Crl.Appeal No.381-DB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.381-DB of 2004 Date of decision: 13.12.2010 Ranbir 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.N.S.Dandiwal, Advocate, for the appellants. Mr.D.S.Brar, DAG, Punjab. ... JORA SINGH, J. Ranbir Singh son of Jang Singh and Kewal Singh son of Balvir Singh filed this appeal to challenge the judgment of conviction dated 22.1.2004 and order of sentence dated 23.1.2004 passed by Additional Sessions Judge (Adhoc), Fast Track Court, Faridkot, in Sessions Case No. 3 of 15.9.2001, arising out of FIR No. 24 dated 23.5.2001 under Sections 364/302/34 IPC, PS Nihal Singh Wala. By the said judgment, they were convicted under Sections 302/34 IPC and sentenced to undergo RI for life and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for three months each. Prosecution story, in brief, is that on 21.5.2001, Madan Lal son of Jagan Nath, father of Parshotam Kumar, deceased, lodged report with Police Station, Nihal Singh Wala, to the effect that his son Parshotam Kumar used to work at Nihal Singh Wala and purchase stamp papers daily from the Treasury Office, Moga, for registration purposes. Today at about 9.00 AM, he had gone from Nihal Singh Wala to Moga with a sum of Crl.Appeal No.381-DB of 2004 2 Rs.1,10,000/-. Parshotam Kumar used to return by 1.00 PM daily after purchasing stamp papers from Treasury Office, Moga, but today, he failed to return till 1.00 PM. On telephone, enquiry was made from Treasury Office, Moga, and came to know that Parshotam Kumar has not come to the treasury office to get stamp papers. In view of the statement of Madan Lal (Ex.PM) at 1.10 PM, DDR was recorded. On 23.5.2001, Ashok Kumar, brother of Parshotam Kumar, deceased, reported to the police that Parshotam Kumar used to purchase stamp papers privately and deliver the same to the Deed Writers at Nihal Singh Wala. On 21.5.2001 at about 8.30 AM, he along with his uncle Dharam Pal was standing at the bus stop of Nihal Singh Wala. Then his brother Parshotam Kumar also came at the bus stop. At that time, he was carrying Rs.1,10,000/-. In the meantime, Randhir Singh Rana, who was working with a Deed Writer at Nihal Singh Wala, came on a scooter and requested Parshotam Kumar to accompany him on the scooter. In their presence, Parshotam Kumar had gone with Randhir Singh on a scooter but his brother did not return in the evening. Then his father lodged a report to the effect that his son Parshotam Kumar is missing. Today, he along with his uncle Dharam Pal when came back from their relations after attending personal work, then his father Madan Lal informed that Parshotam Kumar, who had gone to Moga on 21.5.2001 to purchase stamp papers, failed to return. An effort was made to locate him but he was not found any where. He suspected that due to greed of money, his brother Parshotam Kumar was kidnapped by Randhir Singh @ Rana with an intention to murder him. Statement of Ashok Kumar (Ex.PA) was recorded at 1.30 PM by SI Avtar Singh then formal FIR was recorded. Crl.Appeal No.381-DB of 2004 3 On 23.5.2001, Swaran Singh son of Joginder Singh, resident of Village Langeana, was going towards his fields to irrigate. At about 10.00 AM, he was present near phidde drain parallel to his fields, then noticed dead body of a young man lying in the drain. Injury mark was noticed on the right side of the chest. He had gone to lodge report and near the bridge of drain in the area of Village Jai Singh Wala at about 11.05 AM, met the police party headed by ASI Swaran Singh, PS Baghapurana. Statement of Swaran Singh (Ex.PV) was recorded, which was signed by him in token of its correctness. After making endorsement (Ex.PV/1), statement was sent to the police station, on the basis of which, report was recorded. After that, ASI Swaran Singh along with police party had gone to the spot, where dead body was lying. Inquest report (Ex.PT) was prepared. Dead body was sent to G.G.S. Medical College and Hospital, Faridkot, for postmortem examination. In G.G.S. Medical College and Hospital, Faridkot, dead body was identified by Ashok Kumar. After postmortem examination, dead body was handed over to the relatives for cremation. On 27.7.2001, police party headed by SI Gurcharan Singh after investigation of this case was returning from Village Khai, then received a message from DSP, Baghapurana, to hold nakabandi near Chowk Jawahar Singh Wala in the area of Nihal Singh Wala for checking of the vehicles. When police party was holding nakabandi, then sighted scooter No.PB-36- 8019 while coming from the side of Village Jawahar Singh Wala, and was signalled to stop. Randhir Singh was driving the scooter, whereas Kewal Singh was on the pillion. They were arrested. On search of Randhir Singh, one silver ring and one watch were recovered. R.C. of the scooter was also Crl.Appeal No.381-DB of 2004 4 recovered from him. Ring and watch were made into a sealed parcel with the seal bearing impression `GS’. