IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 680-DB of 2001 DATE OF DECISION : 21.09.2010 Lakhbir Singh .... APPELLANT Versus State of Punjab ..... RESPONDENT Crl. A. No. 136-DB of 2002 DATE OF DECISION : 21.09.2010 Jagdeep Singh @ Joga Singh .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Vikas Mohan Gupta, Advocate, for the appellant (in Crl. A. No. 680-DB of 2001) Mr. O.P. Goyal, Senior Advocate, with Ms. Rimplejeet Kaur, Advocate, for the appellant (in Crl. A. No. 136-DB of 2002) Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeal No. 680-DB of Crl. A. No. 680-DB of 2001 -2- 2001, filed by appellant Lakhbir Singh (hereinafter referred to as `A-1') and Criminal Appeal No. 136-DB of 2002, filed by appellant Jagdeep Singh @ Joga Singh (hereinafter referred to as `A-2'). Both the appellants were tried by the Court of Additional Sessions Judge, Fatehgarh Sahib, for the offences under Section 302 read with Section 34 IPC for committing the murder of Rattan Lal; under Section 406 IPC for committing criminal breach of trust with regard to 101 sugar bags and under Section 411 IPC for having in possession the stolen property i.e. ` 60,000/- and one silver ring of deceased Rattan Lal by A-1, and one watch of deceased Rattan Lal by A- 2, which they had dishonestly stolen from the person of the deceased. The court of Sessions Judge, Fatehgarh Sahib, vide its judgment and order dated 24.9.2001, convicted and sentenced both the appellants to undergo life imprisonment and to pay a fine of ` 500/- each, in default to undergo rigorous imprisonment for a period of one month under Section 302/34 IPC; to undergo rigorous imprisonment for three years each under Section 407 IPC. Though the appellants were also convicted under Section 411 IPC, but for this offence, no separate sentence was imposed upon them, because they were already awarded punishment for the major offence. Sentences of imprisonment on both the counts were ordered to run concurrently. 2. As per the prosecution version, complainant Dinesh Kumar (PW.6) and son of his mother's sister, namely Rattan Lal (deceased), were running the business of `Gur' and sugar at Ellnabad, District Sirsa (Haryana). On 19.12.1997at about 4 AM, they proceeded to Amloh (Punjab) Crl. A. No. 680-DB of 2001 -3- for purchasing sugar from Nahar Sugar Mills, Amloh. At about 10.30 AM, they reached Ludhiana to their tradesman Bajaj Billa. After taking demand order from him, they came to Khanna and hired a truck, bearing registration No. HR-29B-8329, at the rate of ` 2,000/- for transporting the sugar from Amloh to Ellnabad. The truck was being owned and driven by A-1, and A-2 was its cleaner. The complainant and Rattan Lal purchased sugar from Nahar Sugar Mills, Amloh and at about 4/5 PM, they got loaded the sugar in the said truck, which was to be delivered at Ellnabad. The complainant asked Rattan Lal to accompany the truck and he himself went to Ellnabad by bus. On the next day, the above said truck did not reach Ellnabad. The complainant thought that the truck might have gone out of order and as such, he kept on waiting for 2-3 days. But when neither the truck nor Rattan Lal turned up, the complainant searched Rattan Lal in his relations, but he could not be found. Then the complainant suspected that the accused might have abducted Rattan Lal with intention to kill him and to mis-appropriate the sugar entrusted to them, and on 26.12.1997, he reported the matter to the police, on the basis of which the FIR (Ex.P8) under Sections 364, 34, 406 IPC was registered against both the accused at 7.20 PM. The special report of the said FIR was sent, which was received by the Ilaqa Magistrate on the same day at 8.00 PM. In his aforesaid complaint, the complainant gave description of Rattan Lal and details of the clothes as well as the articles, being worn by him. 3. On 27.12.1997, on search by the police, dead body of Rattan Crl. A. No. 680-DB of 2001 -4- Lal, which was entangled in the canal bridge of Behrampur, was fished out of the water at 12.30 PM. It was identified by complainant Dinesh Kumar (PW.6) and Inder Bansal (PW.3). The offences under Section 302, 34 IPC were added. The inquest report (Ex.P2) and the rough site plan (Ex.P2/C) of the place of recovery were prepared. The dead body was sent for post- mortem examination. 