CRIMINAL APPEAL NO. 905-DB OF 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: January 21, 2009 Parties Name Harjap Singh ...APPELLANT. VERSUS State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. Baldev Singh, Senior Advocate, with Mr. Arshvinder Singh, Advocate, for the appellant. Ms. Manjari Nehru Kaul, D.A.G., Punjab; JASBIR SINGH, J. JUDGMENT The appellant has filed this appeal against judgment and order dated December 3, 2005, vide which he was convicted for commission of an offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- with a default clause. The prosecution story as noticed by the trial Court in paras No.1,2 and 3 of the judgment under challenge reads thus: “The facts, in brief, are that Lakhwinder Singh son of Nachattar Singh, resident of village Handa, P.S. Moonak, lodged report CRIMINAL APPEAL NO. 905-DB OF 2005 -2- with the police vide FIR Ex. P12 on 27.11.2004 and stated therein that he work as a mechanic in a tractor agency at Moonak. Jarnail Singh son of Kaka (deceased) of his village was also a mechanic in the said agency and they used to come to the agency together. They also used to go to their village together. 2. On 27.11.2004 at about 6.30 PM, after finishing their job, they were going to their village, and on the way were purchasing vegetable from a shop. In the meantime, a Marshal jeep of white colour bearing No. HR-23B-0586 came from the side of Patran at a high speed and hit the back tyre of Swaraj tractor and sowing machine which was attached with the tractor. Thereafter, it hit Escort tractor going behind Swaraj tractor. 3. Lakhwinder Singh and Jarnail Singh went near the Marshal jeep and advised the driver to drive carefully as they were passing a city. The person who was driving the vehicle said in anger “Harjap Singh tell them for advising us.” In the meantime, that person fired a shot from the pistol carried by him in his hand which hit the chest of Jarnail Singh who fell down. Lakhwinder Singh complainant asked them what they did and that very person again fired at Lakhwinder Singh who turned towards one side within no time. The person who was carrying the pistol stated “Buta Singh , fire has hit a man and they should run away”. Both the persons sitting on the front seat, and four persons sitting on the back seat alighted CRIMINAL APPEAL NO. 905-DB OF 2005 -3- from the vehicle and ran away towards Jakhal.” It was case of the prosecution that the occurrence was witnessed by above said Lakhwinder Singh (PW2), Fauja Singh (PW6) and one Nirmal Singh. They removed Jarnail Singh to the Civil Hospital, Moonak, where he was declared brought dead. After recording the FIR, Investigating Officer Darshan Singh, SI (PW13) went to the spot, got prepared rough site plan (Ex. P-60). He took in possession Marshal jeep bearing registration No. HR 23B-0586 vide memo Ex. P-24. Front wind screen of the jeep, which was lying at the spot in a broken condition, was also taken in possession vide memo Ex. P-25. Two tractors, in a damaged condition, were also taken in possession against Memos. The Investigating Officer then went to the Civil Hospital, prepared inquest report of the dead body of Jarnail Singh and sent it for post-mortem examination. He also recorded statements of the witnesses. As per prosecution version, both the accused, namely, Harjap Singh and Buta Singh were produced before the Investigating Officer by PW5 Baldev Singh on November 29, 2004. They were arrested by preparing arrest Memos Exs P-19 and P-20. Appellant Harjap Singh produced his .32 Bore revolver Ex. P-62. On unloading it, four live cartridges and two empties (cartridges' cases) were recovered. Those were taken in possession vide Memo Ex. P-16 along with Arms licence. During investigation, statement of one Karam Singh was recorded, wherein he has stated that on November 27, 2004, at about 6 PM, he had seen the appellant and accused Buta Singh sitting in the above mentioned jeep. The appellant was holding a pistol in his hand. Similarly, Mohan Singh PW stated in his statement that on the above said date, at about 6.30 CRIMINAL APPEAL NO. 905-DB OF 2005 -4- PM, he met Buta Singh and the appellant, who was carrying pistol in his hand and he gave a ride to them on his motor-cycle upto village Dehlan. Baldev Singh (PW5) has stated that both the accused had made extra- judicial confession before him admitting that they had killed Jarnail Singh. He further stated that he produced the above said accused before the Investigating Officer, in his presence, they were arrested and revolver, live and empty cartridges were taken in possession. On completion of investigation, final report was put in Court for trial. The appellant and co-accused Buta Singh pleaded not guilty to the charges and claimed trial. The prosecution, to prove its case, produced 20 witnesses and also brought on record documentary evidence. It is necessary to mention here that all eye witnesses, produced by the prosecution had turned hostile and did not support its case . The trial Court then looked into circumstantial evidence and came to a conclusion that guilt of the appellant was proved on record and he was convicted and sentenced, as found mentioned in earlier part of this order. However, co-accused Buta Singh was given benefit of doubt and accordingly acquitted. The appellant – accused was also acquitted for commission of offences under Section 307 