Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. Murder reference No.3 of 2010 State of Punjab V. Joginder Singh alias Neela son of Jamit Singh resident of Kotkapura, Tehsil and District Faridkot. 2. Criminal Appeal No.696-DB of 2010 Joginder Singh alias Neela son of Jamit Singh resident of Kotkapura, Tehsil and District Kotkapura. V. State of Punjab CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M.JEYAPAUL Present: Mr. N.S.Swaitch, Advocate for the accused-appellant. Mr. H.S.Brar, Addl.A.G. Punjab or the respondent-State. M.Jeyapual,J. Introduction:- Joginder Singh, accused-appellant was convicted for the offence under Section 302 of the Indian Penal Code and was awarded death sentence for the commission of triple murder, subject to confirmation of this Court as per Section 366 of the Code of Criminal Procedure by the Sessions Judge, Faridkot. The Sessions Judge in terms of Section 366 Cr.P.C. submitted the murder reference for confirmation and the accused, Joginder Singh, having Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 2 been aggrieved by the conviction and sentence recorded by the trial Court, preferred the appeal. Prosecution Version 2. (a) PW2 Chhinda Singh was the brother of deceased, Darshan Kaur. Darshan Kaur's husband, Wassan Singh and her son Harpreet Singh are the other two victims in the occurrence. P.W.3 Lakhwinder Kaur is the wife of PW2 Chhinda Singh. ( b ) Darshan Kaur was given in marriage to Wassan Singh of Gurdaspur. Darshan Kaur developed illicit relationship with the accused Joginder Singh when she was residing at Gurdaspur. Thereafter the husband and wife shifted their residence to Kotkapura. The accused continued his relationship with Darshan Kaur even after they shifted to Kotkapura. Darshan Kaur was not a consenting party in the illicit relationship with the accused for sometime before the occurrence. The accused was apprehended by the police on the basis of complaint given by Wassan Singh about a couple of occasions prior to the occurrence and Wassan Singh also caused fracture injury on his leg. Joginder Singh accused was blessed with three daughters and three sons. (c) PW4 Puran Singh who is the resident of Kotkapura was going on a bicycle towards the village Jalaliana for loading the wheat chaff in a tractor-trolly at about 11.30 pm on the day of occurrence. He noticed the accused going inside the house of Darshan Kaur. After finishing his labour work he came back from Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 3 village Jalaliana to Kotkapura at about 3.30 am, the following day morning. At that point of time he noticed the accused washing the blood stained kurta from the water flowing from handpump installed at the “Golden Kanda”. Though he proceeded there to drink water, the accused got perplexed and,therefore, he returned back to his house even without taking water from the handpump. (d) PW2 Chhinda Singh and his wife PW3 Lakhwinder Kaur, residents of the very same village Kotkapura proceeded to meet Darshan Kaur at her house at about 8.30 pm. The outer gate of the house was found opened. The front room in the house was lying locked and a foul smell emanated from the front room. They peeped through the hole of the window and found to their surprise that Darshan Kaur, Wassan Singh and their son Harpreet Singh were lying dead on the cots. The blood was found oozing underneath their cots. The dead body of Darshan Kaur, the sister of PW2 Chhinda Singh was found naked. A piece of cloth was lying thrust in the mouth of Wassan Singh, brother-in-law of PW2 Chhinda Singh. (e) PW2 leaving behind PW3 Lakhwinder Kaur at the scene of occurrence, proceeded towards the Police Station but the police met him at Balmiki Chowk, Kotkapura. PW13 Inspector Gurjit Singh recorded the statement Ex.P2 of PW2 Chhinda Singh on 2.7.2008 at 10.30 pm. PW13 Inspector Gurjit Singh sent the aforesaid statement of PW2 Chhinda Singh to the Police Station for registration of the case. The formal FIR Ex.P34 was registered by ASI Jaspal Singh. Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 4 (f) PW13 Inspector Gurjit Singh proceeded along with the complainant and other police officials to the house of Wassan Singh and found that three dead bodies were lying in a room. He secured the presence of a photographer for taking photographs of the scene of occurrence. The lock hanging on the Kunda was broken open. The lock and the kunda were sealed in a parcel and the same were taken into possession in the presence of PW9 SI Jagdish Lal and another witness Kashmir Kaur vide memo Ex.P22. The dog squad was summoned to the spot. As the investigation could not proceed further he stopped the same at 12'O clock at night and on 3.7.2008 he again proceeded to the scene of occurrence along with the other police officials and witnesses. The dead bodies were identified by Mohinder Singh and Veer Singh PWs. He prepared three inquest reports Exs.P36 to Ex.P38 at the spot. All the three dead bodies were despatched to G.G.S. Medical College, Faridkot for post mortem examination through HC Jaswant Singh and Lady Constable Sarabjit Kaur. (g) PW13 Inspector Gurjit Singh recovered blood stained Kulhari vide memo Ex.P24. He also lifted blood samples from the blood found underneath the cots of Darshan Kaur and Wassan Singh and properly parcelled and seized the same vide memo Ex.P23. He also lifted blood stained cots and bed sheets vide memo Ex.P25. A glass and one bottle of liquor were found lying in the adjoining kacha kotha. PW13 Inspector Gurjit Singh recovered finger prints from the glass and bottle with the help of graphite powder and put the said articles in separate wooden boxes, sealed Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 5 the same and took possession thereof vide memo Ex.P26. The voter identity card of Joginder Singh accused was also recovered from near the wall of the house of Wassan Singh vide memo Ex.P27. (h) PW7 Jaswinder Singh is the member of the Mohalla Committee in Kotkapura. When he was present in his house on 3.7.2008 at about 9.00 pm, accused Joginder Singh appeared before him and gave a confessional statement to the effect that he murdered Wassan Singh, Darshan Kaur and their son Harpreet Singh with kulhari in their house. The accused made a request to produce him before the police. PW7 Jaswinder Singh informed the accused that he would have a talk with the police. The accused left the place with a promise that he would visit his house the next day morning. (i ) PW5 Dr. Shilekh Mittal along with Dr. Ram Gopal conducted post mortem examination on the dead body of Wassan Singh, on the basis of requisition made by PW13 Inspector Gurjit Singh at about 12.45 pm on 3.7.2008. There was foul smell from the dead body. Maggots were crawling all over the body. Multiple blisters were present all over the bodies. The following injuries were found on the dead body of Wassan Singh: i) A lacerated wound 6x4 cms on the left side of forehead 4 cm above nation, clotted blood was present. ii) A lacerated wound 5 x 3 cms on the left side of forehead 1.5 cm above left eye-brow; clotted blood was Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 6 present. iii) A lacerated wound 4 x 3 cms on the left side of head 2 cm above injury No.1; clotted blood was present. 4. A lacerated wound 5 x 2cms on the left side of head 1 cm above and lateral to injury No.2; clotted blood was present. 5. A lacerated wound 3 x 2 cms on the center of head 2 cm medial to injury No.3; clotted blood was present. On reflection of scalp, left frontal, left parietal and left temporal bones were found depressed. A fissure fracture of left occipital bone was present. They opined that all the injuries were ante mortem in nature. It is further opined that Wassan Singh had died due to the aforesaid five injuries which were sufficient in the ordinary course of nature to cause his death. Blood sample could not be lifted due to decomposition. The probable time of death was about 3 to 4 days earlier to the date of post mortem examination. (j) PW5 Dr.Shilekh Mittal and Dr. Ram Gopal also conducted post mortem examination on the dead body of Harpreet Singh son of Wassan Singh. They found a lacerated wound 5 x 3 cms on the left side of head just above left ear pine. On reflection of scalp, a depressed fracture of left parietal and left temporal region of head and a fissure fracture of occipital bone were found. The said injuries were found to be ante mortem in nature. They opined that Harpreet Singh had died due to the aforesaid injuries which were Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 7 sufficient to cause death in the ordinary course of nature. (k) PW15 Dr. A.S.Thind conducted post mortem examination on the dead of Darshan Kaur on the same day. Foul smell emanated from the dead body. Maggots were crawling all over her body. Hairs could be easily pulled off. He found a lacerated wound 5 x 4 cms on the left side of the forehead just above the eye brow and another lacerated wound 2 x 1 cm on the forehead just above the nasal. On reflection of scalp a depressed fracture of left frontal and left parietal bones were found. A facial fracture of the left temporal bone was also noticed. All the injuries were found