IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 369-DB of 2006 DATE OF DECISION : 04.02.2010 Balwant Singh alias Wahaguru .... APPELLANT Versus State of Punjab ..... RESPONDENT Crl. A. No. 448-DB of 2006 DATE OF DECISION : 04.02.2010 Veero .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Sant Pal Singh Sidhu, Advocate (amicus curiae), for appellant Balwant Singh @ Wahaguru (in Crl. A. No. 369-DB of 2006). Mr. P.K. Ganga, Advocate (amicus curiae), for appellant Veero (in Crl. A. No. 448-DB of 2006) Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeals No. 369-DB Crl. A. No. 369-DB of 2006 -2- and 448-DB of 2006, filed by accused Balwant Singh alias Wahaguru and Veero. Both the accused were tried by the court of Additional Sessions Judge, Moga, in case FIR No. 78 dated 20.7.2004 registered at Police Station Kot Ise Khan, District Moga, under Sections 302/201/34 IPC, for committing the murder of Darshan Lal (husband of accused Veero). Vide judgment dated 27.3.2006, they were convicted under Sections 302/34 and 201/34 IPC; and vide order dated 29.3.2006, they were sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo further RI for one year, each, under Section 302 read with Section 34 IPC; and to undergo RI for three years and to pay a fine of Rs. 2,000/-, in default, to undergo further RI for four months, each, under Section 201 read with Section 34 IPC. 2. In this case, according to the prosecution version, Darshan Lal was killed in the mid-night of 4/5.4.2004 in the house of accused Balwant Singh, situated in village Kot Ise Khan, where Darshan Singh along with his wife Veero (accused in this case) and children was residing in a room. But no body reported the matter to the police. On 8.4.2004, a putrefied dead body of an unknown person was found in the field of one Nirmal Singh in the area of village Sandhe Hassam. On getting the information, the police reached the spot and recorded the statement (Ex.P11) of Nirmal Singh. On the basis of the aforesaid statement of Nirmal Singh, DDR No. 15 dated 8.4.2004 (Ex.P14) was recorded at Police Station Sadar Ferozepur, as at that time, from the statement of Nirmal Singh, no cognizable offence was made Crl. A. No. 369-DB of 2006 -3- out. Lateron, the inquest report (Ex.P12) was prepared, proceedings under Section 174 Cr.P.C. were conducted and the dead body was sent for post mortem examination. 3. On 9.4.2004 at 1.15 PM, Dr. K.K. Aggarwal (PW.5) conducted the post mortem examination on the body of the deceased, it being an unknown dead body. On dissection, of scalp, huge clotted blood was present on left parietal bone. On removal of skull, about 200 cc of clotted blood was present in cranial cavity. During the post mortem examination, the Doctor noticed that the dead body was putrefied. The deceased was wearing kameej, grey pant, black banyan, blue kachha, black shoes and brown socks in both feet. The body was foul smelling. Left eye was closed and right was missing. Soft tissues were missing over face mostly. Right hand was missing, maggots were crawling all over the body, fingers of left hand wre missing, scalp hair were missing, testis and penis were swollen. The viscera taken from the body was sent to Chemical Examiner, Patiala for chemical examination. According to the report of the Chemical Examiner (Ex.P9), contents of organophosphorus compound pesticides were found in the sample viscera. According to the said report dated 29.10.2004 and the post mortem report, the Doctor opined that the cause of death in this case was organophosphorus poisoning and the head injury which was ante-mortem in nature; and both individually were sufficient to cause death in the ordinary course of nature. While conducting the post mortem, the Doctor found one purse in the pocket of the pant of the deceased. On opening the purse, one Crl. A. No. 369-DB of 2006 -4- five rupee note and 14 slips and pages were found, on which various telephone and mobile numbers were written. One railway pass in the name of Darshan Lal and two applications written by Darshan Lal were also found in the purse. From the railway pass and two applications, the dead body was taken to be that of Darshan Lal. Doctor handed over those documents to the police. On the basis of those documents, father of the deceased was informed by the police, who reached Police Station Sadar Ferozepur and on getting the dead body identified from him, the dead body was handed over to him for cremation. 