IPC and Section 27 of the Arms Act. Shri Baldev Singh, Senior Advocate, counsel for the appellant has vehemently contended that it is a case of no evidence against the appellant and the trial Court has committed an error in passing the judgment under challenge. By making reference to the statements of the alleged eye witnesses, namely, Lakhwinder Singh (PW2) , Fauja Singh (PW6) and Nirmal Singh (PW7), he argued that above said witnesses have denied that any occurrence had taken place in their presence. By taking us through the CRIMINAL APPEAL NO. 905-DB OF 2005 -5- statements made by Baldev Singh (PW5), counsel argued that a story of making extra -judicial confession by the appellant and his co-accused was negatived by this witness. This witness has further stated that the appellant and his co-accused were not arrested and revolver, cartridges etc. were not taken in possession in his presence. He further argued that the prosecution has failed to prove that the lead bullet, which was recovered from dead body of the deceased, was fired from revolver of the appellant. To say so, reference has been made to the report of the Forensic Science Laboratory Ex. P-74. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charges framed against him. Prayer made by counsel for the appellant has been opposed by Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab. She vehemently argued that there exists sufficient circumstantial evidence on record, which indicates towards participation of the appellant in the crime. To support her contention, she argued that Marshal jeep, which admittedly was ownership of father of the appellant, was recovered at the spot. Lead bullet recovered from the dead body was of .32” calibre, which clearly establishes that the bullet was fired from the revolver owned by the appellant. She further argued that all the witnesses have failed to explain as to how their signatures appeared on the papers prepared by the Investigating Officer. She further averred that there existed material contradictions in the suggestions given to the Investigating Officer and the defence taken by the appellant in his statement recorded under Section 313 Cr.P.C., which clearly indicates towards guilt of the appellant – accused. She further argued that the eye witnesses have failed to support prosecution case for extraneous CRIMINAL APPEAL NO. 905-DB OF 2005 -6- consideration, otherwise, their presence at the spot was proved on record. She prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, we are not inclined to interfere in this appeal at the instance of the appellant. Some admitted facts are: i) Appellant is resident of village Manghera, Police Station Tohana, district Fatehabad (Haryana); ii)Marshal jeep bearing No. HR-23B-0586 was the ownership of a member of the appellant's family; iii)Revolver, which was taken in possession by the Investigating Officer against recovery memo, was licensed in the name of the appellant; iv)Two tractors, being driven by Fauja Singh and Nirmal Singh, were hit by a vehicle. Marshal jeep recovered from the spot was in a damaged condition.” In the absence of ocular version, now we have to see whether circumstancial evidence existing on record prove participation of the appellant in the alleged crime or not. In this case, it appears that the witnesses have resiled for the reasons best known to them. As per prosecution version, deceased Jarnail Singh was shot dead by the appellant in the presence of Lakhwinder Singh at about 6.30 PM. FIR Ex. P-12 was recorded at the instance of Lakhwinder Singh at 7 PM. Special report reached Ilaqa Magistrate at 7 AM on November 28, 2004, at Sunam at a distance of 30 Kms. In his deposition in Court, Lakhwinder Singh (PW2) has stated that he had not seen the appellant -accused firing a shot at the CRIMINAL APPEAL NO. 905-DB OF 2005 -7- deceased. He reached at the spot at 7 PM on November 27, 2004. On hearing that Jarnail Singh deceased had met with an accident, he went to the Civil Hospital, where he saw Fauja Singh and Nirmal Singh Pws. lying unconscious. The facts on record clearly indicate that the witness had told a lie in the Court. In his cross-examination, this witness has admitted his signatures on the FIR Ex. P12, which was recorded in the Police Station at 7 PM. The witness has failed to give any explanation for his signatures existing on the above said document. Not only this, the prosecution has successfully proved that this witness has shifted the deceased to the hospital. Above said fact is amply proved from the reading of contents of ruqqa (intimation) Ex. P-57 sent by Dr. G.L.Goyal (PW10) from Civil Hospital to the Police Station. In the above said document it is mentioned by the doctor that it was Lakhwinder Singh, who had brought the deceased to the hospital. In Court other eye witnesses, namely, Fauja Singh (PW6) and Nirmal Singh (PW7) also did not support case of the prosecution. As per case of the prosecution, above named witnesses had seen the occurrence and that tractors, jeep etc. were also taken in possession in their presence. In Court Fauja Singh (PW6) had stated that the documents Exs. P-24, P-25 and P-26 bear his signatures. He has failed to give any explanation for the same, which clearly indicates that his statement before the police was correct. Fauja Singh (PW6) has further stated that the vehicle, which hit his tractor, was not