-1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No. 499-DB of 2002 Date of decision:- 22.12.2010 Baldev Singh son of Sohan Singh, resident of village Khairdin Ke, Tehsil Tarn Taran (Amritsar). ......Appellant Vs State of Punjab. ......Respondent CORAM:-HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. Pritam Saini, Advocate (Amicus Curiae), for the appellant. Mr. Rajesh Bhardwaj, Additional Advocate General, Punjab, for the respondent - State. * * * * RANJAN GOGOI, J (ORAL) This appeal is directed against the judgement and order dated 28.05.2002 passed by the learned Sessions Judge, Amritsar in Sessions Case No. 11 of 2000 by which the accused/appellant has been convicted under Section 302 of the Indian Penal Code. The accused/appellant has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for a period of three months more. Aggrieved by the aforesaid judgement and order of conviction and -2- the sentence passed this appeal has been filed. The prosecution case, in short, is that on 18.09.1999 PW10, Sub Inspector Hardev Singh, Station House Officer, Police Station Jhabal alongwith a Police party was engaged on patrol duty at bus-stand Khairdin Ke. At that time, PW8, Surjit Singh, made a statement before PW10 to the effect that his brother i.e. deceased, Sardool Singh, had been residing with the accused/appellant and his family for the last four years. According to the complainant/first informant, his brother had developed illicit relations with Sukhjinder Kaur wife of the accused/appellant, Baldev Singh. However, the accused/appellant, Baldev Singh and the deceased, Sardool Singh, used to treat each other as brothers. According to the complainant, he alongwith his other brother Balwinder Singh used to come to meet their deceased brother in the house of the accused/appellant. Accordingly, on 17.09.1999, PW8 and his brother Balwinder Singh, had come to meet the deceased in the house of the accused/appellant. After dinner and during a conversation, according to the first informant, there was altercation between the accused/appellant and the deceased as a result of which the accused/appellant had threatened to kill the deceased. Thereafter, according to the complainant, the accused/appellant went upstairs to sleep whereas the complainant, his brother Balwinder Singh and the deceased, Sardool Singh, had slept in the court-yard of the house. At about 4.30 AM, the complainant had asked his brother Balwinder -3- Singh to prepare to return to their village but his brother Balwinder Singh had told him that they will proceed after sometime as it was still dark. According to the complainant, at that time, the accused/appellant came down and taking a spade from the room had inflicted injuries with the said weapon on the neck of the deceased whereafter the accused/appellant fled away from the place of occurrence after throwing the spade. After the aforesaid statement (Ex. PF) was recorded, PW10, Sub Inspector Hardev Singh, made his endorsement thereon and it was sent to the Police Station for registration of formal First Information Report. After registration of the case, Sub Inspector Hardev Singh came to the place of occurrence and arranged for the inquest of the deceased and had also sent the dead-body for post- mortem examination. Rough site plan (Ex. PC) of the place of occurrence was prepared. Statements of the persons acquainted with the incident were recorded. Thereafter, at the conclusion of the investigation challan was filed against the accused/appellant under Section 302 of the Indian Penal Code. The offence being exclusively triable by the Court of Sessions, learned Judicial Magistrate 1st Class, Tarn Taran by order dated 21.01.2000 committed the case for trial to the Court of Sessions at Amritsar. In the trial Court, charge under Section 302 of the Indian Penal Code was framed against the accused/appellant which being read-over and explained to him, the accused/appellant pleaded not guilty and claimed to be tried. In the -4- course of the trial prosecution examined ten witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code of Criminal Procedure. One Mandeep Kaur, daughter of the deceased, was examined as DW1. Thereafter, the learned trial Court on consideration of the evidence and materials on record had passed the impugned judgement of conviction and had imposed the sentence as already noticed. Aggrieved, this appeal has been filed. Of the ten witnesses examined by the prosecution, it will be necessary for the Court to take specific notice of the evidence of PW1, Chandeep Singh; the evidence of Dr. Shamsher Singh, PW3, who performed the autopsy and the evidence of PW8, Surjit Singh i.e. the complainant. PW9, Inspector Harbhajan Lal and PW10, Sub Inspector Hardev Singh, were associated with the investigation of the offence. The evidence of DW1, Mandeep Kaur, will also have to be scrutinized with due care and caution by the Court. PW1, Chandeep Singh, is the son of the accused/appellant. He was 09 years old at the time of the recording of his deposition and, therefore, he must have been about 08 years of age at the time of the alleged occurrence. According to PW1, after they had finished their dinner on 17.08.1999, his father i.e. the accused/appellant had a quarrel with the deceased and thereafter his father had gone to the roof of the house to sleep. According to PW1, he was sleeping with the deceased on that night. This witness had deposed that at about 4.30 AM, his father came down from the roof and gave a 'kassi' -5- blow to the deceased. PW1 had further deposed that because of the injury blood was oozing out from the body of the deceased and some of the blood had fallen on his shirt which was handed over to the Police. PW3, Dr. Shamsher Singh, had performed the post-mortem of the deceased on 18.09.1999. Deposing from the post-mortem report which was exhibited as Ex. PJ, PW3 had stated that he had found the following injuries on the body of the deceased at the time of post-mortem examination:- “1) An incised wound about 2 ¼” x 1/ 2” in size extending horizontally from the neck. That wound was having deep penetration to the extent that trachea was also cut alongwith carotid and external jugular vessels. That wound was 1/ 2 inch below the Adam's apple. Clotted blood was also present in the trachea. 