Crl.Appeal No.637-DB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.637-DB of 2001 Date of decision:19.3.2010 Balbir 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.T.S.Sangha, Sr.Advocate, with Ms.G.K.Mann, Advocate, for the appellants. Ms.Gurveen H.Singh, Addl.AG, Punjab. ... JORA SINGH, J. Balbir Singh son of Bhag Singh, resident of Village Holl, District Ludhiana, and Major Singh son of Jaswant Singh, resident of Village Payal, District Ludhiana, were tried by the Court of Additional Sessions Judge, Gurdaspur, on the allegation that on the intervening night of 8/9.5.1995 in the area of Village Rangar Nangal, 7 kms from Police Station Rangar Nangal, they have committed the murder of Shangara Singh, aged about 35 years, and Paramjit Singh, aged about 32 years. Vide judgment of conviction and sentence dated 6.10.2001 rendered by Additional Sessions Judge, Gurdaspur, appellants have been convicted under Sections 302/34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine, to further undergo RI for two years, each, under Sections 302/34 IPC. Prosecution story, in brief, is that on 8.5.1995 at about 9.00 PM Crl.Appeal No.637-DB of 2001 2 while Harmohan Singh was present on the roof of his house, then sighted two tractors coming from the side of Rangar Nangal. One of the tractors was `Eicher'. On 9.5.1995 at about 7.00 AM, one Jagir Singh came to his house and reported that one tractor `Eicher' along with thrasher was standing in his (Harmohan Singh) fields. Two dead bodies having injuries on their face and foreheads, were lying in the gunny bags, near the tractor. Draw bar of the tractor stained with blood was also noticed lying near the dead bodies. Harmohan Singh and Jagir Singh had gone to the spot. Two unidentified bodies were found lying near the tractor. On the umbrella, “Gautam Motors Branala” was found written and on one side of thrasher “Grewal Forms Mankoo Repair and Agriculture Works, Barnala Road Pakho Kenchain 1990 Mechanic Bhupinder Singh, Sukhdev Singh, Gurmej Singh, Joginder Singh and Painter Jasdarshan Rampur” was written. Statement was read over and explained to Harmohan Singh, who has signed the same in token of its correctness. In view of the statement dated 9.5.1995 recorded by Inspector/SHO Karaj Singh, formal FIR was registered. Inspector Karaj Singh had gone to the spot. ASI Balwinder Kumar was deputed to visit the control room to enquire about the whereabouts of the owner of the tractor. Two receipts issued by Daljit Singh & Sons Commission Agents, Sathiala, were found lying near the dead bodies. ASI Manohar Singh was deputed to visit the shop of the Commission Agents at Sathiala, to know from where the receipts were issued. Inquest reports were prepared. Blood stained earth was lifted from the spot and taken into police possession vide memo (Ex.PT). Dead bodies were sent to the hospital for postmortem examinations. Crl.Appeal No.637-DB of 2001 3 Tractor along with thrasher was taken into police possession vide separate memo attested by the witnesses. Rough site plan was prepared. After postmortem examination, dead bodies were handed over to the relatives of the deceased for cremation. On 21.6.1995, Hardev Singh had produced both the accused before Inspector Salinder Singh. They were taken into custody and were interrogated. Accused suffered disclosure statements separately. In pursuance of the disclosure statement (Ex.PAA), Balbir Singh got recovered one gold ring, cash amounting to Rs.2140/-, a tractor and a thrashing machine from the specified place. Recovered articles were taken into police possession vide separate memo attested by the witnesses. In pursuance of the disclosure statement (Ex.PCC) suffered by Major Singh, he got recovered one gold ring and Rs.700/- from the specified place. Recovered articles were taken into police possession vide separate memo attested by the witnesses. Case property was deposited with the Incharge of Malkhana. After completion of investigation, challan was presented in the Court. Accused were charged under sections 302 and 404 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined number of witnesses. PW1 Dr. Kulwant Kumar Singh stated that on 9.5.1995, he had conducted postmortem examination on the dead body of one unidentified male person, aged about 35 years, and found the following injuries on his person:- “1. A lacerated wound 2 cm x 1 cm on the lateral side of left eye brow, bone deep. Crl.Appeal No.637-DB of 2001 4 2. A lacerated wound 2 cm x 1 cm on the left side of lower lip, muscle deep. 3. The whole left side of face and left side of forehead was depressed. Bleeding from ear, nose and mouth was present. Eyes were closed. At 5.30 PM on the same day, he had also conducted postmortem examination on the dead