart, learned counsel contended Crl.Appeal No.751-DB of 2005 6 that Daljit Kaur was never arrayed as an accused and Suba Singh was found innocent in enquiry by the police, therefore, no challan was laid against him. This is her further submission that the couple namely Suba Singh and his wife Daljit Kaur were staying 20-25 kms away in the township of Ajnala and they were not the frequent visitors to the village where this occurrence took place, and moreover, at the time of occurrence, accused Suba Singh was aged about 70-75 years and was also a diabetic patient. Learned counsel also submitted that though the recovery of the dead body was believed by the trial court but recovery of weapon of offence i.e. kulhari from an open place has been disbelieved. Thus, according to learned counsel, in the attending circumstances, though there may be a strong suspicion towards the accused but that suspicion cannot take the place of proof. Learned counsel also submitted that assuming for the sake of arguments that the recovery of dead body was effected at the instance of the accused, but for that reason alone he cannot be said to have committed the offence of murder and at the most it would be an offence under Section 201 IPC. Learned counsel further submitted that the judgment of acquittal recorded in the complaint case in respect of accused Suba Singh and Daljit Kaur, is a well founded judgment which need not be interfered in the absence of a glaring perversity. She placed reliance on the judgment reported as Chhotu Singh vs. State of Rajasthan, 1999 SCC (Crl.) 461 in support of her submissions. Learned counsel for the appellant also submitted that even if the extra judicial confession of the accused is to be believed, it makes out only a case of sudden fight and causing one blow after picking up an agricultural implement from the nearby place and it would only amount to committing the offence of culpable homicide not amounting to murder. On the other hand, learned Additional Advocate General, Punjab, Crl.Appeal No.751-DB of 2005 7 submitted that the extra judicial confession made by the accused before Chanan Singh (PW4) inspires confidence for the reason that soon after the recording of statement of Swinder Kaur (PW3), the police had reached the place where the accused was suspected to be hiding and without loss of time, he was taken into custody, interrogated and then the recovery was effected. Learned State counsel also submitted that there was a motive to commit the offence as it has come in the evidence of Swinder Kaur (PW3) that accused Harinder Singh had been helping Suba Singh in cultivation and he wanted to become the owner of his estate. Learned State counsel further submitted that though there was an extra judicial confession made before witness Chanan Singh (PW4), but it has not come in his evidence that the accused had given the exact location where the dead body lay burried, and this was a general statement that it was burried near a tube-well. She further submitted that there was a videography and photography of the body when it was exhumed from the place of recovery. We have carefully considered the rival contentions and perused the record. The prosecution case is mainly based on the testimony of Swinder Kaur (PW3) mother of the deceased who is also the complainant herein and Chanan Singh (PW4), before whom the extra judicial confession was made by the accused. From the evidence of Swinder Kaur (PW3), it appears that accused Harinder Singh was arrested from Ajnala from the house of co-accused Suba Singh. It has also come in her examination in chief which has not stood demolished in cross examination that in the month of September, 2004, deceased Gurdev Singh had gone to this witness and told her that accused Harinder Singh after taking liquor had been quarreling with Crl.Appeal No.751-DB of 2005 8 him and also harboured grudges that he and not the deceased was to become the owner of estate of Suba Singh. Deceased had also told his complainant mother that though he was adopted by Suba Singh and Daljit Kaur, but gradually they were turning indifferent towards him in their behavour. Soon thereafter on 15.10.2004, just within a month, accused Harinder Singh had come to her and informed that deceased Gurdev Singh had gone somewhere on motor cycle with some boy and had since not come back. Complainant Swinder Kaur had then gone to the house of Suba Singh and Daljit Kaur, who also had confirmed that Gurdev Singh had gone somewhere with some boy and he was likely to come back. This has also come in the evidence of complainant