IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 784-DB of 2004 DATE OF DECISION : 16.02.2011 Bhupinder Singh alias Bhinda .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Sanjeev Sharma, Advocate, for the appellant. Mr. K.D.S. Sidhu, DAG, Punjab. * * * SATISH KUMAR MITTAL , J. 1. Appellant Bhupinder Singh alias Bhinda was tried by the court of Sessions Judge, Amritsar, for committing the murder of Dharamvir, an Octroi Clerk, aged about 45 years. The trial court, vide its judgment and order dated 29.4.2004, convicted the appellant under Section 302 IPC, and sentenced him to undergo imprisonment for life and to pay a fine of ` 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of six months. 2. As per the prosecution case, on 31.8.2002 at about 7.55 AM, Ram Singh (PW.4), Peon in the Municipal Committee, Patti, posted at Octroi Post No. 4, Khem Karan Road, Patti, found the dead body of Crl. A. No. 784-DB of 2004 -2- Dharamvir lying in a pool of blood near the wooden Diwan on the floor in the Octroi Post room. On that day, Ram Singh was to perform the duty at the aforesaid Octroi Post from 8.00 AM to 4.00 PM, on the completion of duty hours of Dharamvir. On noticing the dead body of Dharamvir, Ram Singh reported the matter to the officials of the Municipal Committee, Patti, and thereafter, he along with them proceeded to Police Station to lodge the report. In the way, near Sabzi Mandi, Patti, the police party headed by Anil Kumar, SI/SHO (PW.11), met them and at 9.50 AM, Ram Singh, Peon (PW.4) made statement (Ex.PG) to Anil Kumar, SI/SHO, on the basis of which the formal FIR (Ex.PG/3) was registered at 10.55 AM. The police reached the spot and prepared rough site plan (Ex.PO) of the place of occurrence. One blood stained brick (Ex.P1), lying there, was taken into possession vide recovery memo Ex.PQ. Vide separate recovery memos Ex.PQ/1 and Ex.PQ/2, blood was also lifted from the wooden Diwan and the floor, respectively. The recovery of brick was effected in the presence of ASI Sucha Singh and ASI Surinder Kumar. The inquest report (Ex.PE) was prepared. After completing the formalities, the dead body of deceased Dharamvir was sent for post mortem examination. 3. On the same day i.e. on 31.8.2002, Dr. Sukhwinder Singh, Medical Officer, Civil Hospital, Patti (PW.3) conducted the post mortem examination of the deceased and he found the following two injuries on the body of the deceased : Crl. A. No. 784-DB of 2004 -3- 1. A lacerated wound 5 x 1 cm on forehead, just above eyebrow. On dissection, underlying bone was found fractured. Meninges was found torn. About 100 ML of blood was found present in the cranial cavity. The brain was found lacerated. 2. Left side of face was depressed. Underlying maxilla bone was fractured. Left side nasal bone was fractured. Left eye was crushed. Bleeding was present from nose and left ear. The doctor opined that the death in this case was caused by shock and haemorrhage due to both the aforesaid injuries, which were sufficient to cause death in the ordinary course of nature. According to him, the probable duration between injury and death was immediate and between death and post mortem, it was 12 to 24 hours. 4. As per the prosecution version, on 30.8.2002 at about 10.30/11.00 PM, Mohan Singh (PW.6), Lambardar of village Patti, had seen the accused for the last time, while coming out of the room of the Octroi Post. On becoming suspicious, he entered into the Octroi Post room, and saw that dead body of Dharamvir was lying in a pool of blood and a brick was also lying near the dead body. His statement was recorded by the police on 15.10.2002. During investigation, on 22.10.2002, the police also recorded the statement of Jarnail Singh (PW.7), in which he had stated that on 1.10.2002 at about 9 PM, when he was sitting and taking meal in the Hotel of Vinod, opposite Bus Stand, Patti, he had over-heard the talk between the accused and another person. At that time, the accused was in Crl. A. No. 784-DB of 2004 -4- drunken condition and he was saying that on 30.8.2002 at about 10.30 PM, he had murdered Dharamvir, Octroi Clerk. 5. On the basis of the aforesaid material, the police sought production warrant of the accused, who was already confined in District Jail, Amritsar, in connection with some other murder case. In pursuance of the production warrant, the accused was arrested in this case on 30.12.2002. Thereafter, he was interrogated and in pursuance of his disclosure statement (Ex.PH), he got recovered one purse (Ex.P4) containing the photograph (Ex.P5) of deceased Dharamvir, which was kept concealed by him in the bricks lying in ITI, near electric pole in the area of Patti. The purse and the photograph were taken into possession by Mukhtiar Singh SI/SHO (PW.8), vide recovery memo (Ex.PJ), duly attested by ASI Sucha Singh and HC Narinder Singh. Rough site plan (Ex.PK) of the place of recovery was prepared. 6. After completion of investigation, the challan was filed and charges under Sections 302 and 404 IPC were framed against the appellant, to which he did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined twelve witnesses, out of whom PW.3 Dr. Sukhwinder Singh, who conducted post mortem examination on the body of the deceased; PW.4 Ram Singh complainant; PW.5 Gulshan Kumar, who had proved that from 10.00 PM on 30.8.2002 to 8.00 AM on 31.8.2002, Dharamvir (deceased) was to perform the duty of Octroi Clerk at Octroi Post No. 4, Khem Karan Road, Patti and Crl. A. No. 784-DB of 2004 -5- thereafter, from 8.00 AM to 4.00 PM on 31.8.2002, Ram Singh, Peon, was to perform this duty; PW.6 Mohan Singh, the witness of last seen; PW.7 Jarnail Singh, who over-heard the accused talking to another person regarding the commission of murder of Dharamvir by him; PW.8 Mukhtiar Singh, SI, who arrested the accused in pursuance of production warrants and effected the recovery of purse, containing photograph of the deceased, in pursuance of the disclosure statement of the accused; and PW.11 Anil Kumar, the then SI/SHO Police Station Patti, who recorded the statement of the complainant and conducted the initial investigation, are the material witnesses. 