IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Criminal Appeal No. 382 -DB of 2000 Dated of Decision:- May 01 , 2009 Bimla ....APPELLANT VERSUS State of Punjab ....RESPONDENT 2) Criminal Appeal No. 211 -DB of 2005 Badal ....APPELLANT VERSUS State of Punjab ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Sh. J.B.S.Gill, Advocate for the appellants. Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.382-DB of 2000 and Criminal Appeal No.211-DB of 2005 by a common order, as they arise out of the same order/judgment of the learned Additional Sessions Judge, 2 Criminal Appeal No. 382 -DB of 2000 and Criminal Appeal No. 211 -DB of 2005 Hoshiarpur, whereby he convicted Bimla w/o Ram Pal and Badal son of Didar Chand under Sections 302/34 IPC and sentenced them to undergo life imprisonment. Further they were directed to pay a fine of Rs.5,000 each, in default to further undergo R.I. for six months. The case of the prosecution is unfolded by the statement Ex.PF of Tarsem Singh given to Balbir Singh ASI, Police Station Garhdiwala. Tarsem Singh stated, that he is a resident of Village Gondpur and is Sarpanch of the village. Parkasho w/o Milkhi Ram is living in the village. Milkhi Ram had five sons. Four of the sons of Milkhi Ram were staying separately. One of his sons, Ram Pal was staying in the house of Milkhi Ram. Ram Pal was married to Bimla Devi and out of this wedlock, two children were born. Milkhi Ram died some time back. Ram Pal husband of Bimla Devi had gone to Italy about one year before the occurrence. On 9.6.97 at about 9.00 a.m., Tarsem Singh was present in his house and he came to know that Parkasho widow of Milkhi Ram had been murdered. Tarsem Singh went to the house of Parkasho and saw her dead body lying on a cot in the store room with blood stains on it. The dead body was having sharp edged injuries on the face, left side of chin and neck. Her daughter-in-law Bimla Devi was not present in the house and two children of Bimla Devi, her daughter aged about 4 years and son aged one year were present in the house. In the bathroom one lady salwar and shirt having blood stains were lying. A matching dupatta was also lying in the kitchen. It seemed that Bimla Devi on committing the murder of Parkasho ran away after changing her clothes. On one or two occasions earlier, Parkasho told 3 Criminal Appeal No. 382 -DB of 2000 and Criminal Appeal No. 211 -DB of 2005 Tarsem Singh, that her daughter-in-law Bimla Devi was not giving money to her for her needs and due to this, their relations were strained. He suspected, that Bimla Devi had committed the murder of Parkasho. On the basis of this statement, FIR Ex.PF/2 was recorded on 9.6.1997 at 10.30 a.m. and the special report reached the Magistrate on 9.6.1997 at 8.00 p.m. The prosecution to prove its case brought into the witness box, Dr. Rajesh Kumar PW1, Krishan Lal Patwari PW2, Harbans Singh PW3, Tarsem Singh Sarpanch PW4, Surjit Singh SI PW5, Mohinder Pal PW6, ASI Balbir Singh PW7, SI Balbir Singh PW8, ASI Lehmbar Singh PW9, Baljit Singh HC PW10, Harjit Singh Photographer PW11, Sham Lal HC PW12, Constable Sukhwinder Singh PW13, Constable Ram Singh PW14, Sanjiv Kumar PW15 and SI Ravinder Pal PW16. Mohinder Singh Ex.Panch appeared as DW1. Learned counsel for the appellants has argued, that the only evidence against the appellants is qua the motive, that also cannot be substantiated, as in FIR Ex.PF/2, the motive as stated by Tarsem Singh PW4 is that Bimla Devi was not giving money to Parkasho and due to this, there were strained relations between them. Tarsem Singh PW4 in his statement before the Court has spelt out the motive that both appellants Badal and Bimla were having illicit relations and deceased Parkasho objected to it and it is for this reason that she was eliminated by the appellants. No independent evidence has come on record about the appellants having illicit relations. 4 Criminal Appeal No. 382 -DB of 2000 and Criminal Appeal No. 211 -DB of 2005 Tarsem Singh PW4 and Mohinder Pal PW6 in their testimony before the Court have stated all by hearsay, regarding the illicit relations between appellant Badal and Bimla Devi. The extra judicial confession made to Sanjeev Kumar PW15 is not worthy of any credence, as it has been allegedly made before the nephew of Ram Pal husband of appellant Bimla Devi. Sanjeev Kumar PW15 is no other person than the son of Mohinder Pal PW6. Mohinder Pal PW6 is the son of Milkhi Ram, the late father-in-law of appellant Bimla Devi. Appellant Bimla would not have made a confession before Sanjeev Kumar PW15. The alleged extra judicial confession as per statement of Sanjeev Kumar PW15, was made on 1.6.1997. Occurrence had taken place on 9.6.1997. There was no question of any extra judicial confession being made on 1.6.1997, when still the occurrence had not taken place. This may be a typographical mistake, but in statement under Section 161 Cr.P.C., the date is given as 9.6.1997. The public prosecutor did not clarify as to whether the extra judicial confession was made on 1.6.1997 or 9.6.1997. The confession could not have been made on 9.6.1997 also, as the occurrence itself had taken place on 9.6.1997. Apart from these two sets of evidence with the prosecution i.e. the motive and extra judicial confession, there is no other evidence against the appellants. Learned counsel for the State has argued, that the motive for the commission of the offence is very strong. Both the appellants had illicit relations. The date of extra judicial confession has been