body of another unidentified male person, aged about 32 years, and found noticed the following injuries on his person:- “1. A lacerated wound 2 cm x 1 cm on the lateral side of right eye brow, bone deep. 2. The whole right side of face, nose and right side of forehead was depressed and vomit material was coming from mouth.” Injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. Cause of death was due to shock and haemorrhage. PW2 Sushil Kumar stated that he was Reader to SDM, Batala. Application (Ex.PK) was moved. Randhir Singh, Naib Tehsildar, was deputed to do the needful. PW3 Jagir Singh, Patwari, has simply prepared scaled site plan (Ex.PL). PW4 Harmohan Singh is the complainant and his statement is of formal nature. PW5 Fakir Singh stated that he is Ex.Sarpanch of Village Ammo Nangal. On 8.5.1995, he along with Harpal Singh while present Crl.Appeal No.637-DB of 2001 5 near the house of Mohan Singh, resident of Village Ranger Nangal, had seen two tractors at a distance of 2-3 killas towards Viro Nangal side. Four persons were sitting near the tractor after spreading gunny bags. They were requested to thrash their wheat, but they had shown their inability. Two out of those four persons, who were sitting near the tractor, are present in the Court. PW6 Balwinder Singh stated that he along with Makhan Singh was in the area of Baba Bakala to thrash wheat. On 8.5.1995, they were near Mehta Chowk and were going towards Dera Baba Nanak. Near Mehta Chowk, tractor of Shangara Singh was noticed. Shangara Singh was from his village. They were requested to have dinner with him (Shangara Singh at a dhaba. After dinner, they were going towards Batala side, then Balbir Singh was seen on another tractor. After the tractor of Balbir Singh, was tractor of Shangara Singh. Balbir Singh and Major Singh were seen with Shangara Singh. PW7 Hardev Singh, resident of Village Jaito Sarja, stated that Balbir Singh and Major Singh came to his house and made extra judicial confession turn by turn by saying that Shangara Singh and Paramjit Singh were killed by them by giving blows with iron belt and after that they were produced before the police. PW8 Lachhman Singh had identified the dead bodies. PW9 Manjit Singh is the Photographer and stated that on the request of police, he had taken photographs (Ex.P1 to Ex.P7), negatives thereof are (Ex.P8 to Ex.P14). PW10 Constable Gurdev Singh tendered his affidavit (Ex.PM). PW11 MHC Balwinderjit Singh tendered his affidavit (Ex.PN). Crl.Appeal No.637-DB of 2001 6 PW12Inspector Karaj Singh had initially investigated the case in hand. PW13 Inspector Salinder Singh had investigated the case after Inspector Karaj Singh. PW14 A.S.Katari, Additional Sessions Judge, Amritsar, on oath stated that on 22.6.1995, he was serving as JMIC, Batala. Prosecution moved application (Ex.PGG) for arranging test identification parade. Appellants Balbir Singh and Major Singh were also produced in the Court and their statements were recorded. Both the appellants had refused to join test identification parade. Then order (Ex.PJJ) was passed. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. Accused denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that they were falsely implicated. In defence, DW1 Harnek Singh, Panchayat Secretary, appeared with record and stated that resolution dated 12.6.1995 was passed under the signatures of Teja Singh, Sarpanch. DW2 Gurcharan Singh, employee of Post Office, Khanna, stated that telegram, copy of which is Ex.DA, was sent on 3.7.1995. DW3 Jarnail Singh stated that as per record, application dated 13.6.1995 was received from Harbans Kaur wife of Balbir Singh and the same was sent to the DGP, Punjab, Chandigarh. DW4 Teja Singh stated that on 12.6.1995, police from Police Station Rangar Nangal came to Village Holl and had taken Balbir Singh into custody. One tractor along with thrasher was also taken into police possession. Resolution (Ex.DC) was passed by the Panchayat. On Crl.Appeal No.637-DB of 2001 7 21.12.1995, again police came with Balbir Singh and demanded Rs.15,000/-, snatched by Balbir Singh. Rs.15,000/- was collected from the village and an entry was made in the register to this effect. DW5 Kaur Singh stated that on 12.6.1995, police party from Police Station Rangar Nangal, came to Village Payal and Major Singh was taken into police custody. After hearing learned Public Prosecutor for the State and defence counsel for the accused and from the perusal of evidence of the file, the appellants were convicted and sentenced as stated above. Learned counsel for the appellants argued that there is no eye witness. Case is based on circumstantial evidence, but chain of circumstantial evidence is not complete. First circumstance to connect the appellants with