IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision:February 10, 2010. (1) Criminal Appeal No.408-DB of 2002. Tarlok Singh .......Appellant v State of Punjab .........Respondent (2) Criminal Appeal No.383-DB of 2007. Manjit Singh .......Appellant v State of Punjab .........Respondent ******* CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE JASWANT SINGH Present:- Mr.JS Thind, Advocate for the appellant Tarlok Singh. Ms.Radhika Jain,Advocate for Mr.Aseem Rai,Advocate for appellant Manjit Singh. Mr. H.S.Brar,Additional Advocate General,Punjab for the respondent-State. Jaswant Singh,J. This order shall dispose of above mentioned two Criminal Appeals as both these appeals arise against the judgment and order dated 2.3.2002 passed by learned Additional Sessions Judge, Amritsar, convicting both the convicts-appellants (Tarlok Singh and Manjit Singh) under Sections 302 IPC and sentencing both of them to undergo life imprisonment and to pay a fine of Rs.1000/- each under Section 302 IPC and in case of default of payment of fine to undergo further RI for a period of one month. Criminal Appeal No.408-DB of 2002 etc. 2 2. On 3.7.1998, PW4 Tarsem Singh, made statement Ex.PF before ASI Sardool Singh PW7 that he was resident of Nai Abadi Faizpura, PS Civil Lines, Amritsar and was earning his livelihood by pulling Rickshaw. His father Ajit Singh was working as a Labourer while his mother Kanti (since deceased) was a household lady. Convict-appellant Tarlok Singh, a resident of Kirpal Mohalla was his father's elder brother from brotherhood. He (Tarlok Singh) had borrowed a sum of Rs.5000/- from deceased Kanti with an undertaking to return the same after one month. Deceased Kanti visited the house of convict Tarlok Singh to get her money back but was put off by Tarlok Singh on one pretext or the other. It was further alleged by complainant Tarsem Singh, PW4 that a week prior to that day he had accompanied his mother to the house of Tarlok Singh to get her money back but at that time Tarlok Singh was not present in his house and his son Manjit Singh met them who told Tarsem Singh and deceased Kanti to go away from his house as they (Tarlok Singh and Manjit Singh) owed nothing to them. They were allegedly also threatened not to come again for demanding money or they will be done to death as they (Tarsem Singh and deceased Kanti) had already defamed them (Tarlok Singh and Manjit Singh) in their mohalla. It was further stated by Tarsem Singh PW4 that on 2.7.1998 at about 7/7.30 pm deceased Kanti went to the house of appellants Tarlok Singh and Manjit Singh to take back her money but did not return till noon time on 3.7.1998. At this complainant Tarsem Singh PW4 accompanied by his younger brother Criminal Appeal No.408-DB of 2002 etc. 3 Sukha Singh reached the house of appellant Tarlok Singh in search of their mother. On reaching there they knocked the door of the house of the appellant Tarlok Singh but none replied from inside. At this complainant Tarsem Singh PW4 and his brother Sukha Singh opened the door and went inside the house. There they found the dead body of their deceased mother Kanti lying on the floor. There were scratches on the neck of the deceased who seemed to have been killed by hanging/pressing her throat. Complainant Tarsem Singh PW4 was of the opinion that his mother had been killed by appellant Manjit Singh by hanging her as he (Manjit Singh) had a suspicion that deceased Kanti had illicit relations with appellant Tarlok Singh, who owed no money to deceased Kanti. It was further stated by complainant Tarsem Singh PW4 that after leaving his younger brother Sukha to guard the dead body of deceased Kanti he was going to report the matter to the police when ASI Sardul Singh, PW7 met him on the way. Accordingly police action was sought in the matter. 3. ASI Sardul Singh PW7 recorded the said statement Ex.PF of PW4 Tarsem Singh at 3.00 PM and after making endorsement Ex.PF/1 thereupon sent the same to police station for registration of an FIR upon which formal FIR No.62 dated 3.7.1998 under Section 302 IPC was recorded at 3.40 PM at PS Chheharata, District Amritsar. Special report was received by JMIC, Amritsar at 9.00 PM. 4. After recording the statement Ex.PF and sending the same to police station, ASI Sardul Singh PW7 went to the place of Criminal Appeal No.408-DB of 2002 etc. 4 occurrence where dead body of deceased Kanti was lying. He prepared the inquest report Ex.PB, injury statement Ex.PH, recorded the statements of witnesses, prepared