mistakenly given as 1.6.1997. Learned counsel has further argued, that there was no need for 5 Criminal Appeal No. 382 -DB of 2000 and Criminal Appeal No. 211 -DB of 2005 appellant Bimla to run away from the house leaving her two small children on the date of occurrence i.e. on 9.6.1997 if she had not committed the murder. As per the Investigating Officer SI Ravinder Pal PW16, both the appellants were arrested after 14 days of the occurrence, when they were seen on a cycle together. We have heard the learned counsel for the parties and perused the record with their assistance. The main thrust of the arguments of the learned counsel for the State was regarding the motive for the commission of the offence. Tarsem Singh PW4 in his testimony before the Court has stated, that the motive for the commission of the offence was the illicit relations of appellant Badal and Bimla Devi, to which Parkasho objected to. He has further stated, that on 8.6.1997 he saw both Badal and Bimla Devi sitting on a cot in the house of deceased Parkasho, apart from this he never had seen both together. Tarsem Singh PW4, when recalled for his cross-examination, contradicted his own statement and denied that he saw appellants Badal and Bimla sitting on a cot on 8.6.1997. He has further stated, that deceased Parkasho used to tell him, that her daughter-in-law Bimla quarreled with her. This statement regarding illicit relations of Tarsem Singh PW4 is not corroborated by what he stated in FIR Ex.PF/2, regarding the motive for the commission of the offence. In FIR Ex.PF/2 Tarsem Singh PW4 has stated, that deceased Parkasho told him, that her daughter-in-law Bimla was not giving money to her for her daily needs and due to this, there remained a dispute between them. 6 Criminal Appeal No. 382 -DB of 2000 and Criminal Appeal No. 211 -DB of 2005 Tarsem Singh PW4 is the star witness of the prosecution, cannot be relied upon, as qua the motive. He has given two different versions regarding the motive for the commission of the offence. He has stated, that he did not know that Badal accused was working a Pipeline Fitter at Jaipur. He did not know that he was transferred from Jaipur to Bathinda. He did not know as to whether he was residing in the village or not. Tarsem Singh PW4 did not know anything about appellant Badal, but Badal is no other person than the real nephew of the husband of appellant Bimla. This witness i.e. Tarsem Singh PW4 is trying to hide the truth from the Court. Now coming to the next witness of the prosecution i.e. Mohinder Pal PW6 and Sanjeev Kumar PW15, whose testimony also cannot be relied upon. Mohinder Pal PW6 is the son of deceased Parkasho and is the real brother of the husband of appellant Bimla i.e. Ram Pal. Ram Pal shifted to Italy. Sanjeev Kumar PW15, before whom the alleged extra judicial confession was made, is the son of Mohinder Pal PW6. Mohinder Pal PW6 in his testimony before the Court has stated, that a month prior to the occurrence, Parkasho his mother had come to him and told him about the illicit relations between Badal and Bimla. He (PW6) stated, that he pacified her and would advise both appellants Badal and Bimla not to carry on these nefarious activities. He is also not clear about the motive, as he has stated that he heard from the villagers that Badal and Bimla had murdered Parkasho because of their illicit relationship as Parkasho was objecting to it. He has stated, that he did not complain about this illicit relationship to any family member or panchayat, nor had he seen 7 Criminal Appeal No. 382 -DB of 2000 and Criminal Appeal No. 211 -DB of 2005 them any time in a compromising position. This witness also has demolished the motive for the commission of the offence. Sanjeev Kumar PW15 has stated, that on 1.6.1997 he came back from Delhi to his house in Gondpur. He was going to the market at Talwara to purchase some domestic articles. Near the bus stand, he met Badal and Bimla Devi accused. Both of them confessed to him that they committed the murder of Parkasho Devi because she was suspecting about their illicit relations. In his cross-examination, he has denied that he mentioned to the police that he came on 1.6.1997. He in his statement under Section 161 Cr.P.C. has stated, that he came from Delhi on 9.6.1997, when the extra judicial confession was made before him. The testimony of this witness also gets demolished, as on 1.6.1997 the occurrence had not taken place. The murder took place at 9 a.m. on 9.6.97 in the morning. There was no need for the appellants to make an extra judicial confession the very day the murder had taken place. He has further stated, that appellant Badal had told him at Mukerian that his grand mother died. He was not present in the village, when his grand mother died. This witness’s statement is a bundle of confusion and contradictions. A doubt is created in our mind as to whether the appellants have committed the murder of Parkasho, the benefit of which is given to the accused. As already discussed and observed above, Criminal Appeal No.382-DB of 2000 of appellant Bimla w/o Ram Pal and Criminal Appeal No.211-DB of 2005 of appellant Badal son of Didar Chand are allowed. Their conviction and sentence is set aside. They are acquitted of the charge 8 Criminal Appeal No. 382 -DB of 2000 and Criminal Appeal No. 211 -DB of 2005 framed against them. If in custody, they be set free forthwith, if not needed in any other case. (MEHTAB S.GILL) JUDGE (DAYA CHAUDHARY) May 01, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO