IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 75-DB of 2007 DATE OF DECISION : 20.03.2009 Sampuran Singh and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT Crl. A. No. 159-DB of 2007 DATE OF DECISION : 20.03.2009 Amar Singh and others .... APPELLANTS Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. D.S. Pheruman, Advocate, for the appellants (in Crl. A. No. 75-DB of 2007) Mr. Sukhbir Singh and Mr. S.S. Siao, Advocates, for the appellants (in Crl. A. No. 159-DB of 2007) Mrs. Manjari Nehru Kaul, DAG, Punjab. * * * SATISH KUMAR MITTAL , J. This judgment shall dispose of Criminal Appeal No. 75-DB, Crl. A. No. 75-DB of 2007 -2- filed by Sampuran Singh and Krishan Kumar, and Criminal Appeal No. 159-DB of 2007, filed by Amar Singh, Balbir Singh, Jaspinder Singh and Manjit Kaur. 2. All the aforesaid six accused-appellants were tried by Additional Sessions Judge, Ropar, on charges under Sections 120-B, 148, 302 read with Section 149 IPC, on the allegation that they along with co- accused Harbhajan Singh (a proclaimed offender) entered into a criminal conspiracy to murder Paramjit Singh alias Pamma and in pursuance of their criminal conspiracy, they formed an unlawful assembly with object to murder Paramjit Singh and all the accused, in furtherance of that unlawful assembly, murdered Paramjit Singh. The trial court, vide its judgment and order dated 10.11.2006, convicted all the aforesaid accused (appellants herein) for commission of the offences punishable under Sections 120-B, 148, 302 read with Section 149 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 2,000/-, in default thereof, to undergo further rigorous imprisonment for three months under Section 120- B IPC; to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, in default thereof, to undergo further rigorous imprisonment for three months under Section 302 read with Section 149 IPC; and to undergo rigorous imprisonment for two years under Section 148 IPC. All the sentences have been ordered to run concurrently. 3. As per the prosecution version, Paramjit Singh alias Pamma son of Jora Singh (complainant) was murdered by six accused on 23.2.2004 at Crl. A. No. 75-DB of 2007 -3- 10.00 P.M., in the house of accused Manjit Kaur in village Doomchheri under a conspiracy. The said occurrence was seen by Jora Singh, Karamjit Singh, Amandeep Singh, father, brother and cousin, respectively, of the deceased, and one Paramjit Singh son of Bhagat Singh (an independent witness, who has not been examined by the prosecution). In this case, the formal FIR (Ex.PS) was registered at Police Station Morinda on 24.2.2004, on the basis of statement of Jora Singh (Ex.PB), in which he stated that he was a resident of village Channo, Police Station Mullepur, District Fatehgarh Sahib. He had two sons, namely Karamjit Singh and Paramjit Singh (deceased). His son Paramjit Singh was posted as SPO in Police Department at Amloh. On 23.2.2004 at about 8.00 P.M., when he reached his residence after completing his work, he enquired from his wife as to whether their son Paramjit Singh had returned from his duty or not. On this, his wife told him that Paramjit Singh had gone to village Doomchheri at about 7.00 P.M., on his motor cycle to meet Avtar Singh (husband of accused Manjit Kaur) and he will stay there. On this, he (complainant) got suspicion, because they had neither any relation with Avtar Singh nor Avtar Singh ever visited their house. Thereupon, he along with his elder son Karamjit Singh, Amandeep Singh and one Paramjit Singh son of Bhagat Singh went to village Doomchheri in his maruti car in search of his son Paramjit Singh. At about 10.00 P.M., when they reached in front of the house of Avtar Singh, they saw that motor cycle of Paramjit Singh was lying parked near the gate of the house of Avtar Singh. The main gate was open. Crl. A. No. 75-DB of 2007 -4- Many voices were coming from inside the house. The complainant recognized the voice of his son Paramjit Singh, who was raising raula saying `Na Maro Na Maro'. Then he along with his companions went near the verandah and saw that the wooden door of the house was open and the lights of the house were on. In the second room of the house, his son Paramjit Singh was lying on the floor in a pool of blood. His hands and feet were tied with the clothes. He saw that Amar Singh son of Diwan Chand armed with Daat, Balbir Singh son of Amar Singh armed with Kirpan, Jaspinder Singh son of Amar Singh armed with Sota, Harbhajan Singh resident of Mohalla Gandhi Nagar, Gobindgarh armed with Danda, Krishan resident of Gobindgarh armed with hockey and one unknown person armed with Danda were causing injuries to his son Paramjit Singh