Murder Reference No.1 of 2011 & Crl. Appeal No.166-DB of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : April 25, 2011 Murder Reference No.1 of 2011 State of Punjab …Prosecutor Versus Ajay Kumar …Respondent Present: Mr. Pavit Mattewal, Addl. AG, Punjab, for the prosecutor-State. Mr. Sanjiv Sharma, Advocate, for the respondent. Crl. Appeal No.166-DB of 2011 Ajay Kumar ...Appellant Versus State of Punjab ...Respondent Present: Mr. Sanjiv Sharma, Advocate, for the appellant. Mr. Pavit Mattewal, Addl. AG, Punjab, for the respondent-State. CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE A.N.JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. This order shall dispose of Murder Reference No.1 of 2011 and Criminal Appeal No.166-DB of 2011, arising out of judgment of conviction and order of sentence dated 17.01.2011 passed by the learned Additional Sessions Judge, Patiala, convicting Ajay Kumar (hereinafter referred to as 1 Murder Reference No.1 of 2011 & Crl. Appeal No.166-DB of 2011 ‘the accused’) for the offence punishable under Sections 303 IPC i.e. for causing the death of Nirmal Singh @ Nimma, undergoing life imprisonment and sentencing him to be hanged by the neck till death, subject to confirmation of this Court. The accused Ajay Kumar was earlier sentenced to life imprisonment by learned Sessions Judge, Patiala vide its judgment dated 18.10.2008 for an offence punishable under Section 302 IPC in FIR No.439 dated 25.09.2006, P.S. Kotwali, Patiala. The accused was lodged in Central Jail, Patiala. He was lodged in Chakki (barrack) No.30 along with Nirmal Singh @ Nimma son of Balwant Singh, who was undergoing life imprisonment vide judgment dated 21.08.1998 in FIR No.23 dated 02.03.1994 under Section 302 IPC, P.S. Sunam. As per the prosecution case, at about 2.30 pm on 04.03.2010, the accused and Nirmal Singh @ Nimma were only two convicts in the barrack, whereas two other convicts lodged in the said barrack i.e. convict Santosh has gone for work in the factory and the other convict Gursewak Singh has gone to attend the court. The allegation against the accused is that he caused injuries on the person of convict namely Nirmal Singh with brick, as a result of which the said convict died. On the basis of such facts, the Superintendent, Central Jail, Patiala sent a letter dated 04.03.2010 (Ex.PW-9/A) to the SHO, P.S. Tripuri, Patiala for registration of an FIR, which reads as under: “It is requested for the subject cited above that the above noted convict is receiving life imprisonment and fine Rs.5000/- and in default of fine further R.I. for one year as per order dated 18.10.08 of Sh. Inderjit Singh, Sessions Judge, Patiala. That convict was lodged in Central Ahata on 04.03.10. On 04.03.10 at about 2.30 pm, when Head Warden Incharge Central Ahata, Harminderpal Singh No.121 open the convicts at noon time that it was come to know that 2 Murder Reference No.1 of 2011 & Crl. Appeal No.166-DB of 2011 convict Nirmal Singh @ Nimma son of Balwant Singh r/o Chhajli Kothe, P.S.Sunam, Distt. Sangrur was lodged in Chakki No.30 and receiving life imprisonment in FIR No.23 of 02.03.94 under Section 302 IPC, P.S.Sunam from 21.08.98, was found in dead condition and convict Ajay Kumar son of Gurmeet Singh also lodged in Chakki No.30. There were injuries on the body of Nirmal Singh convict. Ajay Kumar told that he murdered Nirmal Singh. So, it is written to you that action be taken against Ajay Kumar son of Gurmeet Singh r/o Deep Nagar, P.S.Tripuri, Patiala.” On the basis of aforesaid letter, an FIR Ex.PW-16/A was lodged against the accused. The blood stained brick recovered from the place of occurrence i.e. barrack was sent for chemical examination to the Forensic Science Laboratory. As per the report (Ex.PX) of the Forensic Science Laboratory, the brick was found to be stained with human blood. On completion of investigations including photographs of the place of occurrence; report of the Forensic Science Laboratory; and record of the jail, the accused was made to stand trial for an offence punishable under Section 303 IPC. To prove the commission of offence by the accused, the prosecution examined PW-1 Manjit Singh, Assistant Superintendent, Central Jail, Patiala, who has proved the warrants in respect of the accused Ajay Kumar and convict Nirmal Singh confining them to the Central Jail, Patiala; PW-2 Charanjit Singh Bhangu, Deputy Superintendent, Central Jail, Patiala, who has deputed Gurmit Singh and Gurpreet Singh, convicts as ‘Nigran’ (Watch Helpers) to help the other official staff on 04.03.2010; PW-3 HC Ajmer Singh, who has deposed in respect of the four convicts lodged in Barrack No.30; PW-4 HC Hari Singh, who has deposed in respect 3 Murder Reference No.1 of 2011 & Crl. Appeal No.166-DB of 2011 of lodging of Nirmal Singh and Ajay Kumar in Barrack No.30 and that out of other two persons, one went to the Court for attending his case and the other one was deputed to the factory; PW-5 Jagir Singh, Deputy Superintendent, who has proved Ex.PW-5/A in respect of the presence of Santosh Kumar, one