Crl.A.No.299-DB of 2005 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. Crl.A.No.299-DB of 2005 Date of decision: March 25, 2008 Dinesh Kumar ...Appellant vs. State of Haryana ..Respondents CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE SHAM SUNDER. --- Present: Mr.Vinod Ghai,Advocate, for the appellant Dinesh Kumar and Amicus curiae for Balkar Singh Appellant. Mr.J.S.Toor, Addl. Advocate General Haryana, for the Stte. -- J.S.KHEHAR,J. The instant appeal has been filed against the order of Additional Sessions Judge,Ambala, in Sessions Case No. 7 of 2002 decided on 1.4.2005. By the impugned judgment, out of the three accused only two, namely, Balkar Singh and Dinesh Kumar alias Goldy have been held guilty of having committed the murder of Baljinder Singh and have accordingly been convicted under Section 302 read with section 34 of the Indian Penal Code. Additionally, the accused Balkar Singh has been held guilty of the offence under Section 25 of the Indian Arms Act,1959 and has accordingly been convicted for the same. It has however, been concluded that the guilt of the accused Jagtar Singh was not proved from the evidence produced Crl.A.No.299-DB of 2005 2 by the prosecution. He was accordingly acquitted of the charges levelled against him. By a separate order passed on 1.4.2005, the accused/appellants Balkar Singh and Dinesh Kumar have been sentenced to rigorous imprisonment for life and to pay a fine of Rs.200/- each under Section 302 read with 34 of the Indian Penal Code. In default of payment of fine, they have been ordered to undergo further imprisonment for a period of two months each. Additionally, Balkar Singh has been sentenced rigorous imprisonment for a period of three years and to pay a fine of Rs.100/- under section 25 of the Arms Act 1959. In default of payment of fine, he has been ordered to undergo further rigorous imprisonment for a period of one month. It has also been directed that the sentences awarded to the accused/appellant Balkar Singh would run concurrently. As against the conviction of the accused/appellant Dinesh Kumar alias Goldy, he has filed Crl.A.No. 299-DB of 2005. So far as Balkar Singh is concerned, he has contested his conviction through a separate criminal appeal namely, Crl.A.No.347-DB of 2005. The State of Haryana has also preferred an independent appeal so as to contest the determination rendered by the trial Court whereby it has acquitted Jagtar Singh i.e. Crl.A.No.178-DBA of 2006. For the same purpose for which the State of Haryana has preferred an appeal, the complainant Jarnail Singh has preferred Crl.Revision No.466 of 2006 contesting the acquittal of Jagtar Singh. All the aforesaid three appeals and the criminal revision are being disposed of by this common order, as the same have arisen out of one and the same order. The prosecution version of the incident is based on the statement of Jarnail Singh PW4 (the brother of the deceased Baljinder Crl.A.No.299-DB of 2005 3 Singh) made to ASI Dharam Pal PW12 on 22.11.2001. On the basis of the aforesaid statement, First Information Report Bearing No.128 was registered at Police Station Panjokhra in District Ambala on 22.11.2001 at 11.30 A.M. As per the complaint of Jarnail Singh PW4, he has two other brothers. The name of his elder brother is Gurmail Singh,whereas, the name of his younger brother is Baljinder Singh. Baljinder Singh is stated to have been working as a Driver at Calcutta for the last three years. It is alleged that he was about 25 years of age. Baljinder Singh, the complainant's younger brother, is stated to have come to village Fatehgarh from Calcutta 4/5 days before “Diwali”. On the day preceding the date when the complaint was made i.e., on 21.11.2001 the accused/appellant Dinesh Kumar alias Goldy a resident of village Fatehgarh who was employed in the Army had come to the village on leave. Dinesh Kumar came to the house of the complainant Jarnail Singh PW4, to call his brother Baljinder Singh. Dinesh Kumar took Baljinder Singh to the house of Sheo Ram in the same village. From the house of Sheo Ram, the younger son of Sheo Ram i.e. Pilla came to the residence of the complainant Jarnail Singh PW4 and handed over to him a trouser which he had given to a tailor for stitching. The said trouser had been collected by his brother Baljinder Singh and got delivered through the youngest son of Sheo Ram i.e. Pilla to the complainant Jarnail Singh PW4. While delivering the trouser to the complainant Jarnail Singh PW4, the aforesaid Pilla told the complainant that Baljinder Singh was sitting at his house along with the accused/appellant Dinesh Kumar alias Goldy and that they were having meat and drinks. At about 7:00 P.M., the