with their respective weapons and they were saying that today he will not be allowed to escape and that he be taught a lesson for visiting Manjit Kaur wife of Avtar Singh. When he raised Lalkara, then all the accused ran away from the spot with their respective weapons from the rear door of the house, and in his presence, his son Paramjit Singh died at the spot. He further stated that Manjit Kaur wife of Avtar Singh had called his son Paramjit Singh at her house under a conspiracy and murdered him by causing injuries in connivance with the aforesaid accused. According to him, the motive behind the occurrence was that the above said accused were suspecting that his son Paramjit Singh was having illicit relations with Manjit Kaur. 4. The above statement of the complainant was recorded by SI Crl. A. No. 75-DB of 2007 -5- Varinderjit Singh, SHO, Police Station Morinda, when he was present in the area of Samrala Chowk, Morinda in connection with patrolling. Thereafter, the spot inspection was conducted by the Investigating Officer. Rough site plan (Ex.PT) depicting the place of occurrence was prepared, inquest report (Ex.PC) was prepared.. From the spot, the hairs, which were lying in the fist of the left hand of Paramjit Singh, blood stained earth, double bed sheet stained with blood, one blood stained quilt, one blood stained shirt of the deceased, a blood stained shirt of Avtar Singh, shoes of the deceased, one Bajaj Chetak Scooter bearing No. PB-43-0088 along with its RC in the name of accused Balbir Singh and one motor cycle bearing No. PB-23A- 0417 belonging to the deceased were taken into possession vide separate recovery memos. Thereafter, the post mortem examination of the dead body of the deceased was got conducted. On 24.2.2004, Dr. Darshan Singh (PW.5) conducted the post mortem examination and noticed the following injuries on the body of the deceased :- 1. Incised wound with clear cut margin of 4 x 2 cm on the right side of forehead just 3 cm above the right eye brow, bone deep. 2. Lacerated wound of 4 x 2 ½ cm on left side of forehead bone deep just 4.5 cm above the left eyebrow. It is horizently placed. 3. Incised wound of 5 x ½ cm obliquely placed on the outer aspect of left eyebrow. 4. Incised wound of 3 x ½ cm on the left side of cheek. 5 cm anterior to the left tragus of left ear. Crl. A. No. 75-DB of 2007 -6- 5. Lacerated wound of 4 x 2 cm on top of the head 1 cm left side of midline. On deeper dissection of skull, the meninges found disrupted with depressed fracture of skull bone corresponding to injury No.5. On further exploration of skull showed cranial cavity full of blood (semi clotted). Brain matter found torn and damaged. 6. Incised wound of 4 x 2 ½ cm on the right posterior side of right forearm, just above the wrist, through which the lower end of ulna fractured (cut end) protruding out. 7. Incised wound of 4 x 1 cm on front of left leg underlying bone was also cut at the middle. 8. Incised wound of 2 x ½ cm on the right knee joint, skin deep. 9. Contusion of 7 x 3 cm on lateral surface of right arm at the level of upper 2/3rd lower 1/3rd. The stomach was found containing 150 cc of semi digested food material. In the opinion of the Doctor, the cause of death was due to head injury (Injury No.5), which was sufficient to cause death in the ordinary course of nature. According to the Doctor, time between injuries and the death was within few hours and between death and post mortem was within 24 hours. 5. During the investigation, accused Amar Singh and Manjit Kaur were arrested on 24.2.2004. The jacket being worn by accused Amar Singh, which was blood stained and the pair of shoes, worn by accused Amar Singh, which were smeared with blood, were taken into possession vide recovery memos Ex.PN and Ex.PO. On 26.2.2004, in pursuance of his disclosure statement Ex.PZ, accused Amar Singh got recovered a Datt, Crl. A. No. 75-DB of 2007 -7- which was taken into possession vide recovery memo Ex.PBB. However, nothing was recovered from accused Manjit Kaur. On 26.2.2004, accused Balbir Singh and Jaspinder Singh were arrested. On 28.2.2004, in pursuance of their disclosure statements, they got recovered a Kirpan and Sota, which were taken into possession vide separate recovery memos. On 5.4.2004, accused Sampuran Singh and Krishan Kumar were arrested. On 7.4.2004, in pursuance of their disclosure statements, they got recovered a Danda and hockey, which were taken into possession vide separate recovery memos. 6. After completion of investigation, challan was presented against six accused, namely Amar Singh, Balbir Singh, Jaspinder Singh, Manjit Kaur, Sampuran Singh and Krishan Kumar. Charges under Sections 120-B, 148, 302 read with Section 149 IPC were framed against all these accused, to which they did not plead guilty and claimed trial. 