of the convicts lodged in Barrack No.30, in the factory on 04.03.2010 and deposed that Santosh Kumar came in the factory at 8.30 am and remained there upto 4.00 pm. He further deposed that accused Ajay Kumar was not in the factory on that day; PW-6 Harjit Singh, Head Warden, who has proved the record pertaining to the attendance of accused Ajay Kumar and deceased Nirmal Singh in Barrack No.30; PW-7 Ajaib Singh is the photo-grapher, who has taken photographs Exs.PW-7/1 to PW-7/9; PW- 8 Indresh Khanna, Draftsman, who has proved the scaled site plan Ex.PW- 8/A; and PW-9 Jiwan Kumar Garg, Superintendent, Central Jail, Patiala, who has written letter Ex.PW-9/A. The statements of PW-10 Head Warden Harminder Pal Singh and PW-12 Gurpreet Singh are material evidence, as the said witnesses have seen the accused in the barrack soon after the incident. PW-10 Head Warden Harminder Pal Singh has deposed that on 04.03.2010 at about 2.30 pm, he along with Nigran Gurpreet Singh and Gurmit Singh were checking the barracks and when they checked barrack No.30, where Ajay Kumar and Nirmal Singh were confined, he found that Ajay Kumar was standing and on the left side Nirmal Singh, who face was stained with blood, was lying there. Injuries were found on his face, which were caused by some blunt weapon. He further deposed that accused Ajay Kumar caused injuries to Nirmal Singh on his face and head. One blood stained brick was also lying there. He handed over Ajay Kumar to Nigran Gurpreet Singh and Gurmit Singh and went to inform his Senior Officer. He further deposed that blood 4 Murder Reference No.1 of 2011 & Crl. Appeal No.166-DB of 2011 stained brick was removed from there by the police and a parcel was prepared. In his cross-examination, he has stated that he has not brought the record of the prisoners kept in the barracks nor he has seen the brick in question in the Court. He further stated that he has not seen the incident regarding attack of Ajay Kumar on the deceased, but the body of the deceased was blood stained, when he saw the spot. He further stated that statements of Gurpreet Singh and Gurmit Singh were recorded on that day at the spot in his presence. He has denied the suggestion that the accused Ajay Kumar was not in barrack No.30 on that day. PW-12 Gurpreet Singh deposed that he was lodged in Central Jail, Patiala, as a convict in ND&PS case and was deputed by the jail authorities as Nigran along with Gurmit Singh and HC Harminder Pal Singh. He further deposed that on 04.03.2010 at about 3.00 pm, he along with HC Harminder Pal Singh and Gurmit Singh were checking the barracks of Central Ahata and when they checked barrack No.30, where Ajay Kumar and Nirmal Singh were confined, he found Ajay Kumar was standing there and on the left side Nirmal Singh, whose face was stained with blood, was lying there. He further deposed that Ajay Kumar tried to flee from the spot. He further deposed that at that time only accused Ajay Kumar and Nirmal Singh were lodged in barrack No.30. In his cross-examination, it has not been even suggested that other two convicts were present in the barrack at the time when he visited the barrack. He has stated that he did not know whether Nirmal Singh committed suicide or died due to natural death. PW-11 HC Gurmeet Singh is the witness, who has taken into possession, the clothes of the deceased. The other formal witnesses examined are PW-16 SI Karan Singh, the Investigating Officer; PW-18 Shri Subash Bhardwaj, Executive Magistrate, who has conducted inquest proceedings and witnessed the process of photographs of the scene 5 Murder Reference No.1 of 2011 & Crl. Appeal No.166-DB of 2011 of crime; and PW-13 Dr. S.S.Oberoi, one of the members of the Board, who conducted post-mortem examination on the dead body of Nirmal Singh on 05.03.2010 at about 12.25 pm. In his opinion, cause of death was head injury, which was anti-mortem and sufficient to cause death in ordinary course of nature. In his cross-examination, he has stated that the Investigating Officer or any other person has not shown him any weapon by which injuries were caused. After the prosecution concluded its evidence, the incriminating circumstances appearing in the prosecution evidence, were put to the accused. The accused denied all the incriminating evidence against him and asserted that he has been falsely implicated in this case at the instance of some officers of Jail Authorities. The accused also examined DW-1 Bhupinder Singh in his defence. DW-1 Bhupinder Singh is a convict lodged in barrack No.53 alleged to be opposite to barrack No.30. He deposed that he did not see any quarrel in barrack No.30 on 04.03.2010 and that Ajay Kumar has been implicated due to enmity with Jail Authorities i.e. Jiwan Kumar Garg, Superintendent and Charanjit Singh Bhangu, Deputy Superintendent. It may stated here that Jiwan Kumar Garg, Superintendent, Central Jail, Patiala has been examined by the prosecution as PW-9, but there is no suggestion given to him that he has enmity with accused Ajay Kumar. Similarly, Charanjit Singh Bhangu, Deputy