rough site plan Ex.PJ of the place of occurrence, sent the dead body for postmortem examination and, recovered a piece of shirt having two buttons which was converted into a sealed parcel and took the same into possession vide recovery memo Ex.PL. After the post mortem examination, he was also handed over a shirt and salwar worn by the deceased which were also converted into a sealed parcel and took into possession vide recovery memo Ex.PM. 5. Appellant Manjit Singh was arrested on 5.7.1998, who suffered a disclosure statement Ex.PN about his having kept concealed a lacha/chaddar (bed sheet) and a torn shirt of his own. He got recovered the aforesaid lacha/chaddar (bed sheet) and a torn shirt vide recovery memo Ex.PO which were deposited with the MHC. 6. It may also be noticed here that besides lodging FIR Ex.PF/2, complainant Tarsem Singh PW4 had also filed a criminal complaint (Ex.PG) dated 5.8.1998 in the Court of JMIC (PS Chheharata) at Amritsar. In the said complaint it was alleged by him that he had lodged the aforesaid FIR regarding the murder of his mother by accused Constable Kuldip Singh ( a nephew of appellant Tarlok Singh), Tarlok Singh and, Manjit Singh @ Pappu and Kala sons of Tarlok Singh. As per allegations contained in that complaint it was alleged by complainant Tarsem Singh that sometime back his deceased Criminal Appeal No.408-DB of 2002 etc. 5 mother-Kanti had given a loan of Rs.1000/- to accused Constable Kuldip Singh and another loan of Rs.5000/- to appellant Tarlok Singh. On 2.7.1998 at about 6 pm deceased Kanti had gone to the house of Tarlok Singh to get her money back. It was also alleged therein that on 28.6.1998 at about 5.30 pm Constable Kuldip Singh had threatened to kill deceased Kanti in case she demanded money from him and at that time Pehlwan Jagtar Singh and Tara Chand Dalal were also present there. Thereafter when his deceased mother moved an application to SHO PS Chheharta, accused Constable Kuldip Singh returned a sum of Rs.500/- to deceased Kanti. In the said complaint, complainant Tarsem Singh had also narrated the facts leading to the registration of FIR with the addition that accused Constable Kuldip Singh in conspiracy with Tarlok Singh and his sons namely Papu @ Manjit Singh and Kala had strangulated his mother to death thereby committing offences under Sections 302/120-B/381/34 IPC. It was also stated by complainant Tarsem Singh that the police by twisting his statement had lodged FIR only against appellant Manjit Singh thereby letting off the other accused namely Constable Kuldip Singh, Tarlok Singh and his another son Kala. Accordingly, a prayer was made to summon accused Constable Kuldip Singh, Tarlok Singh and his another son Kala under Sections 302/120-B/381 and 34 IPC and try them. In support of his allegations he also led preliminary evidence. The learned Judicial Magistrate First Class, after hearing the learned counsel for the complainant and keeping in view the preliminary evidence led by Criminal Appeal No.408-DB of 2002 etc. 6 complainant Tarsem Singh vide order dated 31.3.1999 summoned all the accused person to face trial. It is borne out from the record that appellant Tarlok Singh was produced by the police before the Judicial Magistrate Ist Class Amritsar on 18.11.1999 and he was sent to judicial custody while accused Kuldip Singh was granted bail by this Court. Accused Kala son of Tarlok Singh could not be arrested and was declared a proclaimed offender. 7. On receipt of State case and criminal complaint by way of commitment, learned Sessions Judge Amritsar, vide order dated 13.3.2001 consolidated the complaint case with the State case and proceedings were ordered to be recorded in the State case which were also to be read in complaint case. The appellants Tarlok Singh, Manjit Singh and accused Constable Kuldip Singh were charged under Section 302 IPC vide order dated 13.3.2001, to which charges the accused pleaded not guilty and claimed trial. 8. The prosecution in support of its case examined eight witnesses. Thereafter, statements of accused under Section 313 Cr.P.C., were recorded, in which they denied prosecution allegations against them and stated that they were innocent and had been falsely involved in this case In their defence, they examined Assistant MHC Paramjit Singh DW1. 