4. On 27.12.1997 itself, at 4.00 PM, Dr. B.S. Chabra (PW.1) conducted post mortem examination on the dead body of Rattan Lal. Before the Doctor, the dead body was again identified by complainant Dinesh Kumar (PW.6) and Inder Bansal (PW.3). One ligature mark encircling the neck completely, below the thyroid cartilage, was found. On dissection of the ligature mark under the neck, S/C tissues echymosed. Laryngeal cartilage was fractured. Lung was engorged and congested. Small intestines and their contents were congested and full of gases. Liver, spleen and kidney were sent for chemical examination. Viscera was also sent for chemical examination. After receipt of the report of Chemical Examiner (Ex.P4), the doctor opined that cause of death was due to asphyxia resulting from strangulation, in addition to the deceased being intoxicated. The probable time between injury and death was stated to be immediate and the time between death and post mortem was within seven days. 5. On 8.1.1998 at 8 AM, Parshotam Mittal (PW.7), before whom both the appellants made extra judicial confession, produced both the accused before Inspector Bhulla Singh (PW.15). They were arrested. On Crl. A. No. 680-DB of 2001 -5- 9.1.1998, during interrogation, in pursuance of his disclosure statement (Ex.PW.12/A), A-2 got recovered one watch kept concealed under the clothes in a big box (Trunk) from his residential house, which was taken into possession vide recovery memo (Ex.PW.12/C). Rough site plan (Ex.PW.15/D) of the place of recovery was also prepared. Thereafter, in pursuance of his disclosure statement (Ex.PW.12/B), A-1 got recovered ` 60,000/- and one silver ring (Ex.P6) kept concealed by him under the clothes in a big box (Peti) from his residential house, which were taken into possession vide recovery memos (Ex.PW.12/D). He also got recovered truck bearing registration No. HR-29-B-8329, containing 26 bags of sugar from the house of his aunt in village Rajindergarh, which was taken into possession vide separate recovery memo (Ex.PW.12/E). On 14.1.1998, MHC Birsh Bhan, Police Station Indri, produced 20 bags of sugar before the Investigating Officer of the case, which were taken into possession by the Police of Police Station Indri vide Rapat No. 10 dated 31.12.1997. These bags were taken into possession by the Investigating Officer on 14.1.1998 vide recovery memo (Ex.PW.10/A). 6. After completion of investigation, the challan was filed against the appellants and they were charge sheeted for the offences under Section 302 read with Section 34 IPC, 406 and 411 IPC, to which they did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined 15 witnesses, out of whom PW.1 Dr. B.S. Chabra, PW.3 Inder Bansal, PW.4 Bhupinder Crl. A. No. 680-DB of 2001 -6- Kumar Sharma, Security Inspector, Nahar Sugar Mills, Amloh, PW.5 Ashok Sharma, PW.6 Dinesh Kumar (complainant), PW.7 Parshotam Mittal, PW.14 Sunil Kumar, Clerk RTO Office, Faridabad and PW.15 Bhulla Singh, Inspector, are the material witnesses. 8. PW.1 Dr. B.S. Chabra, who conducted the post mortem examination on the dead body of deceased Rattan Lal, has proved the Post Mortem Report of the deceased as Ex.P1. He has also stated that after receipt of the report of Chemical Examiner (Ex.P4), he had opined that cause of death in this case was due to asphyxia resulting from strangulation, in addition to the deceased being intoxicated. 9. PW.3 Inder Bansal identified the dead body of deceased Rattan Lal at the time of recovery of the dead body as well as before the doctor. 10. PW.4 Bhupinder Kumar Sharma, Security Inspector, Nahar Sugar Mills, Amloh, has stated that on 19.12.1997, he was present on main gate of the Sugar Mills on the security duty. He has proved that on that day, 101 bags of sugar, which were purchased by Pawan Kumar Sanjay Kumar, Ellnabad from Nahar Sugar Mills, Amloh, were loaded in truck No. HR- 29B-8329 and thereafter, the truck left the Mill at 4.50 PM. The consignment of the truck was to go to Ellnabad. 11. PW.5 Ashok Kumar, who was working as Godown Incharge with Nahar Sugar Mills, Amloh, has stated that on 19.12.1997, two traders of firm Pawan Kumar Sanjay Kumar, who were having DO letter (Ex.P6) of Prem Sugar Agency came to the Godown along with Driver and Cleaner of Crl. A. No. 680-DB of 2001 -7- truck No. HR-29B-8329. After satisfying the formalities of transaction, 101 bags of sugar were loaded in the said truck and were handed over to the traders along with the Driver and the Cleaner. 12. PW.6 Dinesh Kumar, complainant, reiterated his entire version, as stated by him to the police in his initial statement and he has fully supported the case of the prosecution, on each and every aspect of the case. 13. PW.7 Parshotam Mittal has stated that two-three days prior to 8.1.1998, both the appellants came to him in his factory at Ludhiana and made extra judicial confession that they had loaded 101 bags of sugar at the instance of Rattan Lal from Nahar Suugar Mills to be unloaded at Ellnabad. Thereafter, with intention to mis-appropriate the sugar bags, they murdered Rattan Lal by throttling him and threw his dead body in the canal. They further disclosed that they had sold some of the sugar bags and were still in possession of some bags. 14. PW.14 Sunil Kumar, Clerk, RTO Office, Faridabad proved that truck No. HR-29-8329 was registered in the name of Lakhbir Singh (A-1) and Nazar Singh sons of Gurmukh Singh. 