IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.196-DB of 2001 Date of Decision: 20.10.2009 Surinder Singh Appellant Versus State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.J.B.S.Gill, Advocate for the appellant Mr.D.S.Brar, Deputy Advocate General, Punjab for the respondent …. Jasbir Singh, J. This order will dispose of Criminal Appeal No.196-DB of 2001 and Criminal Appeal No.305-SB of 2001. Both these appeals have arisen out of the same FIR. To dictate order, facts are being mentioned from Criminal Appeal No.196-DB of 2001. Criminal Appeal No.196-DB of 2001 FIR No.47 was registered against the appellant-Surinder Singh and two others, namely, Narinder Singh and Makhan Singh, on 29.4.1998 under Sections 302, 201, 364/34 IPC. During investigation, it came out that the appellant-Surinder Singh had committed murder of Kamalpreet Kaur @ Kamaldeep Kaur, on 23.4.1998, by firing a shot from his service pistol. It further transpired that the co-accused, mentioned above, helped him in disappearance of evidence, including dead body of the deceased. The process of criminal law was set in motion, on a statement (Ex.PA/1) made by Avtar Singh (PW1), husband of the deceased, wherein he mentioned that his wife Kamalpreet Kaur, was missing w.e.f. 23.4.1998 from his house. It was further alleged that he had earlier made a report regarding her missing, on 24.4.1998, which was registered vide DDR No.2 in police post City Khanna, however, no action was taken. It was further averred that the appellant-accused Sub Inspector Surinder Singh used to visit house of the complainant and he had developed illicit relations with his wife, namely, Smt.Kamalpreet Kaur. It was further stated that about 6/7 months before disappearance of wife of the complainant, wife of the appellant –accused visited his house, she abused his wife and had threatened that in case she continued her illegal relations with her husband i.e. the appellant, she would be killed. In the complaint, suspicion was raised against the appellant-accused for disappearance of wife of the complainant. It was allegation of the complainant that his wife is either killed or was being illegally detained. On the basis of above said complaint, FIR (Ex.PA/2) was recorded under Section 364 IPC, at Police station Khanna, against the appellant-accused. 2 Criminal Appeal No.196-DB of 2001 It is an admitted fact that, at the relevant time, the appellant- accused was Incharge of Police Post, situated in village Kot, under the jurisdiction of Police Station Sadar Khanna. It is also an admitted fact that he was allotted a quarter in the premises of the police post and was residing there. It is also not disputed that the appellant-accused, along with others, was transferred from police post Kot to some other place, on 26.4.1998. After registration of FIR, the investigation was taken over by Sub-inspector Satnam Singh (PW14), who searched for the appellant- accused but he was not available. On investigation by the investigating officer, Jaswinder Singh (PW9), who was then posted as MHC at Police post Kot, offered to disclose the true facts in the presence of concerned Deputy Superintendent of Police. Balwant Singh, DSP came to the spot. In his presence, statement of Jaswinder Singh (PW9) was recorded, wherein he has started that on 23.4.1998 at about 11.00 a.m., the appellant-accused had committed murder of Kamalpreet Kaur, in his quarter, situated within the premises of police post Kot, by firing a show upon her. He has further stated that on hearing noise of a gun fire, he came out, the appellant – accused asked him to bring a jug of water, which he did. When he went near to the quarter of appellant-accused, he found a lady lying on floor of the room of the quarter, she was struggling for life. The appellant-accused poured some water in her mouth but she did not respond and died. The appellant-accused told Jaswinder Singh (PW9) not to disclose this fact to any other person. It was further averred that thereafter, the appellant- accused locked his quarter, went away in his maruti car along with co- accused Constable Narinder Singh, leaving dead body of that lady in his room. During night, he came back at about 3.30. Jaswinder Singh (PW9) was standing near gate of the police post along with Malkiat Singh (PW12). 3 Criminal Appeal No.196-DB of 2001 It was stated that the appellant-accused, with the help of Makhan Singh co- accused, bundled the dead body in a car standing outside, in which Narinder Singh and wife of the appellant were sitting and the appellant-accused and others went away to some undisclosed place. It was also stated that in the meantime, they (the accused), also made an attempt to wash blood from floor of the room where death had occurred. To the same effect is the statement made by ASI Gurmail Singh (PW4) and H.C.Malkiat Singh (PW12). It is further case of the prosecution that after recording statements of PW9 and PW12, door of the official quarter was broken open. Investigating officer Satnam Singh (PW14) prepared a rough site plan (Ex.PX) of the place of occurrence, with correct marginal notes. Malkiat Singh (PW16), a photographer also took photographs of that place. During search of that room, the investigating officer lifted one empty of 9 mm pistol from the spot, which was taken in possession against a recovery memo. One cot, bedding, including pillow and one sheet of cloth was also taken in possession. Some ash of burnt cloths was also recovered from the spot, which was sealed into a parcel and was taken in