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. R.C. along with scooter was also taken into police possession vide separate memo attested by the witnesses. Kewal Singh was interrogated and on interrogation, he suffered disclosure statement and in pursuance of disclosure statement, got recovered bag containing currency notes of Rs.1,09,400/- along with challan forms, one torn driving licence of deceased, some torn papers of diary and one purse of black colour. Recovered articles were taken into police possession vide separate memos attested by the witnesses. On 29.5.2001, Randhir Singh was interrogated and in pursuance of disclosure statement, got recovered dagger from the specified place. Sketch of dagger was prepared and made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Madan Lal produced receipts qua ring and watch and the same were taken into police possession vide separate memo attested by the witnesses. On 10.8.2001, identification of ring and watch was arranged. After completion of investigation, challan was presented in Court. Accused were charged under Sections 364/302/34 IPC, to which they pleaded not guilty and claimed trial. PW1 Jagdish Kumar @ Rinku stated that his niece was owning motorcycle. On 21.5.2001, Kewal Singh came to him and requested to hand over his motorcycle because he was to go to meet his relation. He (Jagdish Kumar) was to go somewhere and replied that he could arrange a scooter of Crl.Appeal No.381-DB of 2004 5 his uncle Dharam Pal. Scooter No. PB-36-8019 of Dharam Pal was handed over to Kewal Singh but after that, Kewal Singh did not return. PW2 Dharam Pal son of Diwan Chand stated that on 21.5.2001 at about 8.00 AM, his nephew Rinku along with Kewal Singh came with a request to provide scooter. Scooter was handed over to Kewal Singh but after that, he did not return with scooter. PW3 Raj Kumar stated that in the month of May, 2001, he was working as Deed Writer at Nihal Singh Wala and used to get stamp papers through Parshotam Kumar. On 21.5.2001, he had given Rs.9,500/- for purchase of stamp papers along with challan form (Ex.P1) filled by him. After that, Parshotam Kumar never came back. PW4 Kehar Singh stated that he was also working as Deed Writer at Tehsil Complex, Nihal Singh Wala, and used to arrange stamp papers from Treasury Office, Moga, through Parshotam Kumar. On 21.5.2001, he had handed over 13 challan forms (Ex.P2 to Ex.P13) duly filled by him along with Rs.87,500/-, but after that, Parshotam Kumar never came back. PW5 Dharam Pal son of Jagan Nath, uncle of the deceased, stated that on 21.5.2001 at about 8.30 AM, he along with his nephew Ashok Kumar was present at the bus stop of Nihal Singh Wala. Parshotam Kumar also came there. He used to purchase stamp papers from Treasury Office, Moga, for supplying the same to Deed Writers at Nihal Singh Wala. He was standing at the bus stop to board the bus to visit Moga. At that time, he was carrying a bag containing currency notes of Rs.1,10,000/- for purchase of stamp papers. In the meantime, Ranbir Singh came there on a scooter. He was working privately with a Document Writer at Nihal Singh Wala and Crl.Appeal No.381-DB of 2004 6 requested Parshotam Kumar that he was going to Moga and he (Parshotam Kumar) should accompany him. Parshotam Kumar along with his bag sat on the scooter of Ranbir Singh. After that, Parshotam Kumar did not return till evening. Then his brother Madan Lal lodged report with the police that Parshotam Kumar was missing. He had left for Moga and from Moga had gone to Rohtak and came back on 23.5.2001. Then his brother informed that Parshotam Kumar was missing. Ashok Kumar had also accompanied him to Rohtak. PW6 Ashok Kumar is the complainant and supported the version of his uncle Dharam Pal (PW5) by saying that when they were present at the bus stop of Nihal Singh Wala, then Ranbir Singh came and requested his brother Parshotam Kumar to accompany him on his scooter to Moga but Parshotam Kumar failed to return till evening. On 23.5.2001, he had identified dead body of his brother Parshotam Kumar in the hospital. On 10.8.2001, he had identified ring and watch of his brother Parshotam Kumar in the police station. PW7 Rajesh Goyal, Deed