Crl. Appeal No. 247-DB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 247-DB of 2000 Date of Decision : March 05, 2009 Harjinder Singh @ Jinder and another .... Appellants Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Ms. Baljit K. Mann, Advocate for the appellants. Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : Harjinder Singh @ Jinder and Jaswinderpal @ Bindri have instituted this appeal challenging judgment and order dated 17.05.2000 of learned Additional Sessions Judge, Nawanshahr thereby convicting appellant Jaswinderpal @ Bindri under Section 302 of the Indian Penal Code (in short – the IPC) and convicting Harjinder Singh @ Jinder under Section 302 read with Section 34 IPC and sentencing them to undergo life imprisonment and to pay fine of Rs.5,000/- each and in default thereof, to undergo further rigorous imprisonment for one year. Prosecution case in brief is as under :- On 22.03.1998 at 11:45 A.M., complainant Lal Chand resident Crl. Appeal No. 247-DB of 2000 2 of Talwandi Jattan made statement Ex.P-E in Police Station Behram to Joginder Paul SI/SHO of the said Police Station stating that his elder brother Raj Kumar (since deceased) worked as Carpenter at the shop of Prem Paul son of Sadhu Ram. On 21.03.1998, the complainant and the deceased took meals together in the evening and thereafter the deceased went out at about 08:30 P.M. to answer the call of nature. However, Raj Kumar did not return home. Their father Satnam Singh, in the meanwhile, returned from his job and went to bed after taking meals. The complainant searched for his brother in the Village and not finding him, informed his uncle Amarjit Singh. Then both of them searched for Raj Kumar, but in vain. On 22.03.1998, in the morning, complainant's father Satnam Singh went to the motor in the field at about 07:30 A.M. and saw the dead body of Raj Kumar lying in the wheat field near eucalyptus trees. The deceased had been murdered with sharp edged weapon by some unknown persons. On coming to know of it, the complainant also went there. It was also stated that they never had any dispute with anybody and they did not suspect anybody in the murder of Raj Kumar. Leaving Satnam Singh and Amarjit Singh at the spot, the complainant along with Kewal Singh Sarpanch went to the Police Station and made the aforesaid statement. On its basis, FIR Ex.P-E/2 was registered in Police Station Banga. SI Joginder Paul along with other police officials went to the spot and prepared injury report Ex.P-C and inquest report Ex.P-D of the deceased. The spot was got photographed. Blood stained earth was lifted from the spot in sealed parcel vide memo Ex.P-M. A wrench lying underneath right shoulder of the deceased and a chappal lying near the dead body were seized vide memo Ex.P-N. Mould of left foot of the culprit was also lifted from the spot vide memo Ex.P-O. Rough site plan Ex.P-P of the place of occurrence was also prepared. Statements of witnesses were recorded. Dead body was sent for autopsy with request Ex.P-A. Dr.S.C.Dhir vide endorsement Ex.P-A/1 marked the police request Ex.P-A Crl. Appeal No. 247-DB of 2000 3 for autopsy to Dr. Manohar Lal. Accordingly, Dr. Manohar Lal conducted post-mortem examination and found eight incised wounds on the dead body. Cause of death was opined to be shock due to bleeding on account of injuries nos.2 and 6 individually or collectively, which were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem. Injuries no.2 and 6 are reproduced as under :- “2. Incised wound 15 cm x 2 cm over the right side of scalp oblique anterior end 10 cm from midline and 6 cm above the right eye brow. It ran backwards and medially covered with clotted blood underlying parietal bone was cut. On opening the skull, the membranes of the brain corresponding to the wound are cut and there was a cut of the size of 8 cm x 1 cm x 2 cm deep over the right parietal lobe of the brain, blood was present in the vicinity of the wound. 6. Incised wound 9 cm x 2 cm over the front of left side of neck its anterior end (right end) was over the right half of front of neck 3 cm from midline & 6 cm above the clavicle. It ran towards the left side and slightly upwards. Underlying thyroid cartilage, left stern mastoid muscle, left common carotid artery, jugular vainest phagus and nerves were cut. Clotted blood was present in the vicinity of wound.” Probable duration between injuries and death was instantaneous and between death and post-mortem examination 12 to 24 Crl. Appeal No. 247-DB of 2000 4 hours. Blood stained clothes of the deceased along with other belongings were seized vide memo Ex.P-Q. On 24.03.1998, Bimla (mother of the deceased) made statement to the police that on 22.03.1998, she along with her sons Raj Kumar deceased and Lal Chand complainant and daughters was present in the house when at about 08:30 