the crime is that the deceased were seen last time in their company, but statements of Fakir Singh (PW5) and Balwinder Singh (PW6) inspire no confidence. Fakir Singh is the resident of Village Ammo Nangal. Neither appellants nor the deceased were known to Fakir Singh. As per this witness., only four persons were seen near the house of Mohan Singh. In Court, Fakir Singh stated that two out of above said four persons are the accused present in Court. He has not stated a word as to who were the remaining two persons, who were seen with the accused present in Court. While preparing inquest reports, statement of Fakir Singh was not recorded. Balwinder Singh is the second witness of last seen. He is the resident of Village Patti Sekhwan. He along with Makhan Singh with a tractor attached with thrasher was going from Batala towards Dera Baba Nanak. Near Mehta Chowk, he had seen Shangara Singh near Fauji Dhaba, where they had taken dinner. But Dera Baba Nanak is on the opposite side, Crl.Appeal No.637-DB of 2001 8 whereas Mehta Chowk is on the other side. In case Balwinder Singh and Makhan Singh were going towards Dera Baba Nanak from Batala side, then there was no question to be present near Fauji Dhaba at Mehta Chowk. Statement of Balwinder Singh was recorded on 15.5.1995, whereas occurrence was on the intervening night of 8/9.5.1995. After recovery of dead bodies, Balwinder Singh should approach the police by saying that on 8.5.1995, he had seen Shangara Singh (deceased) in the company of the appellants. After recovery of dead bodies, it is very easy to introduce a witness, like Balwinder Singh, to state that he had seen the deceased in the company of the appellants near Mehta Chowk. Second allegation against the appellants is that they had made extra judicial confession before Hardev Singh (PW7). Hardev Singh is the resident of Village Jaito Sarja. He was not known to the appellants. Appellants were not named in the FIR. Police was not after the appellants. So, appellants had no reason to make extra judicial confession before Hardev Singh. Extra judicial confession is to be made before a person, who has a say in the police department and is in a position to save the accused from torture at the hands of the police. Before the occurrence, appellants had no dispute with the deceased. Deceased were from Barnala District, whereas appellants are from Ludhiana District. There was no reason to commit the crime. Appellants were arrested by the police on 12.6.1995. Telegrams were sent to different authorities. Resolution was passed by the Gram Panchayat and this fact is clear from the statements of DWs, but arrest of the appellants was shown on 21.6.1995 with the allegation that the appellants were produced before the police by Hardev Singh. In pursuance of disclosure statement (Ex.PAA) suffered by appellant Balbir Singh, one gold ring and Rs.2140/- were got recovered by him. Crl.Appeal No.637-DB of 2001 9 Appellant Major Singh, in pursuance of his disclosure statement (Ex.PCC), got recovered one gold ring and Rs.700/-. But recovery of gold ornaments and cash was found to be not genuine one. Evidence qua recovery of gold ornaments and cash was disbelieved by the trial Court. No relative of the deceased came forward to state that gold rings recovered as per disclosure statements are of the deceased. Learned State counsel argued that no doubt case is based on circumstantial evidence but chain of circumstantial evidence is complete. Firstly, there is an evidence of last seen and then, evidence of extra judicial confession. After arrest, application was moved by the prosecution to arrange test identification parade but the appellants refused to participate in the test identification parade. Refusal to participate in the test identification parade, coupled with the statements of Hardev Singh, Fakir Singh and Balwinder Singh, trial Court has rightly opined that appellants are the only persons, who had committed the crime. Undisputedly, there is no eye witness. It is a case of blind murder. Case is based on circumstantial evidence. When case is based on circumstantial evidence, then motive assumes importance. Shangara Singh, deceased, was the resident of Village Patti Sekhwan, District Barnala. Paramjit Singh, deceased, was his servant. Shangara Singh was owning a tractor and during rabi season, he used to visit different districts to thrash wheat against payment. Shangara Singh and Paramjit Singh on a tractor attached with thrasher had gone towards Batala side. This fact is clear from the statement of Lachhman Singh, who is the resident of Patti Sekhwan. Lachhman Singh stated that Shangara Singh and his servant Paramjit Singh had gone to thrash wheat. On Crl.Appeal No.637-DB of 2001 10 9.5.1995, information was