Cr. A. No. 451-DB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Cr. A. No. 451-DB of 2001 Date of decision : 01-02-2011 Malkiat Singh … Appellant Versus. State of Punjab … Respondent CORAM:- HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. T.S.Sangha, Sr. Advocate, with Mr. H.S.Sangha, Advocate, and Mr. R.S.Rangpuri, Advocate, for the appellants in Criminal Appeals No. 451-DB of 2001 and 641-DB of 2001 Mr. PPS Duggal, Advocate, for the complainant in Crl. Revision No. 2241 of 2002 Mr. D.S. Brar, DAG Punjab … ARVIND KUMAR, J: This shall dispose of two criminal appeals, i.e. Crl. A. Nos. 451-DB of 2001 preferred by accused-appellant, namely, Malkiat Singh, Criminal Appeal No. 641-DB of 2001 preferred by accused-appellant, namely, Jatinder Singh and Criminal Revision No. 2241 of 2002 filed by complainant Balwinder Singh. . The two appeals, namely, Criminal Appeals No. 451-DB of 2001 and 641-DB of 2001 are directed against judgment and order dated 26/27.7.2001 passed by the Sessions Judge, Ferozepur, whereby in case FIR No. 131 dated 24.12.1997 registered under Section 302/364/201/120-B read with Section 34 IPC at Police Station Ghall Khurd, while acquitting two co- accused of the appellants-accused, namely, Karamjit Kaur and Gurmail Cr. A. No. 451-DB of 2001 2 Kaur, the present appellants-accused have been convicted under Section 302/201 IPC. Under Section 302 IPC, both of them have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- each and in default of payment of fine, to further undergo RI for six months each while under Section 201 IPC, they have been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.100/- each and in default of payment of fine, to further undergo RI for one month each. Both the sentences were, however, ordered to run concurrently. Criminal Revision No. 2241 of 2002 has been preferred by complainant Balwinder Singh against the afore-stated judgment whereby two accused, namely, Karamjit Kaur and Gurmail Kaur have been acquitted of the charges. In brief, the case of the prosecution is that on complainant Balwinder Singh (PW-4) made statement to the police on 24.12.1997, at about 9 AM while he was sitting in his house with Gurdev Singh and were talking to each other, his eldest son Harmit Singh came there with a sum of Rs.70,000/- which he was to deposit as instalment with the bank at Ferozepur. Meanwhile, accused Malkiat Singh and Jatinder Singh, who were having visiting terms to the house of his son Harmit Singh, also came there on their scooter and asked his son as to where he was going. When Harmit Singh told them he had to go to a bank at Ferozepur to deposit the instalment of the tractor loan, both of them stated that since they were also going to Ferozepur, he should sit with them and accordingly, he made him sit in between and went away on the scooter. According to the complainant, when his son Harmit Singh did not return in the evening, he went to the house of Malkiat Singh and on enquiry, he was informed that Harmit Singh had gone to village Jang after depositing the instalment at Ferozepur. On he next day, he went to village Jang to his relations but was told that his son had come there. He then searched for his son amongst his other relations and kept on asking Malkiat Singh and Jatinder Singh but both of them did not give any satisfactory reply. Thereafter, on an enquiry from the bank, he came to know that his son Harmit Singh had not deposited the instalment inthe bank. According to the complainant, he was confident that his son had been either killed by Malkiat Singh and Jatinder Singh in greed of money or he had been concealed some where by them with an intention to kill. On the Cr. A. No. 451-DB of 2001 3 basis of such statement of Balwinder Singh, formal FIR Exhibit P-6/B came to be registered by ASI Harpal Singh. On the next day, i.e. 25.12.1997, Gurdev Singh went to the police station and got recorded his statement. Later, on 31.12.1997, Sarabjit Singh was recorded by the police wherein he stated that on 19.12.1997 accused Jatinder Singh came to him and disclosed as to how they had taken Harmit Singh along with them and since he (Jatinder Singh) was having illicit relations with Karamjit Kaur wife of Harmit Singh and she had asked him to get rid of Harmit Singh, which fact he had discussed with co-accused Malkiat Singh and also wanted to grab six killas of land of Harmit Singh, they planned to kill Harmit Singh. Therefore, while Harmit Singh was going along with them and it grew darker near village