9. The learned Additional Sessions Judge, after hearing both sides and evaluating the evidence, acquitted co-accused Kuldip Singh of the charges levelled against him by giving him benefit of doubt, Criminal Appeal No.408-DB of 2002 etc. 7 however, accused-appellants Tarlok Singh and Manjit Singh were held guilty for the commission of offence under Section 302 IPC and accordingly convicted and sentenced them, as stated above. 10. We have heard learned counsel for the appellants and the learned Additional Advocate General, Punjab for the respondents. 11. Learned counsel for the appellants have argued that there is delay in lodging of the FIR and such delay has been used for consultations and deliberations to concoct a story. In support, learned counsel have referred to the evidence on record, which would show that the dead body of the deceased Kanti was discovered much prior in time than recorded in the FIR. Therefore, casting a cloud of suspicion on the whole prosecution case. It was then argued on behalf of the appellants that there is a stark variation regarding the discovery of body in the version of the complainant Tarsem Singh-PW4 son of deceased Kanti, which points out towards serious infirmities in the prosecution case. It was pointed out by the learned counsel for Tirlok Singh that in any event, there was no evidence or motive against Tirlok Singh to point towards his guilt whereas qua the other appellant Manjit Singh, it was argued that recovery of 'lachha' with which Manjit Singh is alleged to have strangulated deceased Kanti and caused the death is not sufficient to connect Manjit Singh to the commission of offence. On the other hand, learned state counsel has supported the reasoning adopted by the learned trial Court. 12. After hearing the respective submissions and perusing the Criminal Appeal No.408-DB of 2002 etc. 8 evidence on record, we are persuaded to accept the contentions raised on behalf of the appellants. PW4-Tarsem Singh S/o Kanti (deceased) had set the investigation in motion by recording his statement (Ex.PF) on 3.7.1998 at 3.30 PM. He in his statement stated that on 2.7.1998 at about 7/7.30 PM, his mother had proceeded from their house at Nai Abadi, Faizpura Police Station Civil Lines, Amritsar to the house of Tarlok Singh R/o Mohalla Kirpal Singh/Japani Mill, Chheharta, who is elder brother of his father-Ajit Singh from the brotherhood, to get back borrowed amount of Rs.5000/- from Tarlok Singh at her own but she did not return home even uptill noon time on 3.7.1998. Then, he and his younger brother Sukha reached the house of Tarlok Singh to find out about their mother and found the outer door closed from inside. Door was knocked 2-3 times but the same was not opened, then he and his brother opened the door themselves and went inside and saw that the dead body of their mother Kanti was lying on the floor of the room. On checking, it was found that there were scratches on the neck of her mother and she seemed to have been killed by hanging/pressing her throat. He further stated that he was of the firm opinion that her mother had been killed by hanging with something by accused Manjit Singh @ Pappu S/o Tarlok Singh as he suspected illicit relations between his mother Kanti and Tarlok Singh. PW4-Tarsem Singh while deposing before the Court testified that “his mother did not return home on the night of 2.7.1998 and also did not come back till 10.00/11.00 AM on Criminal Appeal No.408-DB of 2002 etc. 9 3.7.1998. ASI Sardul Singh along with other police officials came to our house at about 11.00 AM on 3.7.1998. Police informed him that his mother had died and they took him along with them in their vehicle.” He further deposed that on reaching the house of Tarlok, they found “the door of the house, which opened towards the street was closed. On the other side of the house, two police officials were sitting. He requested the police to have a look of the face of his mother but the police did not allow him to do so. Police kept him detained at Police Station Civil Lines, Amritsar till evening. The police recorded his statement but the statement was not read over to him.” 13. PW6-Balbir Singh, brother of deceased Kanti, who has deposed that deceased Kanti on 2.7.1998 at about 9.15 PM had met him in a Mandir at Chheharata in his cross examination has stated that “Sukha Singh had come to his village to bring him. They reached Police Station Chheharta at about 2.00 PM. Dead body of Kanti was lying at the police station Chheharta.” Thus, from the testimony of PW4-Tarsem Singh and PW6- Balbir Singh, it is evident that the dead body of Kanti had been discovered on the morning of 3.7.1998 and complainant Tarsem Singh informed and brought