that accused Suba Singh owned 11 acres of land which was being cultivated by deceased Gurdev Singh. Thus, as deceased Gurdev Singh had been adopted at the age of 3 years by accused Suba Singh and his wife Daljit Kaur, who were issueless, the deceased would have succeeded to their estate. Though an argument has been advanced by learned counsel for the appellant that the property of accused Suba Singh stood in his name and it would have gone to his brothers in the absence of deceased Gurdev Singh and not Harinder Singh, but learned counsel could not substantiate her submission from the record of this case as to whether any brother or any other legal heir from his parent side had ever laid a claim over the property of Suba Singh. As regards the extra judicial confession, there is a graphic description by putting the events in chronological order and thus, it inspires the confidence of this Court. It has come in the evidence of Swinder Kaur (PW3) that on 31.10.2004, at about 11.00 a.m. Chanan Singh (PW4) son of Swinder Singh elder brother of her husband came to her and told that Harinder Singh had made an extra judicial confession that deceased Gurdev Singh used Crl.Appeal No.751-DB of 2005 9 to quarrel with him, therefore, he had killed him with kulhari and burried the dead body in the fields of Suba Singh. Thereafter, Swinder Kaur (PW3) being accompanied by Chanan Singh (PW4) set out for Police Station Ajnala, but on the way, they met the police party and the complainant gave her statement (Ex.PC) to SI Inderjit Singh. Soon thereafter, police went directly to the house of accused Suba Singh at Ajnala from where accused appellant Harinder Singh was arrested. The accused was then taken to the fields of Suba Singh wherefrom he got the dead body recovered from the exact location pointed out by him. The weapon of offence being kulhari was also recovered. Though, witness Chanan Singh (PW4) is the son of elder brother of husband of Swinder Kaur (PW3), who also happened to be related to her as nephew and she as his mother's sister, but the sequence of events narrated by both the witnesses do not suggest that there was an intention to falsely implicate accused Harinder Singh at the hands of Chanan Singh (PW4), who is a common relative being the first cousin of both accused Harinder Singh and deceased Gurdev Singh. She has reiterated her statement given to the police in the cross examination and we find nothing in the statement to be at variance with the prosecution case. The extra judicial confession was made by accused appellant Harinder Singh before his first cousin Chanan Singh (PW4), who in turn conveyed it to complainant Swinder Kaur, the mother of deceased, and then to the police, leading to discovery and recovery of the dead body on pointing out by the accused. Further, the exhuming of dead body was witnessed only by official witnesses, thus, there was no infirmity in applying the provisions of Section 27 of the Evidence Act. Moreover, this has come in the evidence of Chanan Singh (PW4) that the dead body was burried at a Crl.Appeal No.751-DB of 2005 10 particular place in a huge chunk of 11 acres land belonging to accused Suba Singh, and it has not come in the prosecution evidence that both these witnesses namely complainant Swinder Kaur (PW3) and Chanan Singh (PW4) had not visited the field of Suba Singh before going to the police station. Chanan Singh (PW4) has supported the testimony of Swinder Kaur (PW3) in material particulars. He has reiterated that his statement was recorded before the recovery of the dead body and not thereafter. His statement was also recorded in respect of the identification of dead body. He has stated that the deceased had a quarrel with accused appellant Harinder Singh at the tube- well. As per statement of SI Gurmukh Singh (PW5), the accused had made a disclosure statement vide Ex.PT, and only thereafter he was directed to request for a Magistrate from Amritsar. He had met Deputy Commissioner, Amritsar, and hence, Naib Tehsildar Amarjit Singh had been deputed for the job. He had presented the application written by SI Inderjit Singh (PW10) to the Deputy Commissioner in this regard. According to him, he along with the Naib Tehsildar reached the place of recovery at 4.00 p.m., which was an open place. Further, the recovery of dead body was photographed by HC Tarvinder Singh (PW6) who has also proved the photographs and its negatives. The Photographer has stated that he had remained on the spot for about 4-5 hours. C. Ravinder Singh (PW7) had made a videography of the recovery and has proved