Crl.A. No.27-DB of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Crl.A. No.27-DB of 2004 DATE OF DECISION: May 10, 2011 MOHINDER KAUR AND OTHERS ...APPELLANTS VERSUS THE STATE OF PUNJAB ...RESPONDENT 2. Crl.A. No.835-DB of 2003 RANDHIR SINGH ...APPELLANT VERSUS THE STATE OF PUNJAB ...RESPONDENT 3. Crl.A. No.896-DB of 2003 JAGDEV SINGH ...APPELLANT VERSUS THE STATE OF PUNJAB ...RESPONDENT 4. Crl.A. No.181-DB of 2004 BABLA ...APPELLANT VERSUS THE STATE OF PUNJAB ...RESPONDENT 5. Crl.A. No.214-DBA of 2005 THE STATE OF PUNJAB ...APPELLANT VERSUS JASWINDER SINGH ...RESPONDENT CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE M. JEYAPAUL. Crl.A. No.27-DB of 2004 -2- 1. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. ASHOK AGGARWAL, ADVOCATE AND MR. S.S. RANA, ADVOCATE FOR THE APPELLANTS IN CRL.A.NO.27-DB OF 2003. MR. VINOD GHAI, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.835-DB OF 2003 MR. G.S. SIDHU, ADVOCATE AMICUS CURAIE FOR THE APPELLANT IN CRL.A. NO.181-DB OF 2004. MR. D.S. BRAR, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.896-DB OF 2003. MS. MANJARI NEHRU KAUL, ADDL.A.G., PUNJAB FOR RESPONDENT IN CRL.A. NO.27-DB OF 2003, CRL.A. NO.835-DB OF 2003, CRL.A. NO.181-DB OF 2004, CRL.A. NO.896-DB OF 2003. AND FOR APPELALNT IN CRL.A. NO.214-DBA OF 2005. MR. ANUPAM SINGLA, ADVOCATE FOR THE RESPONDENT IN CRL.A. NO.214-DBA OF 2005. M. JEYAPAUL, J. Accused Khushwinder Singh, Mohinder Kaur, Gurvinder Kaur, Randhir Singh, Jagdev Singh and Babla were held guilty for the charge under Section 120-B IPC and were sentenced to undergo life imprisonment and to pay of `5000/- each and in default to undergo a further period of 2 years R.I. Accused Jagdev Singh was also convicted for offence under Section 302 IPC and was sentenced to undergo life imprisonment and to pay a fine of `5000/- and in default of payment of fine to undergo further period of 2 years R.I. But the trial Court having given the benefit of doubt to accused Jaswinder Singh acquitted him of the charge framed against him. Accused Randhir Singh has preferred Crl.A. No.835-DB of 2003, accused Jagdev Singh has preferred Crl.A. No.896-DB of 2003, accused Mohinder Kaur, Gurvinder Kaur and Khushwinder Singh have preferred Crl.A. No.27- Crl.A. No.27-DB of 2004 -3- DB of 2003 and accused Babla has preferred Crl.A. No.181-DB of 2004 aggrieved by the judgement of conviction and sentence passed by the trial Court. The State having been aggrieved by the acquittal of accused Jaswinder Singh filed Crl.A. No.214-DBA of 2005. Accused Mohinder Kaur proceeded alongwith her son accused Khushwinder Singh and gave a statement Ex.PV/A alleging that her husband Buta Singh was murdered by three robbers who came with muffled faces to their house. One of them armed with a gun like weapon shot her husband dead after potential threat yielded to accused Mohinder Kaur and her family members. As per the endorsement made by PW19 ASI Gurmail Singh, a formal FIR Ex.PV/2 was recorded by ASI Jagroop Singh. PW19 inspected the scene of occurrence. He recovered blood stained mattress and pillow. PW2 Dr. Sanjeev Hans, Medical Officer attached to Civil Hospital, Ludhiana conducted post mortem examination on the dead body of deceased Buta Singh, aged 46 years on 12.8.2001, at about 1.15 p.m. He noted down the presence of rigor mortis all over the body. The following two injuries were found on the dead body:- “1. A lacerated would 1” x2” incised in front of tragus of right ear. Margins are inverted and there was blackening around the wound. There was a loss of small portion of upper par of right ear and lacerated would extended towards the middle of ear. 2. A lacerated wound 8” x 4” in size, starting from lateral border on left eye and obliquely involving the area of fronto parietal, temporo occipital region of left side of Crl.A. No.27-DB of 2004 -4- skull, corresponding bones and brain matter spilling out. Injury No.1 was communicating with injury No.2. On exploration of skull multiple fractures of frontal, parietal temporal and occipital bones present on both sides. Multiple laceration of brain matter was present. Haemotoma presents in vault of skull.” He opined in his post mortem report that the deceased had died due to haemorrhage and shock as a result of ante mortem fire arm injury which was sufficient to cause death in the ordinary course of nature. PW18 SI Waryam Singh took up the investigation in the evening of 12.8.2001 from PW19 ASI Gurmail Singh. He reached the spot alongwith PW19. At Jodhewal Chowk, PW16 Sukhdev Singh met him. PW18 recorded his statement. He also recorded the statement of PW17 Hardeep Singh who was present in the house of deceased Buta