4. On 20.7.2004, after more than three months of the death of deceased Darshan Lal, his father Hans Raj (PW.2) made a statement (Ex.P1) to the police, which was recorded by ASI Surjit Chand (PW.11) at 7.10 PM, on the basis of which the formal FIR (Ex.P2) was registered against the accused at Police Station Kot Ise Khan. In his statement, Hans Raj stated that he was residing in in village Wazidpur. He had three sons and one daughter. All of them were married and were residing separately from him. His son Darshan Lal (since deceased) was employed in Railway Department. From the last 20-22 years, he was posted at Ludhiana Railway Station. He along with his wife Veero (accused) and two children was residing in his in-laws town Kot Ise Khan. On some occasions, he used to visit village Wazidpur. On 9.4.2004, he was told by some one on telephone that the dead body of his son Darshan Lal was lying at Police Station Sadar Ferozepur. Then he along with his family members went to Police Station Crl. A. No. 369-DB of 2006 -5- Sadar Ferozepur and found that the dead body of his son was lying there. The post mortem of the dead body had already been got conducted at Faridkot. The dead body was handed over to him and they cremated the dead body in their village Wazidpur. Thereafter, on 20.7.2004, his grand- son Pawan Kumar son of Darshan Lal (PW.1) told him that his mother Veero (accused) was having illicit relation with Balwant Singh (accused) of village Kot Ise Khan. The said fact came to the knowledge of his father Darshan Lal, who was restraining them from doing this. On 4.4.2004, it was Sunday and his father had returned to Kot Ise Khan after his duty. On that day, his mother and Balwant Singh in collusion with each other made his father to drink at their house and then killed him by giving blows of wooden batten, due to which much blood had come out of his head and then in the same night, his mother and Balwant Singh covered the dead body of his father with a blanket and took it on scooter of Balwant Singh. Before leaving, both of them had threatened to kill him, in case he told the above incident to any one. Hans Raj further stated that his grand-son was minor and due to fear, he did not tell about the incident to any body. Since Darshan Lal was murdered by his wife Veero and Balwant Singh in collusion with each other and his dead body was thrown away in Ferozepur area in order to dispose of it, therefore, necessary action be taken. 5. According to the prosecution case, on 22.7.2004, Parshotam Lal Sharma (PW.8), who was resident of village Kot Ise Khan and was doing the business of sale and purchase of old cars, produced both the Crl. A. No. 369-DB of 2006 -6- accused before ASI Surjit Chand. It is further the case of the prosecution that before producing those accused before the police, both of them had made extra judicial confession before Parshotam Lal, regarding the committing of murder of Darshan Lal by them. On the same day, both the accused were arrested. 6. On 25.7.1994, during interrogation, accused Balwant Singh made disclosure statement (Ex.P4) that he along with Veero had murdered Darshan Lal by giving blows with wooden batten and after that, they carried away the dead body of deceased Darshan Lal on a scooter. Accused Veero sat on pillion of scooter by holding the dead body of Darshan Lal wrapped in a blanket. When the dead body was being carried away, it was day-break, when they were in the area of village Sandhe-Hassam, they had thrown the dead body there. In pursuance of the disclosure statement, accused Balwant Singh got recovered scooter No. PB-06B-2405, standing near the eastern wall of front room of his residential house at Kot Ise Khan, which was taken into possession vide recovery memo Ex.P5, in the presence of Manohar Lal (PW.4) and HC Surinder Pal Singh. It was stated by accused Balwant Singh that the wooden batten was burnt in fire after the occurrence, therefore, no recovery of the wooden batten, which was used in the crime, could have been made. 7. After completion of investigation, the challan was filed against the accused and charges under Section 302/34 and 201/34 IPC were framed, to which they did not plead guilty and claimed trial. Crl. A. No. 369-DB of 2006 -7- 8. In support of its case, the prosecution examined twelve witnesses. 