the cassette. He has stated that the police party had stayed there for about 5 hours. SI Inderjit Singh (PW10) has supported the testimony of SI Gurmukh Singh (PW5). According to him, in the presence of Naib Tehsildar Amarjit Singh, accused Harinder Singh had dug out the dead body from the place disclosed by him and it was identified by Karam Singh and Chanan Singh. He has denied the defence suggestion that he had received any prior Crl.Appeal No.751-DB of 2005 11 information about the dead body. Naib Tehsildar Amarjit Singh (PW11) has stated that he was contacted by the police at 12 noon or 1 p.m. He reached the place of recovery at 4.30 p.m. and remained there at the spot up to 6.00 p.m. Thus, the prosecution case is proved by the preponderance of evidence in the form of testimonies of Swinder Kaur (PW3) and Chanan Singh (PW4), apart from the evidence of the official witnesses, coupled with the recovery of dead body, FIR and medical evidence, as discussed herein above. As regards the connected criminal appeal filed against the acquittal of accused Suba Singh and Daljit Kaur, it has been submitted that Daljit Kaur was not even made an accused in this case and during the course of investigation, Suba Singh was found innocent, therefore, the police did not file a challan against him. On a complaint, when these accused persons were tried, the offence was finally not found to be proved. This has also come in the evidence of Swinder Kaur (PW3) that Suba Singh being a serious diabetic patient with bypass surgery was staying away in the township of Ajnala with his wife Daljit Kaur. He had no motive to commit the offence because he had already adopted the deceased. Even if the accused was allegedly arrested from his place but that is not a ground to hold that he was also a partner in the commission of offence. Moreover accused Harinder Singh was also related to him as his wife's nephew, thus, Suba Singh could not have stopped him from visiting his place. Further, there is nothing on record to say that the accused had also informed him about the incident, except the evidence of Chanan Singh to whom the accused was alleged to have stated that the offence was committed in consultation with Suba Singh and Daljit Kaur. Even in the statement of accused persons under Section 313 Cr.P.C., it has not come that the deceased was unwanted at their place and rather, this is mentioned that the deceased alone was cultivating their land. As such, there was no motive on the part of these accused persons to have committed the offence of murder of deceased Gurdev Singh. That apart, there was also no recovery at the instance of these accused persons. Now coming to the submission of learned counsel for appellant that Crl.Appeal No.751-DB of 2005 12 even if the confessional statement of accused Harinder Singh is believed, he had caused only a solitary blow which is also supported by the medical evidence. Moreover, there is a mention about quarrel between the accused and the deceased before the act of causing injury, thus, the injury was caused all of sudden and not in a pre-planned manner which would only make out a case of culpable homicide not amounting to murder. We have carefully considered the submissions of learned counsel for appellant and in the obtaining circumstances on a proper re- appreciation of evidence, we are of the view that though this is a case of single blow but there was the element of intention in causing the death of deceased. Number of injury is not always relevant to determine the intention behind commission of offence. This Court has to see the nature of injury, part of body where it has been caused and also the weapon of offence. This is establish from medical evidence that the nature of injury was a chopped incised wound of 20 x 13.5 cm on the front of forehead as well as the nose and both eyes. Underlying bones were found to be fractured into multiple pieces. Further, the fractured fragments were also noticed lying in the opened up cranium. Moreover, the injury was also found to be sufficient to cause death in the ordinary course of nature. Hon'ble the Apex Court has taken a similar view in a judgment reported in 2000(12) SCC 546 (State of Rajasthan versus Dhool Singh). Similarly, in the case reported in 2002 (6) SCC 506 (Dhupa Chamar versus State of Bihar), Hon'ble the Apex Court has held that in view of nature of injuries whereby important blood vessels were raptured and the doctor opined that the death was caused due to rapture of great veins, it can be reasonably inferred that such a solitary injury inflicted upon