possession against seizure memo (Ex.PS). From that room, some letters, alleged to have been written by the deceased, to the appellant- accused (mark 1 to mark 11) were also taken into possession. Two photographs were also recovered from that room (one is Ex.P18). Appellant-accused was arrested on 30.4.1998. Maruti car bearing registration No.DDC-5183 was recovered from him, which was also taken into possession against seizure memo (Ex.PU). The appellant –accused also got recovered his service pistol 9 mm (Ex.P19) and 9 live cartridges. Dead body of the deceased was recovered on 30.4.1998 from a canal. It was photographed and after preparing the inquest report, the same 4 Criminal Appeal No.196-DB of 2001 was sent for post-mortem examination, which was conducted by Dr.Harish Tulli (PW11) on 1.5.1998 and he gave the following opinion:- “The body was badly decomposed, foul smell was coming from the dead body and maggots were crawling all over the body. There was 1 cm in diameter lacerated wound with inverted margins on front of right side of chest below right breast, which was the wound of entry. I also noticed 1.5 cm in diameter lacerated wound with everted margins on the right back in its upper part. The right lung underneath the injuries was damaged and both the injuries were communicating.” It was further opined that death was the result of shock and hemorrhage due to a fire arm injury. It was ante mortem in nature and was sufficient to cause death in an ordinary course. The probable time that may have elapsed between injury and death was immediate and the time elapsed between death and post-mortem examination was found to be within 7 to 8 days. From the dead body, three gold bangles and a kara were removed and taken in possession by the investigating officer against seizure memo (Ex.PH). The parcels containing metal piece, a rexin piece recovered from the car, ash along with semi burnt piece cloth were sent to the forensic science laboratory for analysis and on examination, those articles were found to be stained with human blood. Pillow, mattress and sheet of cloth recovered from the spot, on analysis, were also found to be stained with human blood, however, no demonstrable blood was detected from the sheet of cloth as per report of the forensic science laboratory (Ex.PY). The parcel containing empty of 9 mm pistol recovered from the spot and service pistol 5 Criminal Appeal No.196-DB of 2001 of the appellant-accused was also sent for examination and on analysis thereof, it was observed that the empty recovered from the spot, was found to have been fired from service pistol of the appellant-accused. Report of the forensic science laboratory was brought on record as Ex.PZ. On completion of investigation, challan was presented against the appellant –accused and Narinder Singh – co-accused. Co –accused Makhan Singh was not arrested, however, subsequent thereto, on his arrest, a supplementary challan was presented. Both the challans were consolidated for trial. The appellant-accused was charge sheeted for commission of an offence punishable under Sections 364, 302, 201 IPC and also under Section 27 of the Indian Arms Act, 1959. He pleaded not guilty and claimed trial. The prosecution produced 18 witnesses and also brought on record documentary evidence to prove its case. On completion of prosecution’s evidence, statements of the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. Appellant-accused in this appeal, in his statement, has averred as under:- “On 23.4.1998 I along with ASI Gurmel Singh and other police officials held Naka on the G.T. Road near police post Kot. At that time gold ornaments weighing three kilograms were recovered from some persons. In that connection telephone message was given to Deputy Superintendent Police Balwant Singh. At that time I was verbally directed to keep those persons from whom recovery of gold ornaments was made with me at the police post. I then kept those persons at police post Kot for the whole day but Deputy Superintendent of 6 Criminal Appeal No.196-DB of 2001 Police had not turned up at the police station on that day. However, after examining the relevant documents relating to the possession of those gold ornaments the same were found to be genuine. Thereafter I also consulted District Attorney (Legal), Ludhiana and those persons were then released by me and the gold ornaments were also handed over to them. On the next day i.e. 24.4.98 I was called to the office of the Senior Superintendent of Police, Khanna and I was asked to explain as to why those persons along with gold ornaments were released. Senior Superintendent of Police, Khanna felt offended with me and on the next day I was transferred from the police post Kot. Thereafter ASI Gurmail Singh and other police officials were also at that time transferred by the Senior Superintendent of Police Khanna. Thereafter I was falsely implicated in this case. I am innocent.” However, no evidence was led in defence. The trial Court, on appraisal of evidence, found the accused Sub-inspector Surinder Singh guilty of commission of an offence under Sections 302, 201 IPC and Section 27 of the Indian Arms Act, 1959. His co-accused namely, Makhan Singh was held liable under Section 201 IPC, however, taking note of the evidence on record, co-accused Narinder Singh was acquitted. Hence, these appeals. Counsel for the appellant has vehemently contended that the prosecution has miserably failed to prove its case. There is no explanation with the alleged eye witnesses, why they remained