Writer, stated that he used to arrange stamp papers through Parshotam Kumar from Treasury Office, Moga. On 21.5.2001, he had handed over Rs.16,500/- to Parshotam Kumar for arranging stamp papers along with application (Ex.PC). After that, Parshotam Kumar did not return with stamp papers. PW8 Resham Singh stated that on 21.5.2001, he had given 12 challan forms and Rs.85,000/- to Parshotam Kumar for arranging stamp papers from Treasury Office, Moga. PW9 Dharam Pal son of Shiv Ram stated that on 28.1.2001, Parshotam Kumar had purchased ring vide receipt (Ex.PD). Crl.Appeal No.381-DB of 2004 7 PW10 Baldev Krishan stated that on 21.5.2001 at about 9.30 AM, he was present near the bus stop of Village Jai Singh Wala, then sighted Ranbir Singh and Kewal Singh along with Parshotam Kumar on a scooter while coming from the side of Village Gill. Scooter was being driven by Ranbir Singh. Kewal Singh was on the pillion, whereas Parshotam Kumar was in between the driver and the pillion of the scooter. He had enquired from them as to where they were going, then Ranbir Singh replied that they are going towards Village Langeana via drain for some urgent work. PW11 Gursewak Singh prepared scaled site plan (Ex.PE). PW12 Ram Pal had taken photographs (Ex.P14 and Ex.P15) of the dead body. Ex.P16 and Ex.P17 are negatives. PW13 Gurcharan Singh stated that he had sold wrist watch to Parshotam Kumar vide bill (Ex.PH). PW14 HC Gursewak Singh had recorded DDR No.19 dated 21.5.2001 (Ex.PM). PW15 Madan Lal produced receipt (Ex.PH) of wrist watch before the police. PW16 Krishan Kumar is the Member Panchayat of Village Nihal Singh Wala and stated that on 10.8.2001, he was summoned by the police and in his presence, Ashok Kumar had identified watch and ring of his brother. Regarding identification of watch and ring, identification memo (Ex.PB) was prepared, which was attested by him. PW17 Vijay Kumar stated that on 20.5.2001, he had given Rs.1500/- to Resham Singh for purchase of stamp papers. Crl.Appeal No.381-DB of 2004 8 PW18 HC Hira Singh was with the police party headed by SI Gurcharan Singh on 29.5.2001. Ranbir Singh was interrogated. In pursuance of disclosure statement (Ex.PN), Ranbir Singh got recovered dagger (Ex.P16) from the specified place. PW19 Sanjiv Kumar, Clerk, DTO Office, brought the record and stated that as per record, driving licence was issued in the name of Parshotam Kumar. Photocopy of entry of register is Ex.PP. PW20 Ram Bilas was with the police party headed by SI Gurcharan Singh on 27.5.2001. While present near Chowk Jawahar Singh Wala, then Ranbir Singh and Kewal Singh were sighted while coming on a scooter from the side of Village Jawahar Singh Wala and were arrested in this case. On search of Ranbir Singh, ring and watch were recovered. Kewal Singh was interrogated. On interrogation, he had suffered disclosure statement and in pursuance of disclosure statement, got recovered bag containing Rs.1,09,400/- and 14 challan forms. One black colour purse containing driving licence was also recovered. Recovered articles were taken into police possession. PW21 Dr.Sarabjit Singh Sandhu, on 23.5.2001 conducted postmortem examination on the dead body of some unknown person brought by the police officials of PS Baghapurana, and observed as under:- “Face was bated. Postmortem staining were present at the back of the trunk and lower limbs. Rigor mortis was absent on all over the body. Eyes and mouth were open. Maggots were crawling all over the body. It was swelling. Hair of head, auxiliary hair and eye brows, eye lashes, finger nails were easily pulled. Crl.Appeal No.381-DB of 2004 9 Following injuries were found on the dead body:- 1. There was incised penetrating wound with averted margins measuring 3.5 cms in length and 1.5 cms in breadth present on the right mammary gland” Clotted blood was present. On dissection of the chest, there was cut fracture of 4th and 5th ribs of right side and laceration of right pleurae and right lung. Right pleural cavity contained about 150 cc of fluid and clotted blood. Wound was elliptical in shape.” Injury was found to be ante mortem in nature and sufficient to cause death in the ordinary course of nature. Probable time that elapsed between the injuries and death was within about 1 to 2 hours and between death and postmortem within about 2 to 3 days. PW22 Tajinder Pal stated that on 19.5.2001, he had given Rs.4,000/- to Resham Singh for purchase of stamp papers. PW23 Vipan Kumar Deora, employee of Treasury Office, Moga, stated that Parshotam Kumar used to visit the office to purchase stamp papers but as per record, on 21.5.2001, he did not visit Treasury Office, Moga. PW24 ASI Swaran Singh stated that on 23.5.2001, he along with police party was present near the drain of Village Jai Singh Wala, then Swaran Singh met him. Statement of Swaran Singh (Ex.PV) was recorded. After making endorsement, statement was sent to the police station. After that, police party had gone to the spot, where dead body was lying. Inquest report was prepared. Dead body was sent to the hospital for postmortem examination. Crl.Appeal No.381-DB of 2004 10 PW25 SI Gurcharan Singh is the Investigating Officer. After close of the prosecution evidence, statements of the accused were recorded under Section 313 C.