9. PW.1 Pawan Kumar is the minor son of the deceased Darshan Lal and accused Veero, who witnessed the entire occurrence. PW.2 Hans Raj, father of the deceased, is the complainant in this. Both these witnesses have fully supported the prosecution case. PW.3 Raj Kumar, Assistant in the office of District Transport Officer, Moga, proved ownership of the scooter in the name of Ravinder Singh. PW.4 Manohar Lal is the witness of the disclosure statement (Ex.P4) made by accused Balwant Singh, and witness to the recovery of the scooter. PW.5 Dr. K.K. Aggarwal has proved the opinion given by him regarding the death of Darshan Lal. PW.6 ASI Netar Singh conducted proceedings under Section 174 Cr.P.C. PW.7 Gursewak Singh, Draftsman, proved the site plan (Ex.P15) of the place of occurrence. PW.8 Parshotam Lal Sharma is the witness, before whom the extra judicial confession was allegedly made by the accused. He did not support the prosecution case and was declared hostile. PW.9 HC Zora Singh is the formal witness. PW.10 Ravinder Singh has stated that he had sold the scooter to accused Balwant Singh vide receipt dated 25.12.2003 (Ex.P20). PW.11 ASI Surjit Chand is the Investigating Officer and PW.12 HC Onkar Singh is another formal witness. 10. In their statements under Section 313 Cr.P.C., accused denied all the allegations appearing against them in the evidence led by the prosecution. They pleaded innocence. Accused Balwant Singh took the plea Crl. A. No. 369-DB of 2006 -8- that deceased Darshan Lal was having dispute with regard to the ancestral property with his father and on his asking, he had gone to village Wazidpur in Panchayat to persuade the father of deceased Darshan Lal to give his share of property to him, but they never agreed. For that reason, complainant Hans Raj got this false case registered against him, and the false recovery has been planted upon him by the police. Accused Veero pleaded that her in-laws want to grab all the service benefits of her husband. They asked her to surrender those benefits in favour of her mother-in-law, to which she had refused. For that reason, she has been falsely implicated in this case. 11. The trial court, while relying upon the medical evidence, statements of PW.1 Pawan Kumar and PW.2 Hans Raj, recovery of the scooter and other circumstantial evidence, including the admission of the accused that the deceased along with his wife and children was residing in his house in village Kot Ise Khan, convicted and sentenced both the accused, as indicated above. Against the said judgment, the instant appeal has been filed by the accused. 12. Shri S.P.S. Sidhu, Advocate, amicus curiae on behalf of appellant Balwant Singh and Shri P.K. Ganga, Advocate, amicus curiae on behalf of appellant Veero, have vehemently argued the appeal and submitted that in the present case, the allegation of committing the murder of Darshan Lal by the appellants was made after about 3 ½ months of the day of occurrence, and that too on the basis of the statement of Pawan Crl. A. No. 369-DB of 2006 -9- Kumar (PW.1), minor son of the deceased, who had allegedly seen the occurrence with his own eyes, but for a long period of about 3 ½ months, did not report the matter to his relatives, or to the police or any other person. Learned counsel argued that the learned trial court has convicted both the appellants on the basis of the testimony of this sole witness, whose testimony is highly un-natural and un-reliable. While referring to the various parts of the statement of PW.1 Pawan Kumar, learned counsel argued that if this witness, who was 16 years old at the time of the alleged occurrence, had seen the occurrence, in which his father was killed within his sight, then it was highly improbable that he would not have reported the matter to the police or any one. Learned counsel argued that the explanation furnished by this witness that he did not report the matter to any body because of fear cannot be accepted. It is not the case of the prosecution that this minor witness was kept confined by the appellants. It has come in evidence that during the aforesaid period of 3 ½ months, he was free and was meeting many persons. Learned counsel argued that during this period, he could have told about the alleged occurrence to any person. Therefore, his long silence for a period of 3 ½ months has not been explained, except by saying that he was put under fear. Learned counsel argued that conviction of two persons for the offence of murder of a person on the basis of statement of such a witness is not safe. Learned counsel for the appellants further pointed out that PW.1 Pawan Kumar in his statement has stated that after 14-15 days of the occurrence, he had gone to village Wazidpur and Crl. A. No. 369-DB of 2006 -10- told his grand-father Hans Raj (PW.2) about the occurrence, but the prosecution has not explained as to why immediately thereafter Hans Raj did not report the matter to the police. Even thereafter, he remained silent for about 3 months. This delay has also not been explained by the prosecution. In these circumstances, learned counsel submitted that statements of PW.1 Pawan Kumar and PW.2 Hans Raj are not reliable and trust-worthy and judgment of the learned trial court, which is based on the statements of these two witnesses, is not sustainable. 