7. During trial, after examination of PW.2 Jora Singh (complainant), the prosecution filed an application under Section 319 Cr.P.C., for summoning Harbhajan Singh as an accused to face trial along with the other accused. The said application was allowed and Harbhajan Singh was summoned to face trial. However, he did not appear in the court despite issuance of non-bailable warrants against him for a number of times. Consequently, he was declared a proclaimed offender. 8. In support of its case, the prosecution examined 16 witnesses. PW.1 Sandeep Kumar, Photographer, proved the photographs clicked by him at the spot. PW.2 Jora Singh (complainant), PW.3 Karamjit Singh and Crl. A. No. 75-DB of 2007 -8- PW.4 Amandeep Singh, the father, brother and cousin of the deceased, are the eye witnesses of the occurrence. They have fully supported the prosecution case. PW.5 Dr. Darshan Singh conducted the post mortem examination of the deceased. PW.6 Surinder Pal, Naib Tehsildar, stated that on 26.2.2004, the police had moved an application (Ex.PW6/A) before him for taking hairs from the head of accused Amar Singh, to which Amar Singh refused vide his statement Ex.PW6/B. PW.7 Himmat Singh, Clerk of the office of the District Transport Officer, Fatehgarh Sahib, proved that as per the record maintained in the office of DTO, Fatehgarh Sahib, the motor cycle bearing registration No. PB-23A-0417 was registered in the name of deceased Paramjit Singh. PW.8 SI Varinderjit Singh is the Invesetigating Officer. PW.9 Yashpal Gopal, Registration Clerk in the office of SDM, Samrala proved RC of scooter No. PB-43-0088. PW.10 Jasmeet Singh Draftsman prepared the site plan of the place of occurrence. PW.11 ASI Jagir Singh, PW.12 HC Karnail Singh, PW.13 C-II Lachhman Kumar anh PW.14 HC Kulwinder Singh are the formal witnesses. PW.15 Narinder Singh deposed that on 5.4.2004, accused Sampuran Singh came to him and suffered an extra-judicial confession about commission of murder of Paramjit Singh by the accused before him. PW.16 R.K. Walia, Reader in the court of the then ACJM, Ropar proved application moved by the police and the statement of Sampuran Singh and Krishan Kumar to the effect that they do not want that their hairs should be cut for any purpose. 9. Statements of the accused under Sections 313 Cr.P.C., were Crl. A. No. 75-DB of 2007 -9- recorded, in which all the incriminating evidence appearing against them were put to them, to which they denied and pleaded false implication. 10. In defence, accused Sampuran Singh examined DW.1 Malkiat Singh son of Piara Singh, who stated that in the month of April, 2004, ASI Nirmal Singh had come to him and took him to the shop of accused Sampuran Singh and thereafter, ASI Nirmal Singh took Sampuran Singh alongwith him on the plea that some enquiry was to be conducted from him with regard to the whereabouts of accused Harbhajan Singh, brother in law of accused Sampuran Singh, but lateron accused Sampuran Singh was involved in this case. Further, accused Krishan Kumar examined DW.2 Malkiat Singh son of Sadhu Singh, DW.3 Parminder Singh, Ticket Trainer of the Railways Department, DW.4 Lachhman Dass father of accused Krishan Kumar and DW.5 Vinod Kumar brother-in-law of accused Krishan Kumar. He also produced railway tickets Ex.D1 and Ex.D2 and medical prescription slip Ex.D3 in order to prove that on the day of occurrence, he was present at Ara (Bihar). 11. The trial court, after considering the evidence led by the prosecution as well as the defence, came to the conclusion that all the accused had entered into a criminal conspiracy to kill Paramjit Singh and in pursuance of their criminal conspiracy, they called Paramjit Singh to the house of accused Manjit Kaur, where all the accused by forming an unlawful assembly while possessing deadly weapons in prosecution of common object of that unlawful assembly, caused multiple grievous injuries Crl. A. No. 75-DB of 2007 -10- to Paramjit Singh with their respective weapons and killed him at the spot. Therefore, all the accused were convicted and sentenced for the offences, as indicated in the earlier part of this judgment. Hence, these appeals. 12. Shri Sukhbir Singh and Shri S.S. Siao, Advocates, appearing for accused Amar Singh, Balbir Singh, Jaspinder Singh and Manjit Kaur, submitted that in this case, the presence of PW.2 Jora Singh, PW.3 Karamjit Singh and PW.4 Amandeep Singh at the place of occurrence was highly doubtful. It is submitted that these witnesses were not at all present, when the alleged injuries were inflicted on the body of the deceased. They submitted that the learned trial court has not considered this aspect of the matter properly and has wrongly come to the conclusion that the presence of these witnesses at the place of occurrence was not doubtful at all. In this regard, learned counsel argued that complainant Jora Singh is resident of village Channo. He came to his house at 8.00 P.M. Thereafter, as stated by him in the court, he had taken his meal, then enquired from his wife about his son Paramjit Singh and when he was told that Paramjit Singh had gone to the house of Avtar Singh at Village Doomchheri, then he became suspicious and called his son Karamjit Singh (PW.3) from the motor through his nephew Amandeep Singh. Thereafter, Karamjit Singh came to the house and took his meal. Then all the three, namely Jora Singh, Karamjit Singh and Amandeep Singh, went to village Malikpur, village of Paramjit Singh son of Bhagat Singh, which is at a distance of 20/25 Kms. towards Amlol, a different direction. After taking Paramjit Singh son of Bhagat Crl. A. No. 75-DB of 2007 -11- Singh, they went to village Doomchheri, which is at a distance of more than 40 Kms. As per the statements of these witnesses, they reached village Doomchheri at the house of accused Manjit Kaur at 10.00 P.M., where they saw the alleged occurrence. According to the learned counsel, the aforesaid steps cannot be completed within a period of two hours, therefore, these facts clearly establish that the entire version given by these witnesses is false and concocted. Learned counsel further submitted that it has come in evidence that none of the accused was previously known to PW.2, PW.3 and PW.4, the complainant and the eye witnesses, respectively, but PW.2 Jora Singh, in his initial statement, which was recorded by the police on 24.2.2004 at 12.10 A.M., on the basis of which FIR was registered, had categorically named each of the accused, their parentage and their residential addresses. Learned counsel submitted that narration of the names, parentage and residential addresses of the accused by PW.2 further creates a doubt about his presence and the presence of other eye witnesses at the place of occurrence. Learned counsel further submitted that in the statement of PW.2 Jora Singh, it has come that his son Paramjit Singh was posted at Amloh and he used to reside there with his family. He used to come to him at village Channo, when there was an off day. Learned counsel submitted that on the day of occurrence, there was no holiday and the prosecution has not led any evidence to prove this fact that on the day of the alleged occurrence, the deceased came to the house of his parents at village Channo. This fact also belies the statement of PW.2 that on the day of Crl. A. No. 75-DB of 2007 -12- occurrence, his son Paramjit Singh came to his house and thereafter, left to village Doomchheri. The whole story was concocted to give a colour to the whole prosecution version. Learned counsel further argued that the conduct of these witnesses at the time of the alleged occurrence was un-natural. When they saw that the accused were causing injuries to their son/brother, they did not try to save him and chase the accused. Learned counsel further argued that in the present case, the occurrence in which Paramjit Singh had died, might had taken place at 5.00 or 6.00 p.m., on the same day and none of the witnesses was present at the time of that occurrence, but lateron by ante-timing the FIR, a false version was recorded after due deliberations and consultations, in which all the accused were falsely implicated. Learned counsel submitted that this argument is supported by the medical evidence. Dr. Darshan Singh (PW.5) in his statement has categorically stated that the time between injury and death was within few hours, whereas according to the statements of the alleged eye witnesses, the deceased died at the spot. Learned counsel, while referring to the Post Mortem Report of the deceased, points out that at the time of the post mortem examination of the deceased, 150 cc of semi-digested food material was found in stomach, which also shows that the deceased had died at or prior to 6.00 p.m. on 23.2.2004. Learned counsel further argued that in this case, the blood group of the deceased was not got matched with the blood stains allegedly found on the weapons of offence and also on the shoes and jacket of the accused, which is a material lacuna in the prosecution case. Learned counsel further argued Crl. A. No. 75-DB of 2007 -13- that none of the prosecution witnesses has explained the specific injuries inflicted by specific accused with specific weapon. They further argued that this fact also indicates that these witnesses had not seen the alleged occurrence. 