15. PW.15 Bhulla Singh, Inspector, who is the Investigating Officer of this case, has proved all the material documents, prepared by him, and he has fully supported the case of the prosecution. 16. In their statements under Section 313 Cr.P.C., both the appellants denied all the allegations appearing against them in the prosecution evidence. They simply pleaded innocence and false implication Crl. A. No. 680-DB of 2001 -8- in the case after picking them from their house. A-1 has also denied the fact that he is owner of truck No. HR-29B-8329. Both the appellants have also denied the loading of 101 bags of sugar in the aforesaid truck. In their defence, the appellants have examined DW.1 C Dogar Khan. 17. The trial court, while relying upon the strong motive for the appellants to commit the crime, the medical evidence, the evidence of last seen as well as the extra judicial confession and the recovery of some of the sugar bags, truck and belongings of the deceased, at the instance of the appellants, convicted and sentenced them, as indicated above. 18. We have heard the arguments of learned counsel for the parties and have gone through the trial court record. 19. Learned counsel for the appellants contends that the last seen evidence led by the prosecution is doubtful. There was delay of seven days in lodging the FIR, which has not been explained by the complainant. The complainant has failed to prove that the sugar was purchased in his name from Nahar Sugar Mills, Amloh. Rather, as per the evidence available on record, the sugar was purchased in the name of M/s Pawan Kumar Sanjay Kumar of Ellnabad. The best witness to prove that the sugar was purchased in the name of the complainant was his tradesman, namely Bajaj Billa of Ludhiana, through whom the sugar was purchased. However, this witness has not been examined by the prosecution. Learned counsel further argued that the extra judicial confession, allegedly made by the appellants before Parshotam Mittal (PW.7) is not believable. In this regard, they submit that Crl. A. No. 680-DB of 2001 -9- Parshotam Mittal was a relative of the deceased and there was no occasion for the appellants to make extra judicial confession before him. Learned counsel have contended that in this case, the FIR was lodged after the recovery of the dead body of Rattan Lal, though the same was ante-dated, as is evident from the fact that in the FIR, complete details and even description of the appellants was given. They further submitted that the police has planted the recoveries in the instant case, as at the time of the alleged recoveries at the instance of the appellants, no independent witness was associated. Learned counsel for the appellants argued that the medical evidence also contradicts the prosecution version. If the death would have taken place seven days prior to the day of the post mortem examination, then the body would have completely putrefied. This indicates that death of Rattan Lal had not taken place at the time, when it is alleged to have taken place. Learned counsel further submit that the circumstantial evidence in this case is not complete and capable of explanation of any other hypothesis except that of the guilt of the appellants, as the complete chain of circumstantial evidence in this case is missing. 20. On the other hand, learned counsel for the respondent-State argued that the delay in lodging the FIR has been satisfactorily explained by the complainant. She has further submitted that it has been proved on record that the appellants had got effected the recoveries of sugar bags, cash, one silver ring and one wrist watch of deceased Rattan Lal. Learned counsel further submit that chain of the circumstantial evidence in this case is Crl. A. No. 680-DB of 2001 -10- complete. Therefore, according to the learned counsel, the trial court has committed no illegality while convicting the appellants on the basis of the evidence and the documents, available on record. 