P.M., their neighbour Jaswinderpal @ Bindri accused came there and took with him Raj Kumar for stroll. However, Raj Kumar did not return home. Lal Chand and Amarjit Singh searched for Raj Kumar, but could not find him. Next morning, dead body of Raj Kumar was found lying in the wheat field having injuries with sharp edged weapon. Bimla was sure that her son Raj Kumar was murdered by Jaswinderpal @ Bindri accused and his sister-in-law because sometime ago, his sister-in-law Charanjit Kaur was showing something written on cardboard to Raj Kumar and somebody else saw them and told Jaswinderpal @ Bindri and his mother about it and there was quarrel over it. PW Jaswinder Singh Sarpanch of Village Anokharwal also made statement to the police that on 23.03.1998 at about 08:00 P.M., both the accused had come to his house. They were perturbed. They told this witness that the deceased Raj Kumar was misbehaving with sister-in-law of accused Jaswinderpal and did not desist from doing so inspite of being asked and consequently on 21.03.1998 at about 08:30 P.M., Raj Kumar was called from his house by them and taken to their motor and in a corner of wheat crop, Jaswinderpal accused inflicted datar blows to Raj Kumar, who died at the spot. Left foot chappal of Harjinder accused was left at the spot and could not be traced out due to darkness and therefore, Harjinder also threw his right foot chappal near the wheat field, whereas Jaswinderpal accused after cleaning the blood from the datar, threw it in deserted well of Karnail Singh. Both the accused pleaded before PW Jaswinder Singh to produce them before the police because PW Jaswinder Singh was Sarpanch of his village and was also Chairman of Market Committee Banga and was also President of Youth Akali Dal, Crl. Appeal No. 247-DB of 2000 5 Nawanshahr. PW Jaswinder Singh asked both the accused to come to him next morning and in the meantime, he would talk with the police officers and would produce both the accused before the police. However, the accused did not come to him next morning i.e. on 24.03.1998. On 01.04.1998, both the accused were arrested. Accused Harjinder Singh, after making confessional-cum-disclosure statement Ex.P- F, got recovered a chappal vide memo Ex.P-J. Similarly, accused Jaswinderpal, after making disclosure statement Ex.P-G, got recovered a datar vide memo Ex.P-H. Sketch of datar is Ex.P-H/1. Rough site plan Ex.P-S of place of recovery of datar was also prepared. Statements of witnesses were recorded. On 02.04.1998, specimen moulds of left foot of Harjinder Singh accused were taken before Naib Tehsildaar/Executive Magistrate Jagjit Singh vide memo Ex.P-Y. Vide Forensic Science Laboratory (FSL) Report Ex.P-Z, left foot mould lifted from the spot was of the left foot of accused Harjinder Singh, when compared with his specimen left foot mould. Vide FSL Report Ex.P-BB/1, human blood was found on blood stained earth and clothes and belongings of the deceased except kara and ring. On completion of investigation, both the accused were sent for trial. Charge under Section 302 IPC against Jaswinderpal accused and under Section 302 read with Section 34 IPC against Harjinder Singh accused was framed. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined 11 witnesses. Dr. S.C.Dhir (PW-1) stated that he had marked police request Ex.P-A vide his endorsement Ex.P-A/1 to Dr. Manohar Lal for post-mortem examination of the deceased. Dr. Manohar Lal (PW-2) stated about post-mortem examination of the deceased conducted by him. Complainant Lal Chand (PW-3) (brother of the deceased) broadly stated as per averments in the FIR narrated herein above. Jaswinder Singh (PW-4) stated that both the accused Crl. Appeal No. 247-DB of 2000 6 separately made extra-judicial confession before him. Bimla (PW-5) (mother of the deceased) stated that accused Jaswinderpal had taken the deceased with him and also stated about the motive. Shibu Ram (PW-6) stated about disclosure statements made by both the accused and recovery of chappal at the instance of Harjinder Singh accused and recovery of datar at the instance of Jaswinderpal accused. Ram Kishan Photographer (PW-7) stated that he had taken photographs of the dead body at the spot. Constable Baldev Singh (PW-8) being formal witness tendered his affidavit Ex.P-L in evidence. Inspector Joginder Pal (PW-9) stated about investigation of the case conducted by him. HC Kashmir Singh (PW-10) stated that he along with Constable Harmesh Kumar got conducted post- mortem examination. Bhupinder Kaur (PW-11), Reader to Tehsildaar, proved documents of taking specimen left foot moulds of accused Harjinder. The accused in their examination under Section 313 of the Code of Criminal Procedure (in short – the Cr.P.C.) denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They alleged that they have been falsely