complainant Jarnail Singh PW4 claims, that he went to the house of Sheo Ram where he found his brother Crl.A.No.299-DB of 2005 4 Baljinder Singh in the “chaubara” in the company of Sheo Ram, Dinesh Kumar alias Goldy and Balkar Singh. They were all enjoying drinks. They were also cooking meat on a stove. The complainant Jarnail Singh PW4, claims that he asked his brother Baljinder Singh to come back with him, whereupon, Sheo Ram promised to send him after some time. Accordingly, the complainant came back to his residence by himself. At his residence he narrated the aforesaid facts to his mother Gurdevi PW6, who after waiting for half an hour went to the “chaubara” of the house of Sheo Ram to fech her son Baljinder Singh. When Gurdevi PW6 reached the “chaubara”, she again found the same persons enjoying liquor. She also asked her son Baljinder Singh to come back with her, whereupon, Sheo Ram again stated that he would send Baljinder Singh back after some time. Gurdevi PW6 is stated to have made further trips to the “chaubara” of the house of Sheo Ram, to bring back her son Baljinder Singh, but on all occasions she was sent back with the same answer. When Gurdevi PW6 visited the “chaubara” of the house of Sheo Ram yet again, and found her son Baljinder Singh missing, she was told by Sheo Ram that Baljinder Singh, Balkar Singh and Dinesh Kumar alias Goldy had all gone out and would return after some time. Thereafter, Gurdevi PW6 went to the house of Dinesh Kumar alias Goldy at about 9.30 P.M., where she was informed by the mother of Dinesh Kumar alias Goldy that her son Dinesh Kumar alias Goldy, had gone to the house of Sheo Ram, and had not returned. At this Gurdevi PW6 returned back to the house of the complainant Jarnail Singh PW4. As per the statement of Jarnail Singh PW4, his brother Baljinder Singh did not return back during the whole night. The complainant visited the house of Sheo Ram early in the morning at about 6.30 A.M., and inquired about his Crl.A.No.299-DB of 2005 5 brother Baljinder Singh from Sheo Ram. Sheo Ram informed the complainant Jarnail Singh PW4 that Balkar Singh, Dinesh Kumar alias Goldy and Baljinder Singh had not come back during the night. Thereafter, Balwant Singh son of the complainant's uncle(elder brother's son) informed the complainant Jarnail Singh PW4, that he had found the dead body of complainant's brother Baljinder Singh at the edge of the orchard of Sajjan Singh. On receipt of the aforesaid information, Amrik Singh, Gurmail Singh PW10 (complainant's elder brother) and Balwant Singh accompanied the complainant Jarnail Singh PW4 to the spot, where they found the dead body of his brother Baljinder Singh lying in a pool of blood, with knife injuries on his stomach, waist, neck and hips. According to the complainant Jarnail Singh PW4, he suspected that his brother Baljinder Singh had been murdered by Dinesh Kumar alias Goldy, Balkar Singh and Sheo Ram intentionally, after making him consumed liquor. He, therefore, requested that action be taken against the suspects. After recording the statement of Jarnail Singh PW4, ASI Dharam Pal PW12 left for the place of occurrence at 11 A.M. At the place of occurrence, he prepared the inquest report Exhibit PJ, recorded the statements of the persons present at the place of occurrence, and lifted the blood stained earth, one “jootti” one compass, and one ring of steel, were taken into possession vide recovery memo Exhibit PB. All the articles taken into possession were converted into parcels and were sealed. ASI Dharam Pal PW12 then sent the dead body of Baljinder Singh for post mortem examination to the civil Hospital Naraingarh. He then prepared the rough site plan of the place of occurrence Exhibit PQ. He also recorded the statements of Amrik Singh, Balwant singh as well as the supplementary Crl.A.No.299-DB of 2005 6 statement of Jarnail Singh PW4 and Gurdevi PW6 under Section 161 Code of Criminal Procedure.The investigation of the case was then taken up by SI Jaipal PW14. On 24.11.2001, after having arrested them he interrogated the accused/appellants Jagtar Singh, Balkar Singh and Dinesh Kumar alias Goldy. On 25.11.2001 on police interrogation in the presence of Baldev Singh and Jarnail Singh PW4, the accused Jagtar Singh suffered a disclosure statement Exhibit PE to the effect that the knife with which the injuries were inflicted on the body of the deceased Baljinder Singh had been thrown by him in the bushes of the Tangri canal, and that, he could get the same recovered. Likewise, the accused/appellant Balkar Singh on interrogation suffered a disclosure statement Exhibit PD that he had concealed the knife and the clothes stained with blood near the Tangri