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of Ranbir Singh was that case is false. Defence version of Kewal Singh was as under:- “I am innocent. Our house adjoins the house of Gurcharan Singh, Sub Inspector, Kotkapura, and our wall is joint and one gate of our house opens towards the house of Gurcharan Singh. In February, 2001, son of Gurcharan Singh broke open the lock of our gate and left the water in our house which is at a lower level. He has also constructed a septic tank of his latrine in front of the door of our house and as such, the same gives bad smell while we pass. Myself and my mother had protested against the same and Gurcharan Singh had taken ill of it and had stated that he will see us. Due to that grudge, I was called from my house and was falsely implicated in this case.” In defence, DW1 Jang Singh, father of Ranbir Singh, accused, stated that on 21.5.2001 at 7.30 PM, Ranbir Singh was brought from his house for enquiry and was released at 9.00 PM. At 11.00 PM again police party headed by SI Avtar Singh came. Ranbir Singh was taken away by the police party. On the next day, he along with Teja Singh, Member Panchayat, and Tirath Singh, had gone to police station and met SI Avtar Singh. SI Avtar Singh replied that after enquiry, Ranbir Singh was to be released in the evening. Crl.Appeal No.381-DB of 2004 11 DW2 Sukhdev Singh stated that he was a tenant under Balbir Singh, father of Kewal Singh, accused. House of Kewal Singh was adjoining to the house of SI Gurcharan Singh. In 2001, Gurcharan Singh had constructed first floor of his house and gutter in the back street, which used to give bad smell. They had protested. After about three months, he came to know regarding false implication of Kewal Singh in this case. DW3 Balwinder Kaur is the mother of Kewal Singh and stated that in the month of February, 2001, Sukhdev Singh, tenant, came and reported that water was falling from the back side door from the walls of Gurcharan Singh. She had lodged protest with SI Gurcharan Singh but he did not listen. Gurcharan Singh had constructed gutter near her house, which was giving foul smell. Kewal Singh and Kulwant Singh were also with her. After about three months, SI Gurcharan Singh along with police party came to her house and taken away Kewal Singh. Kewal Singh was falsely implicated in this case. After hearing learned Public Prosecutor for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. We have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellants argued that present case is a blind murder. There is no eye witness. Case is based on circumstantial evidence, but prosecution failed to complete the chain of circumstantial evidence. First circumstance to implicate the appellants is the evidence of last seen but last seen evidence has no nexus with the crime. According to the evidence, deceased was seen in the company of appellants Crl.Appeal No.381-DB of 2004 12 at about 8.30/9.30 AM as per Ashok Kumar, Dharam Pal and Baldev Krishan, whereas PW4 Kehar Singh stated that on 21.5.2001 at 1.00 PM, he had handed over challan forms to Parshotam Kumar, deceased. Missing report was lodged on 21.5.2001, whereas FIR was recorded at the instance of Ashok Kumar on 23.5.2001. Appellants were arrested on 27.5.2001. Recovery from Ranbir Singh was of watch and silver ring. Recovered articles were not valuable articles. If appellants had committed the crime, then there was no idea to carry ring and watch with them. Recovery was planted. Independent witnesses were available but at the time of recovery, no independent witness was joined. Medical evidence is contrary to the ocular evidence. Dead body was recovered on 23.5.2001. At that time, maggots were found crawling all over the body. It was swelling. Hair of head, auxiliary hair, eye brows, eye lashes and finger nails were easily removable. As per report of the doctor, condition of the body