ante mortem in nature. She opined that Darshan Kaur died due to those two injuries which were sufficient to cause death in the ordinary course of nature. ExP4 is the post mortem certificate of Wassan Singh,deceased, Ex.P6 is the post mortem certificate of Harpreet Singh, deceased and Ex.P8 is the post mortem certificate of Darshan Kaur,deceased. (l) PW 13 Inspector Gurjit Singh raided the house of accused Joginder Singh on 3.7.2008 and 4.7.2008 but he was not present at those point of time. With the association of PW2 Chhinda Singh, PW13 Inspector Gurjit Singh arrested the accused near a gas agency at Kotkapura. (m) On 6.7.2008, the accused gave a disclosure statement to the effect that he kept concealed blood stained kurta and pajama with key of the lock in its pocket underneath the iron petti lying in a room of his house. The disclosure statement Ex.P43 was recorded by PW13 Inspector Gurjit Singh in the presence of Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 8 PW14 ASI Pawan Kumar, and PW2 Chhinda Singh. On the basis of the disclosure statement, the blood stained Kurta-Pajama Ex.P44 containing the key of the lock of the room of the the house of Wassan Singh were recovered from the house of the accused. The Kulhari MO2, lock MO3, the belongings of the deceased Darshan Kaur MO4 to MO6, the blood stained kurta pajama of the accused Joginder Singh MO7 and MO8, belongings of the deceased Harpreet Singh MO9 and MO10, belongings of the deceased Wassan Singh MO11 and MO12, glass MO13,bottle MO14, two blood parcels MO15 and MO16, three cots MO17 to MO19, three bed sheets MO 20 to MO22 and one mattress MO23 were produced in sealed parcels with seals intact before the trial Court during the course of trial. The accused was remanded to judicial custody. Having examined all the witnesses in this case, the accused was charge sheeted. Response of the accused under Section 313 Cr.P.C.:- 3. The accused submitted that he did not know anything about the occurrence. Even the illicit relation he allegedly developed with Darshan Kaur was also disputed by him. It is his version that he was innocent, but he has been falsely implicated in the case. Trial Court's findings:- 4. The prosecution could establish the illicit relationship between the accused and Darshan Kaur,deceased. Thus, the prosecution could prove the motive behind the murder. An extra judicial confession was also given voluntarily by the accused to Jaswinder Singh PW7. There was a disclosure statement given by Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 9 the accused which led to the recovery of the blood stained clothes from his house. Finger prints of the accused as per the finger print expert opinion were found on the liquor bottle and glass, recovered from the scene of occurrence. The aforesaid circumstances projected by the prosecution would unerringly point to the guilt of the accused. Having found thus, the trial Court rendered verdict of conviction. Submissions of Shri N.S.Swaitch, learned Counsel for the accused: 5. A single person in a drunken condition could not murder three persons, without sustaining injury on him. PW2 Chhinda Singh has completely damaged the version of the prosecution during the course of cross-examination. He has deposed that lock was broken open by PW13 Inspector Gurjit Singh and the other police officials only in the presence of the accused. There is no direct evidence to bring home the guilt to the accused. Surprisingly the inquest reports which were prepared would disclose that only unknown person committed the offence. The evidence of PW4 Puran Singh and PW7 Jaswinder Singh are not at all natural and, therefore, their evidence does not inspire confidence. The non-examination of independent witness to the recovery of material objects goes to the root of the case. The Investigating Officer failed to lift any finger print from the lock which was allegedly broken open. The kurta pajama alleged to have been recovered from his house at his instance were not sent for chemical examination. The circumstantial evidence put forth by the prosecution is found to be weak. The accused was 49 years old Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 10 at the time when the occurrence took place. He is blessed with six children. The prosecution completely relied upon only the circumstantial pieces of evidence. Just because a triple murder has been committed the case does not automatically fall under the rarest of rare category of cases. Therefore, it is his alternative submission that in case the Court comes to the conclusion that it was only the accused who committed the