canal, which he too could get recovered. This disclosure statement was also made in the presence of Jarnail Singh and Baldev Singh. Likewise Dinesh Kumar alias Goldy suffered a disclosure statement Exhibit PC that the deceased Baljinder Singh along with the accused/appellant Balkar Singh and Jagtar Singh had gone to the dispensary where Balkar Singh was murdered by the aforesaid Jagtar and Balkar Singh with knives. The accused Balkar Singh led the police party and got recovered a knife and clothes in respect whereof recovery memo Exhibit PL/1 was prepared. The said recovery memo was attested by Ranjit Singh and Kuldip Singh. Thereafter, the accused/appellant Jagtar Singh got recovered another knife and clothes in respect whereof recovery memo Exhibit PM/1 was prepared. The same was also attested by Ajit Singh and Kuldip Singh. On 13.12.2001 SI Jai Pal PW14 produced the recovered knife before the doctors conducting the post mortem examination of the dead body Baljinder Singh so as to take their Crl.A.No.299-DB of 2005 7 opinion. Whereupon, the doctors opined that the injuries could have been caused by the said knives. On the completion of the investigation and other police formalities, a challan was presented in the court of Additional Chief Judicial Magistrate, Ambala. The Additional Chief Judicial Magistrate,Ambala, by his order dated 16.2.2002, arrived at the conclusion that a prima facie case was made out against the accused under Sections 302/120-B read with Section 34 of the Indian Penal Code, and under Section 25 of the Indian Arms Act, 1959. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Additional Chief Judicial Magistrate, Ambala, by his order dated 16.2.2002, committed the case for trial to the Court of Session. On 23.4.2002 the Additional Sessions Judge, Ambala, charged the accused Balkar Singh and Jagtar Singh for having caused the death of Baljinder Singh in persuance of a common agreement for the commission of the said crime, and thereby, committed an offence punishable under Section 120-B of the Indian Penal Code. Secondly, all the accused were charged of having intentionally and unlawfully caused the death of Baljinder Singh by giving him knife blows, and therefore, for having committed the offence punishable under section 302 read with section 34 of the Indian Penal Code. Additionally Balkar Singh who had been found in conscious possession of a knife without any license or permit was, charged for having committed the offence punishable under section 25 of the Indian Arms Act, 1959. Lastly, the accused Jagtar Singh was also found in possession of a knife without license or permit, and thereby,charged for Crl.A.No.299-DB of 2005 8 having commaitted the offence punishable under Section 25 of the Indian Arms Act, 1959. The accused were then confronted with the charges framed against them. They pleaded not guilty and claimed trial. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarized hereunder. The statement of Constable Gian Singh was recorded as PW1. His statement is of a formal nature, and to the effect, that he handed over the special report in this case to the Ilaqa Magisdtrate at his residence at 7 P.M. on 22.11.2001. The statement of Jaspal Singh was recorded as PW2. He was summoned to the place of occurrence by SI Jaipal PW14, to take photographs of the dead body. He produced photographs Exhibits P1 to P11 and their negatives exhibits P12 to P22. The prosecution then produced Puran Chand PW3. He tendered into evidence his affidavit Ex.PW3/A, a perusal whereof reveals that he had taken the parcels of the case property to the Malkhana at the Police Station. The statement of the complainant Jarnail Singh was recorded as PW4. During the course of his deposition the complainant Jarnail Singh PW4 reiterated the factual version narratedby him when he made his complaint to ASI Dharam Pal PW12 on 22.11.2001. The statement of HC Hukam Singh was recorded as PW5. On the basis of the complaint made by Jarnail Singh PW4, he had formally recorded the First Information Report bearing No.128 dated 22.11.2001, Exhibit PA/1, in this case. The statement of Gurdevi i.e. the mother of the deceased Baljinder Singh (as also the mother of the complainant Jarnail Singh PW4) was recorded as PW6. She supported the narration of Jarnail SinghPW4 on material particulars. In Crl.A.No.299-DB of 2005 9 addition, she disclosed the motive at the hands of the accused/appellants for having committed the murder of her son Baljinder Singh. According to Gurdevi PW6 the motive behind the murder of her son was an incident which had taken place three years before the occurrence.It was alleged that Baljinder Singh had caught hold of the hand of the sister