received from the police regarding murder of Shangara Singh and Paramjit Singh. Then he along with his nephew Manjit Singh, Jarnail Singh, father of Shangara Singh, and Bhag Singh, father of Paramjit Singh, had gone to Police Station Rangar Nangal. Dead bodies were identified by them. No suggestion was put to Lachhman Singh that Shangara Singh and Paramjit Singh with a tractor and thrasher had not gone towards the side of Police Station Ranger Nangal to thrash wheat against payment. Fakir Singh (PW5) stated that on 8.5.1995, he had seen two tractors at a distance of 2-3 killas towards Viro Nangal side from his village. Four persons were seen while sitting near the tractor. He had requested them to thrash his wheat but they replied that they had no time. Teja Singh (DW4) is from the village of appellant Balbir Singh. He stated on oath that Balbir Singh had a thrashing machine and a tractor and he (Balbir Singh) used to visit different districts to thrash wheat. Balbir Singh (PW6 ) is the resident of Village Patti Sekhwan, and stated that Shangara Singh (deceased) on a tractor attached with thrasher used to thrash wheat in the area of Batala. He along with Makhan Singh had also gone towards that area to thrash wheat against payment. No suggestion was put to Balwinder Singh that deceased were not owning a tractor and with a tractor attached with thrasher were not in the area of Batala to thrash wheat against payment. Tractor attached with thrasher of Shangara Singh was recovered from the spot, where dead bodies were lying. So from the evidence on the file, one thing is clear that the deceased on a tractor attached with thrasher had gone towards Batala side to thrash wheat against payment. Appellant Balbir Singh with a tractor attached with Crl.Appeal No.637-DB of 2001 11 thrasher also used to visit different districts to thrash wheat against payment. Meaning thereby, deceased as well as appellants were in the same business, i.e., thrashing of wheat with a tractor against payment by visiting different districts during harvesting season. Allegation of the prosecution is that deceased were seen last time in the company of the appellants and this fact is clear from the statement of PW5 Fakir Singh, who stated on oath that he is the Ex.Sarpanch of Village Ammo Nangal and on 8.5.1995 had seen two tractors near the house of Mohan Singh. Four persons were seen while sitting near the tractor by spreading gunny bags. They were requested to thrash his wheat, but they had shown their inability due to paucity of time. Next day, he came to know about the murder of two persons. Appellants present in the Court are out of those four persons, who were seen while sitting near the tractor on 8.5.1995. Statement of Fakir Singh inspires confidence because he has not named the deceased or the appellants. He has simply stated that he had seen four persons while sitting near the tractor, near the house of Mohan Singh, resident of Village Rangar Nangal. Something could be said if this witness would have named the deceased and the appellants. Fakir Singh is the resident of Village Ammo Nangal and had no enmity with the appellants. So, there was no motive for him to implicate the appellants by saying that they were seen with tractors along with two other persons. While appearing in Court, Fakir Singh did not state that remaining two persons present with the appellants are those persons, whose dead bodies were noticed on the next day, i.e., 9.5.1995. So, mere one line that this witness is from Village Ammo Nangal and has not named the deceased and the appellants is not sufficient to ignore his statement. Crl.Appeal No.637-DB of 2001 12 Second witness of last seen is Balwinder Singh, resident of Village Patti Sekhwan. Balwinder Singh along with Makhan Singh with a tractor attached with thrasher was also in the area of Baba Bakala to thrash wheat. He was near Mehta Chowk, then near Fauji Dhaba, had seen Shangara Singh, who was also from Village Patti Sekhwan. Balwinder Singh had a dinner with Shangara Singh at Fauji Dhaba at Mehta Chowk. Balwinder Singh and Shangara Singh were on different tractors while going towards the link road. In cross-examination, Balwinder Singh admitted that he along with Makhan Singh on a tractor with thrasher was going towards Dera Baba Nanak from Batala. Mehta Chowk is towards the other side from Batala. But nothing to presume that while going towards Dera Baba Nanak from Batala, Balwinder Singh along with Makhan Singh cannot be in the area of Mehta Chowk, because they were also in the area of Batala to thrash wheat against payment. By thrashing wheat in one village on one side of Batala, Balwinder Singh and another were expected to visit second village situated on the other side of Batala. They were