2) Incised wound present on the neck. It was horizontally placed above the Adam's apple about half inch. The wound was 5 inch x 1/ 2 inch in size and was 1 ½ inch below the chin. The skin underneath facia, trachea was also cut alongwith carotid and jugular vessels. Clotted blood was also present in the trachea.” According to this witness, cause of death was due to injuries 1 and 2 which were ante-mortem in nature and were sufficient to cause hemorrhage, shock and respiratory failure, ultimately, leading to death. PW8, Surjit Singh is the complainant. This witness in his statement made in Court had reiterated the statement made by him -6- before the Police which was recorded as Ex. PF. In his evidence, PW8 had specifically stated that the accused/appellant was present in the house in the night of the occurrence and that the deceased had developed extra-marital relations with the wife of the accused/appellant. He had further stated that the deceased used to stay in the house of the accused/appellant alongwith the family of the accused/appellant. In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused/appellant denied commission of the offence alleged against him and had specifically stated that on the day of the occurrence he had gone to Manawala and was not present in the house at the time when the incident took place. DW1, Mandeep Kaur, is the daughter of the accused/appellant. According to this witness, on 17.09.1999, her father i.e. the accused/appellant had gone to cut trees in village Manawala and had not returned home. DW1 has specifically deposed that on earlier occasions also her father used to go to cut trees and remain absent from the house at night. According to this witness, it is incorrect that the deceased had developed any illicit relations with her mother and in fact PW8, Surjit Singh and Balwinder Singh had such illicit relations with her mother. This witness had deposed that in the evening of the day of occurrence when her father i.e. the accused/appellant was out of the house, PW8, Surjit Singh and Balwinder Singh had come to their house and -7- they were asked by the deceased as to why they had come when the owner of the house i.e. the accused/appellant was away. This witness has further deposed that the deceased as well as PW8, Surjit Singh and Balwinder Singh had taken their meals and in the course thereof they had quarreled amongst themselves. This witness had specifically deposed that PW8, Surjit Singh and Balwinder Singh had threatened the deceased that if he opposed their presence in the house they would kill him. According to this witness, thereafter, the deceased, PW8 and Balwinder Singh went to sleep whereas she was sleeping in one cot alongwith her brother Chandeep Singh (PW1). In the middle of the night hearing shrieks they got up and found that PW8, Surjit Singh and Balwinder Singh had killed Sardool Singh (deceased) and were threatening them that if they reported the matter to the Police they would be dealt in a like manner. This witness had further deposed that PW8, Surjit Singh and Balwinder Singh took them to their village and that the Police had got her statement recorded before the Judicial Magistrate after giving her beatings and putting her under threat that if she did not depose before the Magistrate as dictated she would be killed. In her cross- examination, this witness has specifically stated that the story of illicit relations between the deceased and her mother is incorrect and that the deceased was welcomed in their house. The narration of the evidence of the prosecution, the core of which has been noticed above, would go to show that the -8- prosecution had examined two witnesses i.e. PW1 and PW8 as eye- witnesses to the occurrence. PW1, Chandeep Singh, is a child witness who was about 08 years old at the time of the incident. PW8, Surjit Singh, is a brother of the deceased and though he claims to be an eye-witness to the act of murder of the deceased by the accused/appellant, the defence case is that it is PW8 alongwith Balwinder Singh who had killed the deceased and it is the aforesaid two persons who had developed illicit relations with the wife of the accused/appellant which was opposed to by the deceased. The above two cardinal aspects of the case will have to be kept in mind while appreciating the evidence of the two eye-witnesses on whose evidence the prosecution case entirely rests. In so far as the evidence of a child witness is concerned, the law does not prohibit reliance on such evidence so long the materials on record indicate that the version unfolded by the child witness is a reliable version and that the child who had been examined as a witness is in a position to comprehend the facts surrounding the incident on which he is to