13. Secondly, learned counsel for the appellants argued that after commission of the offence in village Kot Ise Khan, throwing of the dead body in the area of village Sandhe Hassam also appears to be improbable. According to learned counsel, the distance between Kot Ise Khan and Sandhe Hassam is about 60 Kms. and in the way, there exists 3 major towns and 3 villages. In that situation, it was not possible for two persons to carry the dead body of a man on a scooter and to throw the same at a distance of 60 Kms. in the fields. This fact also creates doubt in the prosecution version. Learned counsel further argued that the deceased Darshan Lal was a drug addict and it is possible that he might have been killed by somebody else and the appellants have been falsely implicated by PW.2 Hans Raj in order to get all the service benefits of his deceased son and to settle the scores with accused Balwant Singh, who at one point of time had accompanied deceased Darshan Lal in the Panchayat. Learned counsel further contended that PW.8 Parshotam Lal has not supported the case of Crl. A. No. 369-DB of 2006 -11- the prosecution and there are contradictions in the prosecution version with regard to the recovery of scooter. Therefore, conviction of the appellants is un-sustainable, as the prosecution has failed to prove the alleged guilt of the appellants beyond a shadow of reasonable doubt. 14. On the other hand, learned counsel for the respondent-State argued that both the appellants have been rightly convicted by the trial court, while relying upon the statements of PW.1 Pawan Kumar and PW.2 Hans Raj and other connecting evidence, available on the record. She submitted that there is no illegality or perversity in the judgment of the learned trial court. Therefore, conviction and sentence of the appellants for committing the murder of Darshan Lal is not liable to be interfered. 15. We have heard the arguments of learned counsel for the parties and have minutely gone through the record of the case. 16. Deceased Darshan Lal was working in Indian Railways and was posted at Ludhiana. He was having two children, one son - Pawan Kumar aged about 16 years and one daughter – Neelam, aged about 14 years. He was living with his family in village Kot Ise Khan. Lateron, he had shifted in the house of accused Balwant Singh, situated at Date Wala Road, Kot Ise Khan, and started living there with his family. As per the evidence on the record, the deceased had attended his office upto 4.4.2004. Thereafter, on 8.4.2004, dead body of an unidentified person was found in the fields of one Nirmal Singh in the ara of village Sandhe Hassam. On 9.4.2004, the post mortem of the deceased was conducted by Dr. K.K. Crl. A. No. 369-DB of 2006 -12- Aggarwal (PW.5). The dead body was putrefied and was foul smelling. Left eye was closed and right was missing. Soft tissues were missing over face mostly. Right hand was missing, maggots were crawling all over the body. During the post mortem examination, the Doctor found one purse in the pocket of the pant of the deceased, and from the various documents found in that purse, the dead body was taken to be that of Darshan Lal. On information given to his father Hans Raj (PW.2), he came to Police Station Sadar Ferozepur and identified the dead body as of his son. Lateron, the dead body was handed over to him for cremation. On 20.7.2004, after more than three months of the death of Darshan Lal, the FIR was registered against both the accused on the basis of the statement made by Hans Raj, father of the deceased. He made the said statement on the basis of the fact disclosed to him by his grand-son Pawan Kumar to the effect that that his father was murdered by his mother Veero and Balwant Singh in their house in the mid-night of 4.4.2004. During investigation, the police arrested both the accused persons and in pursuance of his disclosure statement, accused Balwant Singh got recovered the scooter, which was used in the crime. After filing of the challan, both the accused were tried for the offences under Sections 302/201/34 IPC for committing murder of Darshan Lal and for causing disappearance of evidence intentionally to screen themselves. After trial, they have been convicted for the said offences. 