cannot be the same as noted by the doctor. Condition of the body was possible after a week from the death. In fact, Ranbir Singh was brought from his house on 21.5.2001 and was falsely implicated. Kewal Singh was owning a house adjoining to the house of SI Gurcharan Singh, IO. IO had dispute with the tenant of Kewal Singh. Tenant of Kewal Singh appeared as DW2. When tenant had lodged protest with the landlord, then landlord, i.e., Kewal Singh and his mother had contacted the IO. Due to this reason, Kewal Singh was brought from his house and falsely implicated by the IO. Learned State counsel argued that Parshotam Kumar, deceased, used to purchase stamp papers from Treasury Office, Moga, for supply of the same to Deed Writers at Nihal Singh Wala. On 21.5.2001, Parshotam Kumar in the morning at about 8.30 AM was present at the bus stop of Crl.Appeal No.381-DB of 2004 13 Village Nihal Singh Wala and from there, he was taken away by Ranbir Singh. At that time, Parshotam Kumar was carrying a bag containing about Rs.1,10,000/-. At about 9.30 AM on the same day, deceased was seen in the company of appellants by PW10 Baldev Krishan while present near the bus stop of Village Jai Singh Wala. When deceased failed to return from Moga at about 1.00 PM, then report was lodged by Madan Lal. At that time, complainant party was not sure regarding the death of Parshotam Kumar. Ashok Kumar, brother of deceased, and his uncle Dharam Pal were present at bus stand of Village Nihal Singh Wala, when deceased had gone with Ranbir Singh on scooter. Ashok Kumar and his uncle Dharam Pal after visiting Rohtak when came back on 23.5.2001, then came to know that Parshotam Kumar was missing. Then Ashok Kumar got recorded the present FIR. On the same day, Swaran Singh son of Joginder Singh had seen the dead body lying in the phidde drain. Matter was reported to the police party of PS Baghapurana. ASI Swaran Singh after preparing inquest report had shifted the dead body to the hospital for postmortem examination. PS Baghapurana flashed message to different police stations, including PS Nihal Singh Wala. When complainant party came to know regarding dead body, then Ashok Kumar had identified the dead body lying in G.G.S. Medical College and Hospital, Faridkot. On 21.5.2001, Kewal Singh had arranged scooter from Dharam Pal on the request of Jagdish Kumar @ Rinku, PW1. On 27.5.2001, both the appellants were arrested by the police with scooter. Ring and watch of deceased were recovered from Ranbir Singh. In pursuance of disclosure statement of Kewal Singh, purse containing currency notes and driving licence of the deceased were also recovered. In case on 21.5.2001, Ranbir Singh was brought from his house Crl.Appeal No.381-DB of 2004 14 and kept in police station illegally, then father of Ranbir Singh could easily report the matter to the higher authorities. No complaint to any authority. On the request of Ranbir Singh, deceased had accompanied him because Ranbir Singh was also working as a Clerk with Deed Writer at Nihal Singh Wala. No documentary proof on the file that Kewal Singh was owning any house adjacent to the house of SI Gurcharan Singh, IO, and the house was on rent with DW2 Sukhdev Singh. If Sukhdev Singh had some dispute with SI Gurcharan Singh and on the request of Sukhdev Singh, Kewal Singh and his mother had lodged protest with the IO, then there was no idea to implicate Kewal Singh because Kewal Singh along with Ranbir Singh was arrested with scooter of PW2 Dharam Pal, who is not related to the complainant party. More than Rs.1,00,000/- was recovered from the bag carried by Kewal Singh along with challan forms filled by different Deed Writers. No explanation from the side of the appellants as to how they were in possession of scooter of PW2 Dharam Pal, challan forms filled by different Deed Writers and driving licence of the deceased. Appellants had motive to commit the crime because they had the knowledge that daily deceased used to visit Treasury Office, Moga, with payment to purchase stamp papers for supply to Deed Writers at Nihal Singh Wala. Chain of circumstantial evidence is complete pointing out that crime was committed by the appellants only and not by some body else. First submission of learned counsel for the appellants was that evidence of last seen has no nexus with the crime because at 1.00 PM, PW4 Kehar Singh had handed over Rs.87,500/- with 13 challan forms to the deceased. After going through the evidence on the file, we are not in a position to agree with the submission of learned counsel for the appellants. Crl.Appeal No.381-DB of