mum for a period of more than six days in disclosing the prosecution story to the investigating officer. By stating that the prosecution has failed to explain delay in 7 Criminal Appeal No.196-DB of 2001 recording the FIR, it was prayed that the appeal be allowed and the appellant-accused be acquitted of the charges framed against them. Counsel further argued that the prosecution has failed to establish identity of the dead body. By making reference to the statements made by PW1 husband of the deceased and Gurdev Singh (PW2), her father and Surinder Kumar (PW8), he tried to show that there is no evidence on record to prove that the dead body recovered, from a canal, was that of deceased Kamalpreet Kaur. He also argued that the recovery of empty from the spot and other material, including mattress etc. is doubtful. The appellant-accused was arrested on 30.4.1998 and thereafter false case was planted against him. In the alternative, without conceding anything, he prayed that at the maximum, offence committed by the appellant, would fall within the provisions of Section 304 Part-I IPC and not under Section 302 IPC. As per prosecution story, the appellant-accused was in love with the deceased, may be, due to some misunderstanding, one shot was fired, which proved to be fatal. There was no intention on the part of the appellant- accused to kill the deceased. If he had any plan, he may have committed the crime anywhere outside the police post. He prayed that the appeal be allowed and the appellant be acquitted of the charges framed against him. Counsel for the State has vehemently opposed the arguments raised by counsel for the appellant. He, by making reference to the documents on record, argued that guilt of the appellant accused was proved on record. By making reference to the statements made by ASI Gurmail Singh (PW4), Constable Jaswinder Singh (PW9) and Head Constable Malkiat Singh (PW12), counsel argued that all the above named witnesses had seen the occurrence. May be due to fear or with a view to help the appellant-accused, those witnesses remained mum for a period of 5-6 days, 8 Criminal Appeal No.196-DB of 2001 however, when questioned and pushed to the wall, they came out with true version. By making reference to the photograph (Ex.P18) and the letters mark 1 to mark 11, counsel argued that intimate relationship between the deceased and the appellant-accused is proved on record. He further argued that Avtar Singh (PW1) and Gurdev Singh (PW2) appear to have been resiled under pressure. By making reference to their statements, he stated that even these witnesses have admitted their signatures on the complaint and the inquest report. Gurdev Singh (PW2) has also stated that he identified dead body of her daughter. He prayed that appeal, having no substance, be dismissed. After hearing counsel for the parties, this Court is of the opinion that at the instance of the appellant, it is not possible to interfere in the judgment and order, under challenge. It is apparent from the records that the police officials, who were posted in police post Kot (attached to police station Sadar Khanna), made an attempt to shield the appellant-accused and at an appropriate time, failed to depose truth to the authority concerned, which was their bounden duty. It is further apparent from the records that police officials, posted in police station Khanna, also tried to favour the appellant-accused. On 24.4.1998, Avtar Singh (PW1) made a report regarding missing of his wife Kamalpreet Kaur. No investigation was done and the concerned police officials remained satisfied only by recording a DDR No.2 on the above said date. The FIR was recorded only when second application was moved by the above said witness, on 29.4.1998. Contention of counsel for the appellant that the testimonies of ASI Gurmail Singh (PW4), Constable Jaswinder Singh (PW9) and Head Constable Malkiat Singh (PW12) cannot be relied upon because it came at a 9 Criminal Appeal No.196-DB of 2001 very belated stage, is liable to be rejected. All the three witnesses have given vivid description as to how they had seen the appellant-accused and his co-accused, committing murder of the decease and then disposing off her dead body. They have further explained the circumstances, in which, the appellant and his co-accused made an attempt to conceal evidence of the crime. Appellant-accused was working as a Sub-inspector in the police department. He was Incharge of police post Kot and all the above named witnesses were working under his direct supervision. May be, with a view to favour him or under threat, they failed to disclose true facts to the authority concerned. When questioned, during investigation, they failed to resist pressure and melt down to narrate the true facts. Coupled with oral evidence of the above named witnesses, there is sufficient circumstantial evidence on record, to prove guilt of the appellant-accused. Death was the result of a fire arm injury. It is an admitted fact that a 9 mm pistol was released to the appellant as a service weapon. One empty of 9 mm was recovered from the spot, which was taken into possession. Service pistol was also taken in possession. Both were sent for forensic science analysis and as per report (Ex.PZ), empty was found to have been fired from service pistol of the appellant-accused. Not only this, during investigation, investigating officer took into possession a pillow, mattress, metal piece from the spot, on analysis, those were found to be stained with human blood (report Ex.PX and