Singh. From their statements he came to know the involvement of accused Khushwinder Singh, Mohinder Kaur, Gurvinder Kaur, Randhir Singh, Jagdev Singh and Babla. On 13.8.2001, he raided the house of deceased Buta Singh. Accused Khushwinder Singh and Jaswinder Singh who were present over there were arrested by PW18. He also conducted a raid on the house of accused Randhir Singh at V.Tajpur and arrested him. Those accused were remanded to judicial custody. He recovered the telephone bills from the PCO run by PW7 Vijay Kumar. Thereafter he reached the house of deceased Buta Singh again and arrested accused Mohinder Kaur and Gurvinder Kaur. On 17.8.2007, he obtained a production warrant of accused Crl.A. No.27-DB of 2004 -5- Jagdev Singh and thereafter effected a formal arrest on 18.8.2001. On the basis of the disclosure statement made by accused Randhir Singh on interrogation, a bottle and two glass tumblers were recovered from his house. Finger prints from the bottle and glass tumblers were lifted. On the basis of the disclosure statement given by accused Jagdev Singh, .12 bore DBBL gun belonging to deceased Buta Singh alongwith a belt of cartridges in the paddy field near three Safeda trees on katcha road were recovered. An empty cartridge from the left barrel of the gun and a live cartridge of .12 bore DBBL gun from the right barrel were recovered. Three live cartridges from the belt were also recovered. The gun was marked as Ex.P1 and the belt was marked as Ex.P2. On completion of investigation, the accused were challaned by PW18. PW1 Harjinder Singh would depose that about 2 years ago, in the month of February or March, deceased Buta Singh informed him that due to certain dispute between him and his wife Mohinder Kaur, the latter had been to her parents house. Mohinder Kaur was persuaded to return to her matrimonial home. She told him that there was some minor dispute between her and Buta Singh and as a result of which deceased Buta Singh had given her a little beating. PW4 Rajinder Singh who was examined by the prosecution to speak about the extra judicial confession alleged to have been given by accused Jagdev Singh and accused Babla turned wholesale hostile. He deposes before the trial Court that his statement was never recorded by the police. PW5 SI Surinder Singh is a Finger-print expert. He rendered assistance to PW18 SI Waryam Singh to recover carefully a bottle and 2 Crl.A. No.27-DB of 2004 -6- glass tumblers from the house of accused Randhir Singh. He also submitted a report Ex.PD. PW6 Gurmandir Singh was serving as Naib Tehsildar at Dehlon. He was associated by PW18 SI Waryam Singh as a witness to the recovery of .12 bore DBBL gun alongwith a belt containing 3 live cartridges from the paddy field near Safedas. PW7 Vijay Kumar who was the partner of PCO on the rear side of his tea-stall at Ludhiana spoke about the telephone call bills (Ex.P8 and ExP9) emanated from his PCO, but he would honestly admit that he could not say as to which place those telephone calls were made, based on those receipts. PW9 Zora Singh has deposed that deceased Buta Singh was his friend. He came to know that Buta Singh had some dispute with his family members over a sum of `70,000/-. PW10 Surjit Kaur has come out with a version that accused Mohinder Kaur borrowed a sum of `30,000/- without interest from her about a month prior to the death of Buta Singh. PW12 ASI Amrik Singh was examined to prove the recovery effected by PW19 at the scene of occurrence. PW16 Sukhdev Singh was running a dhaba on Tibba bridge on Sahnewal-Dehlon road. It is his version that the deceased used to take meals from his dhaba and as such deceased Buta Singh was known to him. He having coming to know that Buta Singh was murdered on 12.8.2001, proceeded immediately to the house of deceased Buta Singh. The police was present over there. Accused Mohinder Kaur informed him that Buta Singh used to beat her and her sons accused Jaswinder Singh and accused Crl.A. No.27-DB of 2004 -7- Sukhwinder Singh @ Khushwinder Singh. There was a quarrel in the family. Buta Singh had also an eye on his daughter-in-law. Therefore, they decided to eliminate Buta Singh. A conspiracy was hatched by accused Mohinder Kaur, her two sons accused Jaswinder Singh and Sukhwinder Singh @ Khushwinder Singh and her daughter-in-law. Accused Mohinder Kaur also told PW16 that she alongwith her two sons contacted accused Randhir Singh at Tajpur and informed him their plan to eliminate Buta Singh. Accused Randhir Singh informed her that he had two persons named Jagga @ Jagdev Singh and Babli @ Babla for said purpose. Jagga also had came on parole from jail. Accused Randhir Singh had contacted