Superintendent has been examined as PW-2 and again there is no suggestion that he has any enmity with accused Ajay Kumar. The only suggestion is that the witnesses have deposed falsely intending to strengthen the case of the prosecution. After considering the evidence on record, the learned trial Court found that the prosecution has proved the charges levelled against the 6 Murder Reference No.1 of 2011 & Crl. Appeal No.166-DB of 2011 accused beyond any reasonable doubt and consequently, convicted and sentenced the accused Ajay Kumar, as mentioned above. We have heard learned counsel for the parties at some length and found that there is no infirmity in the prosecution case regarding commission of crime by the accused. From the statement of PW-4 HC Hari Singh it is proved on record that Nirmal Singh and Ajay Kumar were the only two convicts confined in barrack No.30 on 04.03.2010 at around 2.30 pm. As per the statement of PW-5 Jagir Singh, Deputy Superintendent, the other convict namely Santosh Kumar was in the factory from 8.30 am till 4.00 pm. Similar is the statement of PW-4 HC Hari Singh, who deposed that out of other two persons, one was deputed to the factory and another went to the Court for attending his case. Thus, at the time of incident on 04.03.2010, in barrack No.30 Ajay Kumar and Nirmal Singh were the only convicts lodged. PW-10 Head Warden Harminder Pal Singh, on that day, around 2.30 pm, has seen the accused with Nirmal Singh lying in injured condition. He was accompanied by PW-12 Gurpreet Singh and Gurmit Singh. Blood stained brick was also found from the place of occurrence, which was taken into possession. There is nothing to doubt the testimony of PW-10, which was corroborated by PW-12 Gurpreet Singh, a convict, who was deputed as Nigran to assist PW-10 Head Warden Harminder Pal Singh. Therefore, the prosecution has conclusively proved that at the time of occurrence, it was the accused Ajay Kumar and Nirmal Singh, who were confined in barrack No.30. Since there is no other person present in the said barrack and the fact that blood stained brick was also recovered from the place of occurrence and that the blood on the brick has been found to be of human as per the report (Ex.PX) of the Forensic Science Laboratory, the 7 Murder Reference No.1 of 2011 & Crl. Appeal No.166-DB of 2011 prosecution has proved beyond any reasonable doubt, the commission of crime by the accused alone. The evidence of DW-1 Bhupinder Singh is not reliable or sufficient to discard the prosecution story. The prosecution witnesses have not been suggested that they are deposing falsely on account of any enmity. There is no circumstance on record, which may suggest even remote enmity of the accused with the jail authorities. Thus, the defence evidence is not worthy of any credence and not sufficient to doubt the prosecution story. Consequently, the findings recorded by the learned trial Court that the accused Ajay Kumar has committed murder of Nirmal Singh, while undergoing life imprisonment stands proved beyond any reasonable doubt. Mr. Sanjiv Sharma, learned counsel for the accused Ajay Kumar has vehemently argued that the sentence of death is not tenable in view of the judgment of Hon’ble Supreme Court in Mithu Vs. State of Punjab AIR 1983 SC 473. Therefore, the sentence of death is unsustainable and the life imprisonment, which can be imposed upon the appellant should be ordered to run concurrently with life imprisonment already imposed upon the appellant vide judgment dated 18.10.2008. In view of the judgment in Mithu’s case (supra), we find that the death sentence cannot be imposed on the accused for an offence punishable under Section 303 IPC. Therefore, we decline confirmation of death sentence imposed upon the accused Ajay Kumar and sentence him to undergo life imprisonment. The argument raised by Mr. Sharma that the sentence of life imprisonment, in view of the conviction for an offence under Section 303 IPC in the present appeal, should run concurrent with the life imprisonment 8 Murder Reference No.1 of 2011 & Crl. Appeal No.166-DB of 2011 already imposed upon the appellant vide judgment dated 18.10.2008, find supports from the provisions of Section 427 (2) of the Code of Criminal Procedure, 1973. Therefore, the sentence of imprisonment for life in the present case is to run concurrently with the previous sentence of imprisonment for life arising out of FIR No.439 dated 25.09.2006. However, the appellant shall not be entitled to any remission for a period of 20 years in view of the judgment of Hon’ble Supreme Court in Swamy Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka (2008) 13 Supreme Court Cases 767, wherein it has been held that while commuting the death sentence to life imprisonment, the Court can impose conditions in respect of minimum number of years, which a convict has to undergo as life imprisonment. With the said observations and modifications in the punishment, the murder reference and the appeal stand disposed of. (HEMANT GUPTA) JUDGE April 25, 2010 (A.N.JINDAL) Vimal JUDGE 9