21. We have considered the submissions made by learned counsel for the parties and have carefully gone through the record of the case. 22. Undisputedly, it has been established in the present case that on 27.12.1997 at about 12.30 PM, when the police party was searching for Rattan Lal, his dead body was found in the canal bridge of Behrampur. The dead body was duly identified by complainant Dinesh Kumar (PW.6) and Inder Bansal (PW.3). On the same day at 4.00 PM, Dr. B.S. Chabra (PW.1) conducted the post mortem examination on the dead body of deceased Rattan Lal. He found one ligature mark encircling the neck completely, below the thyroid cartilage. From the viscera taken, in the report of the Chemical Examiner (Ex.P4), it was further found that the deceased was given intoxication. In the opinion of the doctor, the cause of death was due to asphyxia resulting from strangulation, in addition to the deceased being intoxicated. Thus, the homicidal death of Rattan Lal has been proved. 23. In the present case, there is no direct evidence of causing death of Rattan Lal. The case of the prosecution is based upon circumstantial evidence. As per the prosecution version, on 19.12.1997 at about 4 AM, complainant Dinesh Kumar along with Rattan Lal proceeded to Amloh to purchase sugar. On that day, at about 10.30 AM, they reached Ludhiana to get the purchase order for purchasing sugar from Nahar Sugar Mills, Amloh Crl. A. No. 680-DB of 2001 -11- through their agent Bajaj Billa. Then they hired a truck bearing registration No. HR-29B-8329, which was being owned and driven by A-1. On the said truck, A-2 was working as a Cleaner. At about 4/5 PM, they got loaded 101 bags of sugar in the said truck, which were to be delivered at Ellnabad. The complainant asked Rattan Lal to accompany the truck and he himself went to Ellnabad by bus. When neither the truck nor Rattan Lal reached Ellnabad, the search was made and ultimately, on 26.12.1997, the matter was reported to the police. 24. In the present case, by examining PW.4 Bhupinder Kumar Sharma and PW.5 Ashok Kumar, who were working as Security Inspector and Godown Incharge, respectively, in Nahar Suggar Mills, Amloh, the prosecution has proved that on 19.12.1997, 101 bags of sugar were loaded in the aforesaid truck, which was being owned and driven by A-1. PW.6 Dinesh Kumar (complainant) has proved that those 101 bags were purchased by them from Nahar Sugar Mills, Amloh and they hired the aforesaid truck of A-1 for transporting the sugar bags from Amloh to Ellnabad and they got loaded the sugar bags in the said truck on 19.12.1997 at about 4/5 PM. 25. Learned counsel for the appellants argued that as per the statements of PW.4 Bhupinder Kumar Sharma and PW.5 Ashok Kumar, those sugar bags were purchased by M/s Pawan Kumar Sanjay Kumar through Prem Sugar Agency, Ludhiana. Therefore, according to the learned counsel, the prosecution has not established that those sugar bags were Crl. A. No. 680-DB of 2001 -12- purchased by the complainant and Rattan Lal and they got loaded the same in the truck of the appellants, and this break in the chain of circumstantial evidence creates doubt in the prosecution version that Rattan Lal was murdered by the appellants with dishonest intention to mis-appropriate the sugar bags. We do not find force in this contention of learned counsel for the appellants. As per the trade practice, in the purchase documents, name of the purchasing firm is recorded and names of the persons coming to purchase the material are not mentioned. Similarly, name of the agent, through whom such material is purchased, is not recorded, but name of the firm of the said agent is recorded in the purchase document. Therefore, mentioning of the names of M/s Pawan Kumar Sanjay Kumar, Ellnabad, and Prem Sugar Agency, Ludhiana, as the purchasing firm and agent, respectively, in the Delivery Order (Ex.P6), does not create any doubt that the complainant did not purchase and got loaded the said sugar bags in the truck in question. It has been established by leading positive, concrete and reliable evidence that on 19.12.1997 at about 4/5 PM, 101 sugar bags were loaded in truck No. HR-29B-8329 for transporting the same from Amloh to Ellnabad. In their statements under Section 313 Cr.P.C., both the appellants have denied even this fact. There is no evidence or even a suggestion by the appellants to the prosecution witnesses that those sugar bags were delivered by them at Ellnabad to M/s Pawan Kumar Sanjay Kumar. Therefore, in our opinion, the testimony of PW.6 Dinesh Kumar that after purchasing 101 sugar bags from Nahar Sugar Mills, Amloh, he got loaded the same in the Crl. A. No. 680-DB of 2001 -13- truck of A-1, and Rattan Lal was deputed to accompany the truck to Ellnabad, cannot be disbelieved. Thus, it has been proved that after loading the sugar bags in the truck in question on 19.12.1997 at about 4/5 PM, Rattan Lal remained in the company of the appellants for travelling in the said truck to Ellnabad. When