accused Jagdev Singh @ Jagga on telephone. After few days the deal was struck at the residence of accused Randhir Singh on payment of `4 lacs. It was further disclosed by accused Mohinder Kaur to PW16 that accused Randhir Singh demanded an advance money and a sum of `40,000/- was paid to him by Mohinder Kaur. As per the plan, accused Randhir Singh, Jagdev Singh and Babla reached their house on 11.8.2001 at 9.00 p.m. Accused Mohinder Kaur handed over the gun and the cartridges to Dheera @ Randhir Singh who gave gun shot to Buta Singh. To suppress the real occurrence, accused Mohinder Kaur alongwith her family members cooked- up a story that a robber committed the death of Buta Singh. PW17 Hardeep Singh had deposed that on 12.8.2001, at about 5.00 p.m. accused Randhir Singh approached and informed him that accused Mohinder Kaur and her sons expressed their intention to eliminate Buta Singh. Accordingly, he contacted accused Jagga @ Jagdev Singh and Babla. He also struck a deal for a sum of `4 lacs and a sum of `40,000/- was paid as advance by Mohinder Kaur. The remaining amount of Crl.A. No.27-DB of 2004 -8- `3,60,000/- was agreed to be paid after the assignment was executed. As per the plan, accused Jagdev Singh and Babla killed Buta Singh. PW20 Bal Kishan was the officiating Director of Finger Prints Bureau, Phillaur. He having examined finger prints found on the glass bottle and two glass tumblers submitted a report that the sample finger print impressions of the alleged accused Randhir Singh did not tally with the impressions found on the glass bottle and two glass tumblers. Responding to the incriminating circumstances spoken to by the above material witnesses in this case, accused Jaswinder Singh had stated that a false case was foisted on him. The sisters of Buta Singh were married to three real brothers. One Ujagar Singh, uncle of witness Sukhdev Singh was mediator of the marriage. Witness Sukhdev Singh was interested in the success of the case because of his relationship with Tehal Singh, one of the brothers-in-law of Buta Singh. Witness Hardeep Singh was a stock witness. Tehal Singh hatched a conspiracy with ASI Waryam Singh and scripted a drama in the matter of elimination of Buta Singh by unknown persons. SI Waryam Singh took up the investigation with the connivance of Tehal Singh. The entire property of deceased Buta Singh have been grabbed by Tehal Singh and his brothers. The said version under Section 313 Cr.P.C. of accused Jaswinder Singh was adopted by his family members, accused Mohinder Kaur, accused Gurvinder Kaur and accused Khushwinder Singh. Accused Randhir Singh, accused Jagdev Singh and accused Babla had responded to the incriminating circumstances saying that a false case was foisted on them. On the side of the defence, 8 witnesses were examined. DW1 Crl.A. No.27-DB of 2004 -9- Head Constable Prem Parkash having brought the First Information Report Register pertaining to the year 2002 from the Police Station Division No.7, Ludhiana spoke about the registration of those FIRs in the said police station. DW2 Head Constable Manjit Singh having brought the Daily Diary Register (DDR) pertaining to the year 2001 deposed relating to the said document. DW3 Surjit Singh has deposed that accused Randhir Singh was his nephew. He has stated that accused Randhir Singh came to his house to see him at about 5.45 p.m. on 12.8.2001 and remained in his house till 9.00 p.m. DW4 Head Constable Bachhitar Ram having brought the FIR register spoke about the association of witness Hardeep Singh in some of the cases as witnesses. DW5 Parveen Puri was Supervisor of the records in the local newspaper 'Daily Ajit'. He spoke about the new items flashed in Daily Ajit, Jalandhar on 13.8.2001. DW6 Ajit Singh spoke about the detention of accused Randhir Singh in police station on 13.8.2001. DW7 Aruna Lumba, Record-keeper attached to Deputy Commissioner Office, Ludhiana spoke about the civil litigation pertaining to Tehal Singh. DW8 Suresh Pandit comes out with a version that Buta Singh was murdered by Tehal Singh with a view to grab the properties of Buta Singh. The trial Court having relied upon the motive part of the case of the prosecution, the extra judicial confession and the recovery of gun from accused Jagdev Singh rendered a judgement of conviction as against accused Randhir Singh, Khushwinder Singh, Mohinder Kaur, Gurvinder Kaur, Jagdev Singh and Babla and recorded acquittal as against Jaswinder Singh. Learned counsel for the appellants/accused vehemently submit that the prosecution has miserably failed to establish the chain of Crl.A. No.27-DB of 2004 -10- circumstances relied upon by it. The prosecution