13. Regarding recovery of various articles, including the hairs from the fist of the deceased, learned counsel argued that neither this fact was mentioned by the Investigating Officer in the inquest report nor the hairs were shown in the hands of the deceased in the photographs taken at the spot. Even such hairs were not noticed by the Doctor at the time of conducting the post mortem examination of the deceased. Learned counsel submitted that the prosecution has planted the hairs of the accused in order to falsely implicate the accused. Learned counsel further argued that the scooter recovered from the place of occurrence, alleged to be belonging to one of the accused, has not been connected with any of the accused. As per PW.9 Yashpal Gopal, Registration Clerk, Office of SDM, Samrala, Mohinder Singh resident of B-1/365, Dharampura Colony, Kalka Road, Rajpura was the registered owner of Scooter No. PB-43-0088. In his cross- examination, he stated that he does not know any person by the name of Balbir Singh son of Amar Singh of village Gurdhanpur and his name is not entered in the register brought by him. (Thus, it is clear that wrong fact regarding the ownership of the aforesaid scooter was mentioned in the initial version). During investigation, neither any enquiry was conducted nor any statement of the said owner was recorded that he had handed over Crl. A. No. 75-DB of 2007 -14- the said scooter to any of the accused. This fact also creates a doubt in the prosecution version. 14. Learned counsel further argued that the trial court has wrongly recorded a finding about the hatching of criminal conspiracy and formation of an unlawful assembly by all the accused with an object to kill Paramjit Singh. Learned counsel submitted that this finding is totally perverse and without any evidence. He submitted that from the prosecution version, a wrong inference has been drawn by the trial court without there being any evidence of criminal conspiracy. He submitted that as far as accused Manjit Kaur is concerned, she has been wrongly convicted for the offence of criminal conspiracy and forming unlawful assembly armed with deadly weapon. He further argued that conviction of Manjit Kaur under Section 148 IPC is also not sustainable, particularly when at the time of the alleged occurrence she was not present. Further, her conviction under Section 302 read with Section 149 IPC is wholly illegal, particularly when she was not present at the time of the alleged occurrence. Learned counsel further argued that in this case, the prosecution has failed to prove the alleged illicit relations between Manjit Kaur and the deceased. 15. Shri D.S. Pheruman, Advocate, learned counsel appearing for accused Sampuran Singh and Krishan Kumar submitted that as far as accused Sampuran Singh is concerned, his name does not find mention in the FIR. He submitted that the presence and identity of accused Sampuran Singh at the time and place of occurrence has not been established by the Crl. A. No. 75-DB of 2007 -15- prosecution, as no test identification parade was conducted for getting Sampuran Singh identified from PWs. He further argued that the only evidence led by the prosecution against this accused is his extra judicial confession before PW.15 Narinder Singh. Learned counsel submitted that the said extra judicial confession is highly doubtful and is a weak piece of evidence. He submitted that PW.15, in his statement, has admitted that neither he was Sarpanch nor Lambardar of the village nor he was having any influence in the police nor accused Sampuran Singh was close to him. In view of these facts, learned counsel submitted that making of extra judicial confession by Sampuran Singh before Narinder Singh is highly doubtful. He further submitted that recovery effected from Sarmpuran Singh has also not been proved in accordance with law, as no independent witness to the said recovery has been examined. He submitted that undisputedly, in this case, at the time of the alleged occurrence, many independent persons of village Doomchheri were present, but none of them was examined. He submitted that Paramjit Singh son of Bhagat Singh was the only independent witness, who was not examined by the prosecution. Learned counsel further argued that as far as accused Krishan Kumar is concerned, he has been falsely implicated in this case, because at the time of the alleged occurrence, he was not present there. He submitted that DW.2 Malkiat Singh, DW.4 Lachhman Dass and DW.5 Vinod Kumar have proved that on 18.2.2004, accused Krishan Kumar had received a telephonic message from his in-laws