neither the truck nor Rattan Lal reached the destination on the next day, after waiting for 2-3 days, and then after searching for Rattan Lal in his relations, the matter was reported to the police on 26.12.1997. It is the contention of learned counsel for the appellants that the prosecution has not explained the delay in reporting the matter to the police. We do not find any substance in this contention. When the truck and Rattan Lal did not reach the destination, the complainant waited for 2-3 days under the impression that the truck might have gone out of order. Thereafter, he started searching Rattan Lal and the truck and when could not find any clue for the same, he reported the matter to the police. In these circumstances, in our opinion, it cannot be said that there was any inordinate delay in lodging the FIR. In this regard, conduct of the complainant cannot be said to be abnormal or improbable. Therefore, merely on this account, the prosecution case cannot be thrown out. 26. Learned counsel for the appellants further contends that Bajaj Billa, through whom the sugar was allegedly purchased by the complainant and Rattan Lal, has not been examined by the prosecution. In our opinion, once from the statements of PW.4 Bhupinder Kumar Sharma, PW.5 Ashok Kumar and PW.6 Dinesh Kumar, it has been established that the Crl. A. No. 680-DB of 2001 -14- complainant and Rattan Lal purchased 101 bags of sugar from Nahar Sugar Mills, Amloh and got loaded the same in the truck in question, then merely because of non-examination of Bajaj Billa, it cannot be said that no sugar was purchased by the complainant and Rattan Lal from Nahar Sugar Mills, Amloh. 27. The third important circumstantial evidence, which has been established, is the evidence of extra judicial confession. As per the prosecution, both the accused made extra judicial confession before PW.7 Parshotam Mittal, who had produced them before the police on 8.1.1998. The said witness is having his cycle-parts factory at Ludhiana. He has stated that he knew both the accused prior to the occurrence, as he used to send goods in their truck. He also stated that he being a political person had influence in the police. Therefore, both the accused came to him and disclosed that they had committed the alleged crime and they be produced before the police. In our opinion, testimony of this witness cannot be discarded on the ground that he was remotely related to the complainant. Learned counsel for the appellants put much emphasis on the relationship of this witness with the complainant. Though this witness has no direct relationship with the complainant, but on the basis of the alleged remote relationship between them, it has been argued that it is not safe to rely upon the extra judicial confession allegedly made by both the accused before this witness, for convicting two persons for the offence of murder. We do not find any force in this contention of learned counsel and in our opinion, Crl. A. No. 680-DB of 2001 -15- testimony of PW.7 Parshotam Mittal cannot be discarded on this score alone. On a careful examination of the testimony of this witness, we do not find any infirmity, improbability or untrustworthiness in the testimony of this witness. 28. After the arrest of both the accused in this case on 8.1.1998, on the next day, they were interrogated by the police, upon which they made disclosure statements, in pursuance of which A-2 got recovered watch of the deceased from his house, whereas A-1 got recovered ` 60,000/- and one silver ring of the deceased from his residential house, and the truck in question, containing 26 bags of sugar, was got recovered by A-1 from the house of his aunt in village Rajindergarh. The recovery of these articles further establish the guilt of the accused. Learned counsel for the appellants argued that these recoveries cannot be taken against the appellants, because while effecting these recoveries at the instance of the appellants, no independent witness was associated. In the present case, recovery of the aforesaid articles has been duly proved from the statement of PW.15 Bhulla Singh, Inspector, the Investigating Officer in the case. No suggestion was put to this witness that the police deliberately did not associate the independent witnesses, who were available at the time of the recoveries. Merely because no independent witness was associated, the recoveries cannot be disbelieved and discarded. In the instant case, there was no reason of false implication of both the accused and planting of false recoveries of the aforesaid articles. Crl. A. No. 680-DB of 2001 -16- 29. An argument has been raised by learned counsel for the appellants