of Jagtar Singh, whereupon, the deceased Baljinder Singh was sent away to Calcutta. The statement of Balkishan Patwari was recorded as PW7. He had prepared the scaled site plan Ex.PG with its marginal notes. The statement of Dr. S.K.Singhal, Medical Officer, Civil Hospital Naraingarh was recorded as PW8. Dr.S.K.Singhal PW8 had conducted the post mortem examination on the dead body of Baljinder Singh on 23.11.2001, along with, Dr.Mohinder Singh. According to the statement of Dr.S.K.Singhal PW8, the dead body of Baljinder Singh bore the following injuries:- “1. Two stab wound of wearing size of left upper arm. 2. Three stab wounds of wearing sizes on the left side of face. 3. One stab wound 5cm x 2cm on the left side of chest just below the left nipple (firstly in place of 5 digit 3 has been mentioned, which was later corrected to 5 Cms) Left verticle of the heart was punctured and pericardial cavity was full of blood. 4. Intestine and omentum were seen coming out of a wound 5cm x 5cm just below the epigastrium. 5. A stab wound 4cm x 4cm placed about 5 inches laterally to the left of umbalicus, out of which torn muscle and omentum were coming out. 6. Two contusions of wearing size on the left upper arm. 7. Stab wound 5cm x 4 cm on the back of middle of right thigh. 8. Stab wound 3cm x 1cm x skin deep placed transfersely on the front of left knee. 9. Multiple stab wounds of wearing sizes and depths with Crl.A.No.299-DB of 2005 10 clotted blood on the front of chest abdomen. Left lateral side of chest and left side of back, totalling 26 in number and none reaching the vital organs. 4th and 5th ribs were found fractured, plura, layrings tracheam lungs were healthy. Paracardium and heart were ruptured as described..” In the opinion of Dr.S.K.Singhal PW8, the cause of death of Baljinder Singh was haemorrhage and shock due to the injuries on his vital organs i.e. heart, intestines and omentun. He also opined, that all the injuries on the body of Baljinder Singh were antimortem in nature, and sufficient in the ordinary course of nature to cause death. On being shown the knives recovered consequent upon the disclosure statements made by the accused/appellants, Dr.S.K.Singhal PW8, further opined, that the injuries on the dead body of Baljinder Singh could have been caused by the said knives. The prosecution then produced Ranjit Singh as PW9. He was a witness to the recoveries made consequent upon the disclosure statements at the hands of the accused referred to above. The statement of Gurmail Singh was recorded as PW10. It would be pertinent to mention that Gurmail Singh PW10 is the elder brother of the complainant Jarnail Singh PW4, as also, the elder brother of the deceased Baljinder Singh. As per the narration of Gurmail Singh PW10, he had seen his brother Baljinder Singh standing in the verandah of the dispensary on 21.11.2001 at about 8 P.M., talking to the accused. All of them are stated to have been smelling of alcohol. He asked his brother to accompany him back to his house. However, the accused/appellant Dinesh Kumar alias Goldy had told Gurmail Singh PW10 that they had some work to do. Accordingly Gurmail Singh PW10, had left for his house, without his brother Baljinder Singh. He claims to have gone Crl.A.No.299-DB of 2005 11 to his house and slept during the night. As per Gurmail Singh PW10, he was told about the occurrence on the following morning at about 7.30 A.M.. He then claims to have accompanied his brother Jarnail Singh PW4 along with the Sarpanch, to the fields, where the dead body of his brother Baljinder Singh was found. Whereafter, Jarnail Singh PW4 along with the Sarpanch had gone to the Police Station to record his statement. The statement of ASI Rameshwar Dass was recorded as PW11. He along with Constable Nafe Singh had taken the dead body of Baljinder Singh to the Civil Hospital Naraingarh. The Statement of ASI Dharam Pal was recorded as PW12. He affirmed having recorded the complaint of Jarnail Singh PW4 on 22.11.2001. He also narrated the other details of the investigation of the case conducted by him. The statement of SI Ravinder Kumar was recorded as PW13. His statement is of a formal nature. The statement of the Investigating Officer SI Jaipal was recorded as PW14. He disclosed the details of the investigation carried out by him, as also, the particulars of the disclosure statement made by the accused/appellant, as well as, the recovery of the knives and clothes consequent upon the accused having led the police party to the place from where the recoveries were made. The recoveries made were recorded in the nature of recovery memos details in this behalf have already been narrated above. The prosecution evidence