Ex.PY). Piece of rexin removed from the car, in question, was also sent for chemical examination and it was found to be stained with human blood. Not only this, illicit intimate relationship of the appellant- accused with the deceased is established when photograph (Ex.P18) is 10 Criminal Appeal No.196-DB of 2001 perused. The deceased and the appellant-accused are seen standing in a very intimate position. The above said photograph was recovered from the room in possession of the appellant-accused. Reference can also be made to the letters recovered from the spot (mark 1 to mark 11), which also indicate regarding intimate relationship between the deceased and the appellant- accused. It appears that the appellant-accused and the deceased fell apart due to certain reasons. As per version of one of the eye witnesses, the appellant –accused was under the influence of liquor. It appears that in a raze, the appellant-accused fired a shot, which resulted into death of Kamalpreet Kaur. In view of facts mentioned above, this Court feels that delay in registration of FIR is not fatal to the case of the prosecution. So far as identity of dead body is concerned, as per evidence on record, it stands fully proved. Complainant Avtar Singh (husband of the deceased), when appeared in the witness box as PW1, has resiled from his statement, however, he has admitted his signatures on the complaint and other documents. Same is the situation so far as Gurdev Singh (PW2), father of the deceased is concerned. During his cross-examination, this witness has specifically stated that he had identified dead body of his daughter from the wearing articles. Further contention of counsel for the appellant that the recovery of empty and other material from the spot is doubtful, is also liable to be rejected. As per evidence of the investigating officer, after registration of an FIR on 29.4.1998, he searched for the appellant-accused, however, he was not available. It is also an admitted fact that the appellant-accused was transferred from police post Kot to some other place on 25.4.1998. After recording statement of Jaswinder Singh (PW9), the investigating officer 11 Criminal Appeal No.196-DB of 2001 broke open lock of quarter of the appellant and during search, empty of 9 mm, mattress, pillow, bed sheet and other material was taken in possession against seizure memos, which were verified by the police officials. On forensic science examination, some of the articles found stained with human blood. One piece of cloth and piece of rexin was also taken in possession from the car and on examination, it was also found stained with human blood. Despite lengthy cross-examination, the defence has failed to shatter testimony of the recovery witnesses, as such, it cannot be said that the recovery of the articles was doubtful. Further contention of counsel for the appellant that the offence committed by the appellant-accused would fall within the provisions of Section 304 IPC, is not correct. The appellant-accused was a responsible police officer, who was expected to protect the general public. He was a married man. Despite that, he developed illicit relations with the deceased, which fact is apparent from the evidence on record, especially, photograph (Ex.P18). After marriage of the deceased with Avtar Singh (PW1), it appears that she had drifted away from the appellant-accused. He, somehow or the other, brought her to the police station and under influence of liquor, committed her murder by firing a shot from his service pistol. Merely because, he had fired one shot, it cannot be said that his intention was not to kill the deceased as was projected by his counsel. Not only as above, after committing the murder, he also made an attempt, to dispose off the dead body in a clandestine manner and made efforts to disappear evidence from the spot with the help of his co-accused, namely, Makhan Singh. As per oral testimonies of PW9 and PW12, participation of Makhan Singh in tampering the evidence and disposing of the dead body is 12 Criminal Appeal No.196-DB of 2001 clearly established. The trial Court has analysed the evidence very minutely and has rightly given benefit of doubt to a co-accused, namely, Narinder Singh. The trial Court has rightly discarded defence plea taken by the appellant-accused. It was case of the appellant-accused that on 23.4.1998, a check post was set up on the GT road, near police post Kot. He had apprehended some individuals with gold ornaments weighing 3 kgs. Intimation was given to the Deputy Superintendent of Police, who advised him to keep those persons in custody along with the seized material, however, the concerned official did not turn up for whole of the day. After verification, he released those persons, which offended the higher officers and because of that he was falsely implicated in this case. To prove above said fact, nothing was brought on record. To put up a check post, entry is required to be made in register of the police post. Other police officials, who were on duty, their names were not disclosed. No doubt, one official witness has tried to favour the appellant-accused by reiterating stand taken by him, however, on record, no evidence is available to support the same. No entry regarding arrest of the persons concerned, as alleged above, was brought on record. As per evidence on record, no case is made out to interfere at the instance of the appellant-accused. Accordingly, both the appeals stand dismissed. (Jasbir Singh) Judge 20.10.2009 (Daya Chaudhary) gk Judge 13