depose. In the present case, before recording the evidence of PW1, the learned trial Court had make every endeavour to ensure that PW1 was in a position to so understand and to comprehend the issues involved. On such satisfaction being reached, the evidence of PW1 was recorded. We approve the manner in which the trial Court has proceeded in the present case in so far as the evidence of PW1 is concerned. -9- However, on scrutiny of the evidence, we find that the evidence of PW1 stands contradicted on a very material issue. It has already been noticed that PW1, in his deposition, had stated that he was sleeping together with the deceased on the night of the occurrence. This is how PW1 explains the spilling of blood of the deceased on his shirt which was handed over to the Police. However, from the evidence of DW1, it transpires that in the night of the occurrence PW1 had slept in the same cot as DW1. As the two versions are opposed to each other, the correctness of either has to be judged with reference to some independent material on record. In the present case, such independent material is available. The site plan (Ex. PQ) prepared by PW10 indicates the location of the cots on which the different persons had slept. The diagram contained in the said site plan indicates that while the cot where the wife of the accused/appellant was sleeping is shown against the letter 'E', the cot where the children of the accused/appellant i.e. PW1 and DW1 were sleeping is shown against the letter 'F' and the cot where the accused/appellant was sleeping or the deceased was sleeping is shown against the letter 'A'. From the site plan it is, therefore, evident that the deceased was sleeping on his own cot whereas the two children of the accused/appellant i.e. PW1 and DW1 were sleeping in the cot shown against the letter 'F'. The aforesaid vital piece of evidence introduced by the prosecution itself belies the testimony of PW1 and, therefore, the Court will have to look for -10- some corroboration of the evidence of PW1. The corroborative evidence necessary to give the required weightage to the evidence of PW1 can come only from one source, namely, the evidence of PW8. However, while appreciating the evidence of PW8, the Court will have to keep in mind that the case of the defence is that it is PW8 alongwith Balwinder Singh who had developed illicit relations with the wife of the accused/appellant and the same being opposed to by the deceased, PW8 and Balwinder Singh had murdered the deceased in the night of the occurrence. The above facts deposed to by DW1 would lead the Court to arrive at the conclusion that the evidence of PW8 cannot be considered to be a sound basis for corroboration of the evidence of PW1. On its own, the said evidence of PW8 stands on an equally weak footing so as to disincline the Court to accept the same as a sound and safe basis for the conviction of the accused/appellant. Coupled with the above is the evidence of DW1 who is the daughter of the accused/appellant. The details of the evidence of DW1 have already been noticed. The version narrated by DW1, in the absence of any material contradictions or any vital element of doubt, will cause a serious dent in the version advanced by the prosecution. The only objection to the acceptability of the evidence of DW1 is that in her previous statement recorded under Section 164 of the Code of Criminal Procedure, DW1 had given a version supporting the prosecution case. However, in her deposition, DW1 -11- has explained that her initial statement recorded under Section 164 of the Code of Criminal Procedure was at the dictation of the Police who had threatened her. She had further deposed that she had informed her Counsel about the said matter and had requested her Counsel to take necessary legal steps in this regard. Such steps were, however, not taken. In the light of the aforesaid part of the evidence of DW1, we are inclined to take the view that the contradiction in the evidence of DW1 with reference to her previous statement stands adequately explained. There is another unusual aspect of the case which cannot escape the Court's notice while adjudging the culpability of the accused/appellant. The prosecution alleges that the deceased had developed illicit relations with the wife of the accused/appellant for over a year. Yet the deceased and the accused/appellant were living together and in fact, according to the prosecution, they used to treat each other like brothers. The defence version, on the other hand, is that the story of such illicit relations between the deceased and the wife of the accused/appellant is incorrect and it is PW8 and Balwinder Singh who had developed such illicit relations with the wife of the accused/appellant. Taking into account the normal course of human conduct the Court finds the version of the prosecution to be inherently incredible and unbelievable which would be a strong reason for the Court to take the view that in the present case the liability of the accused/appellant for the offence of -12- murder is not established beyond reasonable doubt. In view of the discussions that have preceded, we are inclined to take the view that the accused/appellant is entitled to the benefit of the reasonable doubt in the matter of his culpability. The appeal, therefore, is allowed and the conviction and the sentence ordered by the learned trial Court is set aside. The accused/appellant is presently on bail. His bail bond shall stand discharged. (RANJAN GOGOI) JUDGE (AJAY TEWARI) 22.12.2010 JUDGE Amodh