implicated at the instance of Mohan Lal MLA, a relative of the deceased, after detaining them in police custody for many days. No evidence was led by the accused in their defence. We have heard learned counsel for the parties and examined the case file with their assistance. It is a case of blind murder. The prosecution case is based on circumstantial evidence. In the case of circumstantial evidence, following tests are required to be satisfied to establish the guilt of the accused :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established – Circumstances concerned “must” or “should” and not “may be” established – There is legal Crl. Appeal No. 247-DB of 2000 7 distinction between “may be proved” and must be or should be proved. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the instant case, prosecution evidence does not satisfy the aforesaid requirements. There are so many infirmities in the prosecution case. Prosecution evidence is not credible at all. In a case of circumstantial evidence, motive plays important role, but in the instant case, no motive has been proved. In the FIR lodged by brother of the deceased, it was specifically mentioned that they i.e. complainant party never had any dispute with anybody nor they suspected anybody in the murder of Raj Kumar. Thus, motive was specifically excluded in the FIR. However, after two days of the discovery of the dead body, mother of the deceased for the first time came out with the motive that sometime before the occurrence, Charanjit Kaur, sister-in-law of the accused Jaswinderpal, was showing something written on a cardboard to Raj Kumar deceased and somebody else saw them and informed Jaswinderpal accused and his mother and there was some quarrel over it. However, no such motive was stated in the FIR or Crl. Appeal No. 247-DB of 2000 8 even during inquest proceedings in the statements of father and uncle of the deceased. Moreover, there is no evidence regarding the alleged motive except the statement of Bimla (PW-5). Even complainant Lal Chand, while appearing as PW-3, did not state about the said motive. Learned State counsel contended that such motive of immoral activity is ordinarily concealed. However, such motive may be concealed from other persons, but not from the close family members. The statement of Bimla (PW-5) (mother of the deceased) regarding the alleged motive does not inspire confidence at all and she is not even corroborated by her son Lal Chand complainant (PW-3). The said motive was also disclosed for the first time two days after the discovery of the dead body. The motive is thus not proved. Bimla (PW-5) has also made statement that Jaswinderpal accused had taken the deceased with him. However, this evidence of last seen of Jaswinderpal accused with the deceased is also completely unreliable. According to FIR, the deceased had himself gone alone to answer the call of the nature, as stated by complainant Lal Chand even in the witness-box. Bimla, however, stated that Jaswinderpal accused had taken the deceased with him. The statement of Bimla to this effect is completely contradictory to the statement of complainant Lal Chad as well as to the version contained in the FIR, which is the first version. Moreover, Bimla, for the first time, stated about this fact two days after the discovery of the dead body. She tried to cover up the delay by deposing that on seeing the dead body of her son Raj Kumar, she became unconscious and regained consciousness after 2-3 days. However, no such version was stated by her in her statement Ex.D-B made to the police under Section 161 Cr.P.C. during investigation. Even otherwise, she would not have remained unconscious for 2-3 days without any medical treatment, for which there is not even an allegation. Bimla also stated that all of them were sitting in the house when Jaswinderpal accused took the deceased with him. Had it been so, Lal Crl. Appeal No. 247-DB of 2000 9 Chand (brother of the deceased) would have mentioned this fact in the FIR itself. However, Lal Chand stated in the FIR that the deceased had gone alone on his own to answer the call of nature. Even in the witness-box, Lal Chand repeated the same version and did not state that Jaswinderpal accused had taken the deceased with him, although according to statement Ex.D-B made by Bimla to the police, Lal Chand was also present when Jaswinderpal accused allegedly took the deceased with him. Moreover, no suspicion was expressed in the FIR against Jaswinderpal accused. In addition to it, if Jaswinderpal accused had taken the deceased with him, the first thing that the complainant party would have done to search the deceased when he did not return home, was to have gone to the house of Jaswinderpal accused, but it was not done. There is no reason why the deceased was not searched at the house of Jaswinderpal