was closed after recording the statements of the aforesaid witnesses. Statements of all the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure. The accused/appellant Dinesh Kumr alias Goldy on being confronted with the incriminating evidence appearing on the record which was put to him denied the same. In his defence, he inter-alia submitted as under:- Crl.A.No.299-DB of 2005 12 “ I am innocent. I was falsely implicated in the case. Murder of Baljinder Singh was blind murder, not witnessed by any body. My signatures were taken on blank papers by the police, which were lateron converted into documents. I never made any disclosure statement before the police regarding murder of Baljinder Singh. The witnesses are interested one. I had no enmity with the deceased, nor any connection with the co- accused being in defence.” Balkar Singh having denied the incriminating evidence appearing on the record of the case which was put to him asserted that he was innocent and that a false case had been planted against him due to party faction in the village. He also asserted that no recovery had been effected, from him, and that he had no enmity with the deceased Balkar Singh nor did he have any connection with the other co-accused. Insofar as the accused Jagtar Singh is concerned, he denied the incriminating evidence in the case put to him. He then adopted the same posture as was adopted by the accused Balkar Singh. The accused/appellants did not lead any evidence in their defence, in spite of the fact that they were afforded an opportunity of doing so. The Additional Sessions Judge, Ambala delivered the judgment in Sessions Case No.7 of 2002 on 1.4.2005. The accused/appellants Balkar Singh and Dinesh Kumar alias Goldy were held guilty of having committed the murder of Baljinder Singh, and were accordingly, convicted under Section 302 read with Section 34 of the Indian Penal Code. Additionally the accused/appellant Balkar Singh was held guilty and convicted under Section 25 of the Indian Arms Act, 1959. So far as, accused Jagtar Singh is Crl.A.No.299-DB of 2005 13 concerned, it was concluded that the prosecution had not been able to produce sufficient evidence on the basis whereof he could have been held guilty under section 302 read with section 34 of the Indian Penal Code, as also, under section 25 of the Indian Arms Act, 1959. After having heard the accused/appellants on the question of sentence, by a separate order passed on the same date i.e. on 1.4.2005, the accused/appellants Balkar Singh and Dinesh Kumar alias Goldy were sentenced to undergo imprisonment for life, and to pay a fine of Rs.200/- each under section 302 read with section 34 of the Indian Penal Code. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for a period of two months. Additionally, the accused/appellant Balkar Singh was ordered to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.100/- under Section 25of the Indian arms Act, 1959. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of one month. Insofar as Balkar Singh is concerned, it was directed that both the sentences against him would run concurrently. A perusal of the evidence produced on behalf of the prosecution as well as the judgment rendered by the Additional Sessions Judge, reveal that while convicting the accused/appellants Dinesh Kumar alias Goldy and Balkar Singh, reliance was placed on the ocular evidence, as well as, expert evidence besides the disclosure statements made by the accused/appellants on the basis whereof recoveries of knives and their blood stained clothes were made. So far as the ocular evidence is concerned, reliance was placed on the testimony of the complainant Jarnail Singh PW4 (i.e. the brother of the deceased Baljinder Singh) and the statement of Gurdevi PW6 (i.e. the mother of the deceased Baljinder Singh) reliance was Crl.A.No.299-DB of 2005 14 also placed on the statement of Gurmail Singh PW10 (i.e. the the elder brother of the deceased Baljinder Singh). In sum and substance, it is, therefore, apparent that the entire ocular evidence relied upon to hold the accused guilty was through close/blood relations of the deceased Baljinder Singh. So far as the expert medical evidence is concerned, reliance was placed on the testimony of Dr.S.K.Singhal PW8 who disclosed that about 40 stab wounds were found on the dead body of Baljinder Singh, resulting in the fracture of two of his ribs, and the rupture of the pericardium of heart of the deceased Baljinder Singh. The disclosure statements made by the accused/appellants had resulted in the recovery of two knives and clothes worn by the accused at the time of occurrence. It would however, be pertinent to mention that the entire ocular