has come out with a very weak motive which was not sufficient to do away with the life of the head of the family. A very improbable story has been reeled out by the prosecution that contract killers were engaged by accused Mohinder Kaur to eliminate her husband, having hatched a conspiracy with her other family members. The prosecution has associated a stock witness to spoke about the extra judicial confession of the accused. No reliance can be placed upon the extra judicial confession spoken to by the witnesses as it was found to be totally unreliable. The finger prints lifted from the bottle and two glass tumblers did not match with accused Randhir Singh. The telephone bill produced by the prosecution does not in any way advance the case of the prosecution. The prosecution has come out with an artificial version that .12 bore DBBL gun was recovered on 20.8.2001, about 8 days after the occurrence in a water stagnated agricultural field. The FSL report also does not advance the case of the prosecution. It is lastly submitted that the accused cannot be convicted on the basis of an extra judicial confession given by the co- accused as the same may at best be used to corroborate the other material evidence available on record. Therefore, it is submitted that the prosecution has failed to establish beyond reasonable doubt that there was a criminal conspiracy hatched by the accused which resulted in the murder of Buta Singh at the hands of accused Jagdev Singh. Learned Addl.A.G., Punjab appearing for the State would submit that the Court could very well raise a presumption that family members of deceased Buta Singh were culprits in the murder of one of their family members. The Court will have to further presume the involvement of the accused in the crime as one of the accused Mohinder Kaur had come out Crl.A. No.27-DB of 2004 -11- with a totally false story to misdirect the investigating agency. The trial Court having relied upon the motive, the extra judicial confession and the recovery of the material object has rightly returned a verdict of conviction. The trial Court has wrongly acquitted accused Jaswinder Singh in spite of the fact that the trial Court chose to convict the other accused on the very same materials produced by the trial Court. The prosecution has come out with various circumstances in order to establish the charge of criminal conspiracy and murder as against the accused. The fact remains that the investigating agency was confronted with a blind murder. Of course, there was some misdirection of investigation at the instance of accused Mohinder Kaur. The prosecution has relied upon the following circumstances:- i) Motive for the murder of Buta Singh. ii) Extra judicial confession made by accused Jagdev Singh and Babla before PW4, the extra judicial confession made by accused Mohinder Kaur before PW16 and the extra judicial confession made by the accused Randhir Singh before PW17. iii) Finger prints lifted from the liquor bottle and two tumblers. iv) Telephone bills. v) Recovery of .12 bore DBBL gun at the instance of accused Jagdev Singh. vi) FSL report relating to .12 bore DBBL gun. There is no dispute to the fact that Buta Singh was done to death in the midnight of 11/12.8.2001. PW2 Dr.Sanjeev Hans, who conducted the post mortem examination on the dead body of Buta Singh on 12.8.2001, has found an Crl.A. No.27-DB of 2004 -12- entry wound on the right ear and exit wound on the left eye of deceased Buta Singh. He has given an opinion that Buta Singh died due to shock and haemorrhage on account of gun shot injuries he received. Thus, the prosecution has established that Buta Singh died a homicidal death. Let us now take up each and every circumstance relied upon by the prosecution. As far as the motive part of the case of the prosecution is concerned, the prosecution has examined PW1 Harjinder Singh and PW9 Zora Singh. PW1 would depose that about 2 years ago, in the month of February or March, Buta Singh informed him that due to certain dispute between him and his wife Mohinder Kaur, the latter had left the matrimonial home and proceeded to her parental house. Only after persuasion, she could be brought back to the matrimonial home. On enquiry made by him with Mohinder Kaur, she told him that there was some minor dispute between her and Buta Singh and as a result of which he gave a little beating. Firstly, for such a minor dispute which took place long ago prior to the occurrence, the family members would not have ventured to hatch a conspiracy to do away with the head of the family. Secondly, it is his admission that he never visited earlier any of the relation of Buta Singh. Buta Singh also