triple murder, he may be sentenced with life imprisonment. Submissions made by Shri H.S.Brar,Addl.Advocate General,Punjab:- 6. All the circumstances have been clinchingly established by the prosecution. There is no reason to reject the evidence of PW4 Puran Singh and PW7 Jaswinder Singh as contended by the learned Counsel for the accused. Motive has been established. The accused had been spotted by PW4 Puran Singh, while he entered into the house of the deceased and also at the time when he washed the clothes after the occurrence was over. The extra judicial confession given to PW7 Jaswinder Singh inspires confidence. The recovery of voter identity card of the accused, the finger prints of the accused found on the glass tumbler and the liquor bottle and the recovery of kurta and pajama with key of the lock would go to establish that it was only the accused who committed the triple murder. Proof of murder on circumstantial evidence: 7. There is no direct evidence to establish the case of triple murder. The entire case of the prosecution rests on the circumstantial evidence put forth by the prosecution. The following conditions must be fulfilled before a case against the accused can Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 11 be said to be fully established by circumstantial evidence: (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (ii) The facts so established should be consistent only with the hypotheses of the guilt of the accused; (iii) The circumstances should be of the conclusive nature and tendency. They should exclude every possible hypothesis, except the one to be proved. (iv) There must be a chain of evidence so complete as not to leave reasonable ground for the conclusion consistent with the innocence of the accused. Circumstantial pieces of evidence projected by the prosecution:- 8. (i) There was a motive for the murder; (ii) PW4 Puran Singh spotted the accused entering into the house of deceased Wassan Singh and also when he washed his blood stained kurta; (iii) The accused gave extra judicial confession voluntarily to PW7 Jaswinder Singh; (iv) There was recovery of voter identity card of the accused near the wall of the house of deceased Wassan Singh. Finger prints found on the glass tumbler and liquor bottle recovered tallied with the finger prints of the accused. There was recovery of weapon of offence The blood stained kurta pajama were recovered from the house of the accused on the basis of the disclosure Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 12 statement given by him. (v) The accused was found absconding on both the occasions when raids were conducted by PW13 Inspector Gurjit Singh on the house of the accused. Discussion: first circumstance- Motive: 9. PW2 Chhinda Singh who is the brother of deceased Darshan Kaur and PW3 Lakhwinder Kaur who is the wife of PW2 have categorically deposed before the trial Court that the accused had developed illicit intimacy with Darshan Kaur for quite a long time. Wassan Singh, the husband of Darshan Kaur had gone to the extent of fracturing the leg of the accused, protesting against the relationship he developed with his wife. It is the further version that a criminal case was also lodged as against the accused by Wassan Singh. In our considered opinion the aforesaid aspects established by the prosecution through the evidence of PW2 Chhinda Singh and PW3 Lakhwinder Kaur are sufficient to provide motive for the accused to commit the murder of Wassan Singh. 10. PW2 Chhinda Singh would depose that the illicit relationship was developed by the accused with his sister Darshan Kaur without her consent. But it is the version of PW3 Lakhwinder Kaur that at the initial stage the illicit relationship was developed by the accused with Darshan Kaur with her consent but later on there was such a relationship without the consent of the deceased, Darshan Kaur. The evidence on record would go to show that Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 13 Wassan Singh received as many as five head injuries. The anger of the assailant had been crudely directed against Wassan Singh. Harpreet Singh,deceased, aged about 18 years had received only one head injury, whereas Darshan Kaur,deceased had received two head injuries. The finger prints found on the glass tumbler and the liquor bottle tallied with the finger print of the accused as per finger print expert's opinion. The accused had gained entry into the house without any resistant and committed the murder. The finger prints of the accused found on the glass tumbler and the liquor bottle would go to show that he had consumed liquor