to thrash wheat in different villages. So, while going towards Dera Baba Nanak side, Balwinder Singh and Makhan Singh were expected to be in the area of Mehta Chowk, because no suggestion was put to Balwinder Singh that in the area of Mehta Chowk, they had not thrashed wheat of any one. After thrashing wheat in the area of Mehta Chowk, they can go towards Dera Baba Nanak side and after thrashing wheat standing in some killas towards Dera Baba Nanak, they can again go towards the side of Batala. Deceased being in the same profession were also to visit different villages to thrash wheat. Appellants were also from the same area and were carrying on the same business, i.e., thrashing of wheat against payment. So, presence of Balwinder Singh near Crl.Appeal No.637-DB of 2001 13 Fauji Dhaba at Mehta Chowk and to have dinner with the deceased, was natural because both the parties were not from Batala area. They were from Barnala and Ludhiana side. After dinner, Balwinder Singh with Makhan Singh had gone towards Dera Baba Nanak side. Deceased on different tractor had gone towards other side when they were at a distance of 4 kms. from Mehta Chowk. Balwinder Singh is not related to the deceased. He was not inimical towards the appellants, but Balwinder Singh, appellants and deceased were in the same profession. So, presence of Balwinder singh with appellants and deceased near Fauji Dhaba at Mehta Chowk was natural. On 8.5.1995, deceased was seen last time in the company of appellants. On 9.5.1995 in the morning, dead bodies lying in the fields were noticed by Jagir Singh. Jagir Singh informed this fact to the complainant, namely, Harmohan Singh, who had reported the matter to the police. On 21.6.1995, both the appellants had made extra judicial confession before Hardev Singh (PW7). Hardev Singh is the resident of Village Jaito Sarja. He was President of Akali Dal (Badal) of Batala Block. When he appeared on 10.3.1997, then supported the prosecution story. In the last lines of his examination-in-chief, he stated that about 1-3/4 years ago appellants came to him and made extra judicial confession. After 1-1/2 months, the appellants again came to him and he had produced them before the police, but this part of the statement of Hardev Singh is not correct one. In the statement under Section 161 Cr.P.C., Hardev Singh has not stated a word that 1-3/4 years ago, appellants had made extra judicial confession. Last lines of examination-in-chief is an improvement. Hardev Singh to help the appellants intentionally stated that 1-3/4 years ago, appellants had made Crl.Appeal No.637-DB of 2001 14 extra judicial confession. Again on 21.6.1995, they came to him (Hardev Singh) and were produced before the police. After the statement of Hardev Singh dated 10.3.1997, charge was amended as per request of the State. After amendment of charge, again Hardev Singh appeared on 22.1.2001. While appearing on 22.1.2001, Hardev Singh did not support the prosecution story but statement dated 22.1.2001 is to be ignored because after amendment of charge, prosecution is to see whether the witnesses appeared before amendment of charge are to be re-examined or not. In case, witnesses are produced after amendment of charge, then their examination- in-chief is to be recorded and they are to be cross-examined. But in the present case, Public Prosecutor for the State stated that no further evidence is to be led. Then the appellants moved an application to re-summon Hardev Singh. Hardev Singh was further cross-examined on 22.1.2001. Then he did not support the prosecution story. As discussed earlier, Hardev Singh was the President of Akali Dal (Badal) of Batala Block. Before amendment of the charge, he had fully supported the prosecution story by saying that on 21.6.1995, appellants came and made extra judicial confession and then they were produced before the Investigating Officer. After statement of Hardev Singh, number of dates were given to the prosecution. After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Case was adjourned from time to time for defence evidence. Then on 9.12.2000, application was moved by the State for amendment of charge and after amendment of charge, Public Prosecutor for the State made a statement that no further evidence was to be led. On the request of the appellants, Hardev Singh was further cross-examined, when he had resiled from his earlier statement. All Crl.Appeal No.637-DB of 2001 15 this shows that Hardev Singh when further cross-examined by the appellants did not support the prosecution story because he was won over by the appellants. Possibility of compromise with the appellants cannot be ruled out. No explanation was given by Hardev Singh why he has supported the prosecution story before amendment