8. In his statement under Section 313 Cr.P.C., the accused denied all the incriminating evidence, appearing against him, pleaded his innocence and false implication in the case. However, he did not lead any evidence in his defence. 9. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the aforesaid evidence of last seen, over-heard and recovery of a blood stained brick from the place of occurrence and a purse containing photograph of the deceased at the instance of the accused, the trial court convicted and sentenced the appellant, as mentioned in the first para of the judgment. 10. Learned counsel for the appellant argued that case of the prosecution is based upon circumstantial evidence and the prosecution has miserably failed to establish the circumstances, which may lead to the Crl. A. No. 784-DB of 2004 -6- irresistible conclusion that it is only the appellant, who has committed the alleged crime. According to the learned counsel, the prosecution is relying upon the evidence of last seen, i.e. the statement of PW.6 Mohan Singh, and the circumstantial evidence of over-heard, i.e. the statement of PW.7 Jarnail Singh. In addition to this, the prosecution is further relying upon the recovery of a blood stained brick from the place of occurrence and a purse containing the photograph of the deceased, at the instance of the accused. Except these three types of circumstantial evidence, there is no other evidence against the accused. Learned counsel, while referring to the statement of PW.6 Mohan Singh, argued that the testimony of this witness, who is a stock witness of the police, is wholly unreliable and untrustworthy. He argued that according to the statement, made by this witness before the police, which was recorded after 2 ½ months of the occurrence, he had seen the accused on the day of occurrence, while coming out of the room of the Octroi Post and when this witness entered in the room, he saw the dead body of the deceased lying in the pool of blood, but the conduct of this witness regarding not informing the police or the wife of the deceased, immediately thereafter, is un-natural and on the basis of statement of such a witness, a person cannot be convicted for the offence of murder. 11. Learned counsel for the appellant further argued that PW.7 Jarnail Singh, who allegedly over-heard the accused on 1.10.2002 at about 9 PM, in a hotel, saying that on 30.8.2002 at about 10.30 PM, he had murdered Dharamvir, Octroi Clerk, has not supported the prosecution Crl. A. No. 784-DB of 2004 -7- version, when he appeared as a witness during the course of trial. He further argued that the alleged recovery of purse, containing photograph of the deceased, by Mukhtiar Singh SI/SHO (PW.8), in pursuance of the alleged disclosure statement of the accused, is also not reliable and trustworthy, because the disclosure statement (Ex.PH), recovery memo (Ex.PJ) and the rough site plan (Ex.PK), allegedly prepared at the time of the recovery, do not bear any date. He further pointed out that while effecting the recovery from the open place, no independent witness was associated, and even none of the two official witnesses, in whose presence the aforesaid recovery was allegedly effected, has been examined by the prosecution. Learned counsel further argued that blood found on the brick (Ex.P1), alleged to have been recovered from the place of occurrence, has not been connected with the blood group of the deceased. Thus, the link evidence is also missing. 12. On the other hand, learned counsel for the respondent-State, while supporting the impugned judgment and order, argued that in view of the circumstantial evidence of last seen and the over-hearing of the confession by the accused regarding commission of murder of Dharamvir, coupled with the recovery of a blood stained brick from the place of recovery and a purse, containing photograph of the deceased, in pursuance of the disclosure statement of the accused, the trial court has rightly convicted and sentenced the appellant. 13. We have considered the submissions made by learned counsel for the parties and have gone through the impugned judgment as well as the Crl. A. No. 784-DB of 2004 -8- trial court record. 14. From the medical evidence, available on record, it has been established that death of Dharamvir was homicidal in nature. The entire case of the prosecution is based upon the circumstantial evidence. In this regard, the prosecution is relying upon the statement of PW.6 Mohan Singh Lambardar, who allegedly had seen the accused for the last time on the day of occurrence, i.e. 30.8.2002, at about 10.30/11.00 PM, while coming out of the room of the Octroi Post, where this witness subsequently found the dead body of Dharamvir lying in the pool of blood. A perusal of the statement of this witness clearly reveals that his testimony is not reliable. He stated that the accused was very well known to him, because father of the accused was very close to him (PW.6 Mohan Singh) and they were residing in Patti. According to this witness, on the day of occurrence, at about 10.30/11.00 PM, he had gone to Khemkaran for strolling and when he was returning from walk and reached near Octroi Post No.4, he saw that the accused was coming out of the gate of Octroi Post. When this witness enquired the accused as to how he had to the Octroi Post, he told that he had to talk with Octroi Clerk on duty there. Thereafter, the accused went away, but this witness became suspicious and he entered into the Octroi Post room, where he found that Dharamvir was lying in a pool of blood and a brick was also lying near him. After that he returned to his home. Because he became afraid of the consequences, therefore, he did not inform the police and even to the family members of deceased Dharamvir. It is pertinent to mention Crl. A. No. 784-DB of 2004 -9- here that for the first time, the police recorded the statement of this witness under Section 161 Cr.P.C., on 15.10.2002, i.e. after about one and half months of the occurrence. In his cross-examination, he admitted that the Police Post was at a distance of only half Kilometer from his house. In spite of that, without informing the police about the occurrence, he straight-way went to his home and even did not talk about the incident to his wife and children or any body else. The conduct of this witness regarding not informing the police or his family members or any other person about the incident, for about one and half months, creates doubt about the credibility of this witness. Normally if a person would have witnessed such an incident, his immediate re-action would have been to inform the matter either to the police or respectable persons of the village. It does not stand to reason at all that why PW.6 Mohan Singh remained silent for about one and half months. Therefore, in our opinion, testimony of this witness, who appears to be a stock witness of the police, is not reliable. Thus, it is not safe to rely upon such a witness for convicting and sentencing a person for the offence of murder. 15. The second evidence, relied upon by the prosecution is the testimony of PW.7 Jarnail Singh, who alleged to have over-heard the accused on 1.10.2002 at about 9 PM in a hotel, saying that on 30.8.2002 at about 10.30 PM, he had murdered Dharamvir, Octroi Clerk. Statement of this witness (which is available on record as Mark A) under Section 161 Cr.P.C., was recorded by the police on 22.10.2002, i.e. after about two Crl. A. No. 784-DB of 2004 -10- months of the occurrence. The said witness, while appearing in the witness box, did not support the prosecution version. He was declared hostile and was cross-examined at length by the Public Prosecutor, but nothing material could come out in favour of the prosecution. 16. After the aforesaid evidence, the only evidence remains against the appellant is the evidence of recovery. As per the prosecution version, on interrogation, in pursuance of the disclosure statement (Ex.PH) made by the accused, one purse (Ex.P4) containing the photograph (Ex.P5) of deceased Dharamvir, which was kept concealed in the bricks lying in ITI, near electric pole in the area of Patti, was got recovered. Recovery of the said purse was effected in the presence of ASI Sucha Singh and HC Narinder Singh. Admittedly, as stated by the Investigating Officer, no independent witness was associated at the time of recovery. The disclosure statement (Ex.PH), recovery memo (Ex.PJ) and the rough site plan (Ex.PK) of the place of recovery, which are alleged to have been prepared at the time of the aforesaid recovery, do not bear any date. Furthermore, in order to prove the aforesaid recovery, except the statement of the Investigating Officer, the prosecution did not examine either of the attesting witnesses. All these facts make the aforesaid recovery doubtful and unreliable. Even the blood found on the brick (Ex.P1), alleged to have been recovered from the place of occurrence, has not been connected with the blood group of the deceased. 17. It is well settled that an order of conviction can be based only on legal evidence and not on hypothetical propositions or unwarranted Crl. A. No. 784-DB of 2004 -11- inferences. In the absence of legal proof, no person can be convicted on the basis of suspicion, howsoever grave it may be. When there is no direct evidence and the case of the prosecution is based upon circumstantial evidence, the court should safeguard itself against the danger of basing its conclusion on suspicions, howsoever strong they may be. In this regard, the Hon'ble Supreme Court in the case of Hanumant v. State of M.P., AIR 1952 SC 343, has laid down that : “In such cases the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 18. In the present case, we are of the opinion that the three pieces of circumstantial evidence, relied upon by the prosecution, as discussed above, are not sufficient to bring home guilt of the accused beyond reasonable doubt. In our view, there is no sufficient legal evidence, on the basis of which the court can come to the conclusion that the appellant had committed the murder of Dharamvir, therefore, the benefit of doubt is to be given to him. Crl. A. No. 784-DB of 2004 -12- 19. In view of above, the appeal is allowed and the impugned judgment of conviction and the order of sentence is set aside. Appellant Bhupinder Singh alias Bhinda, who is in custody, is acquitted of the charges and he be set at liberty forthwith, if not required in any other case. ( SATISH KUMAR MITTAL ) JUDGE February 16, 2011 ( M. JEYAPAUL ) ndj JUDGE