at the house of Tarlok Singh and further that the dead body had been removed to the police station. On the contrary, Inquest report (Ex.PB) prepared by PW7- ASI Sardul Singh reveals that the date and hour of the discovery of the dead body of Kanti is shown to be recorded as on 3.7.1998 at 3.00 PM. Criminal Appeal No.408-DB of 2002 etc. 10 Statement (Ex.PF) of PW4-complainant Tarsem Singh is shown to be recorded at 3.30 PM by Sardul Singh-ASI and on the basis of his statement, FIR (Ex.PF/2) is shown to be recorded at 3.40 PM and completed by 4.45 PM at Police Station Chheharta. Special report has reached the Magistrate at 9.00 PM. Therefore, we find that the complainant has not supported the case as set up by prosecution with regard to material particulars of the time or discovery of the body and lodging of the FIR, which raises a serious doubt regarding the prosecution case. In our analysis, it appears that the timing of the recording of the statement (Ex.PF) and the recording of the FIR has been ante timed whereas timing of the discovery of the body has been post timed so as to resort to consultations and deliberations. 14. It is borne out from the record that after recording of the statement on 3.7.1998 by the complainant-Tarsem Singh, he filed a criminal complaint (Ex.PG) on 5.8.1998 wherein it was alleged that his mother Kanti had been strangulated by Tarlok Singh and his sons Manjit Singh and Kala and nephew Constable Kuldeep Singh by hatching a conspiracy thereby committing the offence under Sections 302/120-B/381/34 IPC as Kuldeep Singh also did not want to return the remaining loan borrowed from his mother Kanti. Learned trial Court on the basis of evidence has acquitted Constable Kuldeep Singh and the State has not filed any appeal qua such acquittal. It is further apparent that PW4-Tarsem Singh in his initial complaint had pointed his finger towards Manjit Singh by ascribing the Criminal Appeal No.408-DB of 2002 etc. 11 motive that he suspected that his father Tarlok Singh and Kanti (deceased) had illicit relations whereas in the complaint the motive was attributed to Kuldeep Singh, Tarlok Singh, Manjit Singh and Kala regarding non-return of the outstanding borrowed amount as well as grabbing of gold ornaments and cash of Rs.2000/- on her person when she went to the house of Tarlok Singh. However, in his deposition before the court, he has not fully supported his earlier version. Thus, it is evident that the prosecution case is wholly discrepant and cannot support the hypothesis of the guilt of the accused-appellants in the absence of any other incriminating evidence. No doubt, the cause of death of deceased Kanti by PW1-Dr. Kuldeep Singh is opined as asphyxia as a result of ante mortem strangulation, which was sufficient to cause death in the ordinary course of nature. However, the recovery of Lachha and 'piece of clothe' on the disclosure statement of Manjit Singh from underneath from a steel trunk lying in the house is not sufficient to connect him with the commission of the offence. It is admitted that items of recoveries were not sent to the F.S.L. In any case, recoveries of items of such a nature,which are ordinarily found in the house and on the person of individuals, cannot give rise to any inference pointing towards the guilt of Manjit Singh. The prosecution evidence in the shape of extra judicial confession of Manjit Singh before PW5-Tara Chand is inconsequential as Tara Chand turned hostile and has not supported the prosecution at all. Similarly, from the evidence of PW7-Sardul Singh, I.O, no substantial support can be Criminal Appeal No.408-DB of 2002 etc. 12 derived by the prosecution case. Mere recovery of the dead body from the house of Tarlok Singh without any other connecting incriminating evidence in a case based on circumstantial evidence would not be sufficient to inculpate the accused-appellants. In our view, the prosecution case has no legs to stand. 15. In view of the aforesaid discussion, we find that the prosecution has not been able to prove its case against the accused- appellant beyond reasonable doubt. Accordingly, we allow both the aforesaid appeals bearing Crl.A.No.408-DB of 2002 and Crl.A.No.383- DB of 2007 and set aside judgment and order dated 2.3.2002 passed by learned Additional Sessions Judge, Amritsar, convicting and sentencing the accused-appellants and by giving the benefit of doubt acquit them of the charges levelled against them. (HEMANT GUPTA) (JASWANT SINGH) JUDGE JUDGE February 10 ,2010. manoj