accused and why the said accused was not named in the FIR. Next piece of evidence relied on by the prosecution is regarding extra-judicial confession made by both the accused before PW-4 Jaswinder Singh. It is correct that Jaswinder Singh was Sarpanch of his village and was also Chairman of Market Committee and also President of District Youth Akali Dal, Nawanshahr, which was the ruling party in Punjab at that time and therefore, he was a respectable person. However, both the accused as well as the deceased belong to Village Talwandi Jattan, whereas PW Jaswinder Singh is of a different Village Anokharwal, about six kilometers from the village of the accused. In these circumstances, the accused were not likely to go to this witness to make extra-judicial confession. Moreover, according to the statement Ex.D-A made by PW Jaswinder Singh to the police during investigation, both the accused had made joint extra-judicial confession, but in the witness-box, PW Jaswinder Singh made improvement and stated that both the accused separately made the confession. The witness was duly confronted with his statement Ex.D-A about this improvement made by him in the witness-box. Moreover, PW Crl. Appeal No. 247-DB of 2000 10 Jaswinder Singh did not inform anybody about the alleged confession made to him on 23.03.1998 and allowed the accused to go home asking them to come next morning. PW Jaswinder Singh did not inform the police nor informed the complainant party nor immediately produced the accused before the police. Jaswinder Singh also stated that he used to maintain a notebook of the visitors and used to make entries in the said notebook daily, but he did not make entry of the visit of the accused to him on 23.03.1998. The witness could not give any reason for this omission. For these reasons, taking an overall view, the statement of Jaswinder Singh (PW-4) regarding extra-judicial confession allegedly made to him by the accused, does not inspire confidence and does not appear to be credible so as to indict the accused of a serious offence like murder. Prosecution evidence regarding recovery of chappal at the instance of Harjinder Singh accused and recovery of datar at the instance of Jaswinderpal accused is also not credible. Jaswinder Singh (PW-4) had in his statement Ex.D-A made to the police on 24.03.1998 disclosed the place where the chappal and the datar were lying. Consequently, disclosure statements about the same made by the two accused on 01.04.1998 did not disclose any new fact and therefore, the said disclosure statements cannot be relied on. The fact as to where the chappal and datar were lying was already known to the police in view of statement dated 24.03.1998 of Jaswinder Singh (PW-4) Ex.D-A and therefore, disclosure statements allegedly made eight days thereafter by the accused cannot be used to prove recovery of the chappal and the datar at the instance of the accused persons as circumstantial evidence of their culpability. The prosecution also allegedly lifted a foot mould from the spot and got it compared with foot mould of accused Harjinder Singh. However, this evidence is also unworthy of credence because admittedly at the time of inquest proceedings, large number of persons had gathered at the spot. Consequently, foot mould of the culprit could not have been lifted from the Crl. Appeal No. 247-DB of 2000 11 spot. Learned counsel for the appellants also pointed out that even on 24.03.1998, police had apprehended sons of Sadhu and Gurdial in connection with this case, as stated by Lal Chand (PW-3) in his cross- examination. It would show that even till 24.03.1998, the present two accused were not being suspected. Learned State counsel contended that Bimla (PW-5) has proved motive as well as the fact that Jaswinderpal accused was last seen with the deceased. However, statement of Bimla on both these aspects is not reliable at all for the reasons already discussed herein before. Similarly, the contention of learned State counsel regarding evidence of extra-judicial confession as per statement of Jaswinder Singh (PW-4) also cannot be accepted for the reasons already noticed herein above. In view of the aforesaid discussion, we have no hesitation in concluding that prosecution has miserably failed to bring home the charge against the appellants beyond reasonable doubt. The prosecution case is highly doubtful and the accused deserve benefit of doubt. Accordingly, the instant appeal is allowed and conviction and sentence of both the appellants are set aside and both the appellants Harjinder Singh @ Jinder and Jaswinderpal @ Bindri are acquitted of the charge against them giving them benefit of doubt. The appellants, if in custody, shall be set at liberty forthwith, if not required in any other case. ( L. N. MITTAL ) JUDGE March 05, 2009 ( MEHTAB SINGH GILL ) monika JUDGE