had not disclosed this dispute with his wife to any other respectable villager. Even assuming for the sake of argument that Buta Singh confided with PW1 about the petty quarrel he had with his wife long prior to the occurrence, such an insignificant quarrel would not have been a foundation or motive for the murder. We find that PW1 has come out with a stale dispute which may not have nexus with the murder of Buta Singh. Therefore the evidence of PW1 does not go to establish the motive part of the case of the prosecution. Crl.A. No.27-DB of 2004 -13- PW9 Zora Singh was examined to strengthen the case of the prosecution as regards the motive. PW9 Zora Singh in fact comes out with a different story relating to the motive for the murder. He would depose that Buta Singh had some dispute with his family members over a sum of `70,000/-. The evidence of PW9 disclosed a totally new story. Further he would admit during the course of cross-examination that he was not a witness to the quarrel between accused Mohinder Kaur and deceased Buta Singh, nor for the settlement of the amount of `70,000/-. No sane family member would take such a horrific decision to do away with one of the family members just for a money dispute involving a sum of `70,000/-. For three reasons, evidence of PW9 is rejected by us. The first reason is that he has come out with a totally different story regarding the motive behind the murder of Buta Singh. Secondly, he comes out with a petty money dispute in the family as a motive for murder. Thirdly, he was not a witness to the quarrel, nor for the settlement of the amount. For all these reasons we find that the evidence of PW9 does not inspire confidence. The prosecution was not sure of the motive for the murder. In a case of circumstantial evidence, the motive part of the case of the prosecution looms large. The failure to substantiate the motive alleged deals a blow, if not a deadly blow, to the case of the prosecution. The very foundation of the case was based on the motive for murder by the family members hiring some contract killers. When the motive part of the case is not established by the prosecution., it is unimaginable that family members would have taken such a deadly decision to eliminate their own family member. Further, it is surprising that the family members having hatched a conspiracy to eliminate one of its family members struck a deal with Crl.A. No.27-DB of 2004 -14- contract killers to kill a family member in the very same residential house where they were living. Even otherwise, the motive part of the case of the prosecution is found to be very weak. Assuming that such a dispute had arisen in the family, it is improbable that the family members could have been part of the elimination of their family member. The alleged confession given by accused Jagdev Singh and Babla to PW4, accused Mohinder Kaur to PW16 and accused Randhir Singh to PW17 are largely relied upon by the prosecution in a case of blind murder. PW4 Rajinder Singh has completely given a go-by to the case of the prosecution. He has turned wholesale hostile to the version of the prosecution and as a result of which no portion of his evidence could be usefully relied upon to conclude that extra judicial confession was given by accused Jagdev Singh and Babla. He would come out with a version that police never recorded his statement in this case. Two investigating officers, namely, PW19 SI Gurmail Singh who was the initial investigating officer and PW18 SI Waryam Singh who was the later investigating officer had taken up the case for investigation and completed the same. Neither of them spoke of the fact that PW4 Rajinder Singh was examined and his statement was recorded under Section 161 Cr.P.C. Further he has been found to be a resident of Khasi Kalan. The prosecution version is that accused Jagdev Singh and Babla proceeded to his house within half an hour of the occurrence and informed him in the mid of night about the murder they committed. No help had been sought by PW4 from Jagdev Singh and Babla, having allegedly confessed the crime. The prosecution has come out with a totally improbable version. Rather the prosecution has manipulated a story of extra judicial confession through PW4 who refused to be part of Crl.A. No.27-DB of 2004 -15- such an exercise. At any rate, the prosecution could not establish the alleged confession made by Jagdev Singh and Babla to PW4. PW16 Sukhdev Singh was the proprietor of dhaba at Tibba bridge on Sahnewal-Dehlon road. He had just seen deceased Buta Singh at times when Buta Singh preferred to take meals from his dhaba. Never had he met earlier the family members of Buta Singh. He had