17. The learned trial court has convicted both the accused, while relying upon the testimony of PW.1 Pawan Kumar, who was minor son of Crl. A. No. 369-DB of 2006 -13- the deceased and accused Veero, as well as the statement of PW.2 Hans Raj, father of the deceased. In addition to this, the learned trial court has also relied upon the medical evidence, which has corroborated the ocular version given by PW.1 Pawan Kumar, recovery of the scooter at the instance of accused Balwant Singh in pursuance of his disclosure statement and the conduct of the accused after committing the crime, as link evidence, which further corroborates the prosecution case. 18. After going through the evidence led by the prosecution in support of its case and the judgment of the learned trial court, we do not find any infirmity or perversity in the impugned judgment of conviction and the order of sentence, passed by the trial court. 19. Learned counsel for the appellants vehemently assailed the conviction of the appellants and argued that the trial court has convicted both the appellants for committing the murder of Darshan Lal, only on the basis of the sole testimony of the alleged eye witness Pawan Kumar (PW.1), who was minor at the time of the alleged occurrence, but the testimony of this witness is not trust-worthy and reliable, because the prosecution has failed to explain as to why this witness remained silent for about 3 ½ months and did not disclose the alleged occurrence to any person. Learned counsel argued that when the evidence of the sole eye witness does not inspire confidence, then the benefit of doubt must be given to the accused. We have examined this contention of learned counsel for the appellants and have minutely gone through the statement of PW.1 Pawan Kumar to Crl. A. No. 369-DB of 2006 -14- ascertain as to whether the statement of this witness, who is alleged to have seen the occurrence, is credible, reliable and trust-worthy. It is well settled that on the basis of testimony of a single eye witness, conviction can be recorded, provided the Court is satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base conviction solely on the basis of testimony of that witness. In doing so, the Court must test the credibility of the witness by referring to the quality of his evidence. The evidence must be free from any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording conviction solely on the basis of testimony of a single witness, as has been held by the Hon'ble Supreme Court in Bhimappa Chandappa Hosamani v. State of Karnataka, 2006 (4) Crimes 77 (SC). 20. In light of the aforesaid principle, we have examined the testimony of PW.1 Pawan Kumar, who is the son of deceased Darshan Lal and accused Veero. It is undisputed position that at the time of the alleged occurrence, the deceased along with his wife Veero (accused) and children, including PW.1 Pawan Kumar, was residing in the house of accused Balwant Singh (this fact has not been disputed by accused Balwant Singh in his statement under Section 313 Cr.P.C.). Therefore, presence of PW.1 Pawan Kumar in the house at the time of the alleged occurrence cannot be doubted. Being a minor child of 16 years, his presence in the house at the night was most natural. In his statement before the Court, he has given the Crl. A. No. 369-DB of 2006 -15- detailed account of the occurrence. He has stated that accused Veero, who is his mother, initially was running a grocery shop at village Kot Ise Khan. Accused Balwant Singh used to come to her shop for making purchases. He developed illicit relations with her. Thereafter, accused Balwant Singh, under the assurance that he would give a plot of four marlas to them, had taken the family to his house at Date Wala Road, Kot Ise Khan, and gave one room to the family, where the occurrence had taken place. He further stated that accused Balwant Singh and Veero used to sleep on one bed, to which he and his sister were objecting. As and when, they were objecting, accused Balwant Singh used to give threats to them. Being fed up with such relations, his sister went to his maternal aunt (Massi). He further stated that when his father visited the house, accused Balwant Singh and Veero were