stopped at the spot. The photographs Ex. P-30 to P-42 clearly negative his stand. As per statement made by Mahesh Kumar (PW9), a Photographer, the snaps were taken after 7.30 PM . In the photographs , CRIMINAL APPEAL NO. 905-DB OF 2005 -8- referred to above, Marshal jeep is standing next to the tractors, in a damaged condition. The tractors are also shown damaged in the photographs. The above said fact clearly negatives stand of the appellant – accused that the jeep was taken away forcibly by the police officers from his house, which is situated at a distant place. Arrival of dead body in the hospital, lodging of FIR, action of taking tractors and damaged jeep in possession and receipt of special report by the Magistrate at Sunam at a distance of 30 Kms are very prompt, which indicate that the first version given by the prosecution was absolutely correct. Dr. Sanjay Bansal (PW1) had conducted post-mortem on the dead body on November 28, 2004. He had noticed the following injury on the person of the deceased: “1. An entry wound 0.5 cm x 0.5 cm oval, blackening present around, lacerated punctured wound on left side of chest below left nipple. On dissection, clotted blood was present and a track was traced leading to _ bullet in the left scapular region. Clotted blood was present all along the track. Left lung was lacerated badly as clotted blood was present in upper part of left leg.” Bullet recovered was taken in possession and it was sent to Forensic Science Laboratory for examination. As per case of the prosecution, the appellant had fired two shots. When he was produced before the Investigating Officer by Baldev Singh (PW5) on November 29, 2004, revolver was also taken in possession. On unloading it, four live CRIMINAL APPEAL NO. 905-DB OF 2005 -9- cartridges and two empty cases of the cartridges were recovered. Revolver and empty cartridges were also sent for examination to the Forensic Science Laboratory. Vide report Ex. P-74, Ballistic Expert has opined as under: “Two .32 inch K.F., S&WL cartridge cases marked C/1 and C/2 contained in parcel 'A' had been fired from .32 inch IOF Revolver No. G 0002. 2. No definite opinion can be given regarding firing of one .32 inch lead bullet marked CB/1 from .32 inch IOF Revolver No. G 0002, due to lack of sufficient individual characteristic marks. 3. The caliber of one lead bullet marked CB/1 contained in parcel 'C', is 0.32 inch.” Reading of the report, mentioned above, suggests that the lead bullet, which was recovered from the dead body and its firing from the revolver in question has not absolutely been negatived. It has only been said that for lack of sufficient individual characteristic marks, no definite opinion can be given in that regard. Investigating Officer Inspector Darshan Singh (PW13) has stood test of the cross-examination. To him, following suggestion was put by counsel for the appellant – accused: “It is incorrect that I allegedly arrested the accused from the house of Chhotu Ram. I do not know whether Chhotu Ram is of Akali party.” It is necessary to mention here that above said Chhotu Ram was CRIMINAL APPEAL NO. 905-DB OF 2005 -10- not produced to prove that fact. In his statement under Section 313 Cr.P.C., the appellant – accused has taken the following defence: “I am innocent. I have been implicated falsely in this case. Police lifted me from my house forcibly. The jeep and revolver were also brought by the police from our house and police fired two shots from my revolver.” Subsequent statement made runs contrary to the earlier stand taken by the appellant when Investigating Officer was cross-examined. As has been mentioned earlier, jeep was found present at the spot by the Investigating Officer at about 7.30 PM. The above said fact was proved by the photographs and statement made by the Photographer (PW9). Admittedly, the appellant is a resident of district Fatehabad in the State of Haryana. Within short span of 45 minutes, it would not have been possible for the police officials to bring jeep from that place to the place of occurrence, especially when the jeep was in a damaged condition. It was case of the prosecution that the appellant – accused had made an extra judicial confession before Baldev Singh (PW5) , in whose presence he also handed over revolver to the Investigating Officer. To the above said witness, it has nowhere been suggested by the appellant – accused that when revolver was taken in possession by the Investigating Officer, he had fired two shots from it. The trial Court has noticed above said facts and then came to a conclusion that the prosecution was successful in proving guilt of the appellant . We feel that the verdict given is perfectly justified. It is a case where human beings have resiled for reasons best known to them, however, circumstances show that Jarnail Singh was murdered by the CRIMINAL APPEAL NO. 905-DB OF 2005 -11- appellant. It has not come on record that with regard to his false implication, the appellant or his family had ever approached the higher authorities. It has also not been suggested anywhere that the Investigating Officer was inimical to the appellant so that it may be inferred that he was interested in falsely implicating the appellant in this case. In view of facts, mentioned above, no case is made out for interference. Dismissed. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE January 21, 2009. DKC