in the very house of the deceased. In our considered opinion unless some body had paved way for the access of the accused, he could not have gained entry into the house. It is a common knowledge that no one can develop illicit intimacy with a lady unless the lady is a consenting partner to such a relationship. In all probability the accused should have gained entry into the house only with the active assistance of Darshan Kaur who had admittedly developed illicit intimacy with the accused. We have consciously used the expression “admittedly” for the simple reason that a suggestion was put on the side of the accused to PW2 Chhinda Singh that the accused used to go to the house of Darshan Kaur only with her consent. 11. Unfortunately the prosecution could not unravel the mystery surrendering the provocation for the attack launched by the accused on all the three victims. The aforesaid facts and circumstances lead to the probability that the accused having gained entry into the house with the assistance of Darshan Kaur, leisurely Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 14 took liquor inside the house and committed murder of all the three victims for reasons best known to him only. The motive he had with Wassan Singh as he had assaulted him and caused him leg fracture, had activated the accused to be very aggressive in launching attack as against Wassan Singh. That was the reason why Wassan Singh,deceased, had received as many as five injuries. Darshan Kaur and her son would have been probably murdered to wipe out the evidence that may be projected in a case of murder. At any rate we find that the prosecution could establish beyond reasonable doubt that there had been a motive harboured by the accused to commit murder of atleast one of the victims in this case, namely, Wassan Singh. Of course in a case which fundamentally depend on the circumstantial pieces of evidence, the motive part of the case should be established by the prosecution. But just because motive could not be established, as the motive is sometime totally privis to the person who harboured motive, the case of the prosecution based on circumstantial evidence would not fall to the ground, more especially when the other clinching circumstantial pieces of evidence unerringly established that it was only the accused who committed the cruel act of murder. Second circumstance :- PW4 Puran Singh spotting the accused entering into the house of Darshan Kaur and washing later on his blood stained kurta: 12. It is surprising to us that the prosecution has come out with an unbelievable story that a chance witness PW4 who is closely related to the deceased persons exactly passed through just half an Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 15 hour before mid night and also by 3.30 am, the following day, to witness sequentially both the act of the accused, namely entering into the house of Darshan Kaur and also washing the blood stained kurta after coming out of her house. We find his evidence totally artificial. It does not inspire confidence. As per his version, he had spotted the accused entering into the house of Darshan Kaur, deceased, and washing his blood stained kurta, after coming out of her house, about three days prior to the decomposed dead bodies in the house of Wassan Singh were noticed by the relatives, villagers and the police officials. A normal human being would have definitely enquired as to why a person in the mid of night had chosen to come down to the handpump for washing the blood stained kurta. Such a person who noticed the strange act of a culprit would have at least shared the information with some body. His close relative's house was visited by the accused and having come out of the house he was leisurely washing the blood stained kurta as per his version. He had not thought it fit to inform his relatives. The the names of the labourers who worked with him for loading the wheat chaff in the tractor-trolly could not be recalled by him. Surprisingly no labourer had accompanied him while proceeding to load the chaff in the trolly or while returning after accomplishment of his task. Very strangely PW4 Puran Singh has not whispered anything about the washing of the blood stained kurta in the handpump by the accused, when his statement under Section 161 Cr.P.C. was recorded by PW13 Inspector Gurjit Singh. All the above facts and circumstances would go to show that his evidence is totally unbelievable and Murder reference No.3 of 2010 and Criminal Appeal No.696-DB of 2010 16 untrustworthy. 3 rd circumstance: - extra judicial confession to PW7 Jaswinder Singh:- 13.