Fidda Kalan, they stopped the scooter and thereafter, Malkiat Singh gave 2/3 stick blows on the head of Harmit Singh while he was urinating. When Harmit Singh fell down, they strangulated him with turban and after removing his gold ring, they threw his dead body in the main canal. On the basis of such statement of Sarabjit Singh, offence under Section 302 IPC was added and Sarabjit Singh then produced Jatinder Singh before the police. On 2.1.1998, accused Jatinder Singh made disclosure statement that he had thrown the dead body in the Rajasthan canal and on asking, he led the police to the disclosed area and pointed out the place he had thrown the dead body. While visiting the said place, one Tehal Singh was joined as an independent witness. Then accused Jatinder Singh made disclosure statement in regard to concealment of ring and accordingly, led the police to the place from where he got recovered the said ring and after preparing the site plan and completing other formalities, the same was taken into police possession. On 8.1.1998, PW-7 Balwinder Singh produced accused Malkiat Singh and after recording the statement of Balwinder Singh, Malkiat Singh was formally arrested. On the next day i.e. 9.1.1998, accused Malkiat Singh made disclosure statement almost to the one made by accused Jatinder Singh. He got recovered a dang, one watch make HMT and a sum of Rs.30,000/-, which after being sealed into parcels, were taken into police possession. Thereafter, on 20.4.1998, accused Gurmail Kaur also suffered a disclosure statement and got recovered a sum of Rs.8500/- lying concealed in her house. Cr. A. No. 451-DB of 2001 4 During the course of investigation, PW-9 SI Palwinder Singh with the help of other police officials got searched the dead body from the canal area, i.e. Rajasthan Feeder Canal from Faridkot towards Rajasthan area. The dead body was spotted in the canal area near the bridge in the area of village Hariewala and the same was then taken out from the canal. It was identified by Jasbir Singh and Gurmail Singh, who were also with the police officials at the time of search, to be that of Harmit Singh. The dead body was taken into police possession vide memo. Exhibit P-7 and then its post-mortem examination was got conducted. Site plans of the place of occurrence as well as place of recovery of dead body were also prepared besides completing other formalities. Upon completion of investigation of the case, accused- appellants along with two co-accused, namely, Karamjit Kaur and Gurmail Kaur were challaned. After being produced in Court, accused Malkiat Singh was charged under Section 302 IPC while accused Jatinder Singh was charged under Section 302 read with Section 34 IPC for the murder of Harmit Singh. Both accused Jatinder Singh and Malkiat Singh were also charged under Section 201 IPC for intentionally taking steps to destroy the evidence by throwing the dead body of Harmit Singh into the canal; while accused Gurmail Kaur and Karamjit Kaur were charged under Section 120-B IPC for entering into conspiracy in the murder of Harmit Singh. All these accused pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined PW-1 Dr. K.K.Aggarwal, PW-2 Pardeep Kumar, PW-3 Baldev Singh Patwari, PW-4 Balwinder Singh, PW-5 Sarabjit Singh, PW-6 Gurdev Singh, PW-7 Balwinder Singh, PW-8 ASI Balwinder Singh, PW-9 SI Palwinder Singh and closed its evidence. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded by putting them incriminating evidence qua them to which they pleaded innocence and false implication. Accused Jatinder Singh and Gurmail Kaur took up the plea that they were taken into police custody along with other persons before their alleged date of arrest i.e. 8.1.1998 and 2.1.1998 respectively. Accused Gurmail Kaur pleaded that the money allegedly recovered from her was planted upon her after obtaining the same from her son-in-law Sukhwinder Singh while accused Karamjit Cr. A. No. 451-DB of 2001 5 Kaur took up the plea that she had been falsely implicated in the case at the behest of her father-in-law Balwinder Singh so that she may not get the land of the share of her husband Harmit Singh, under the Succession Law. She pleaded that she was arrested from the house of her husband much earlier than the alleged date of arrest i.e. 8.1.1998. In defence evidence, the accused examined DW-1 Sukhwinder Singh and DW-2 Jail Singh and closed their evidence. The learned Sessions Judge, Ferozepur, upon appreciation of evidence adduced on record, vide the impugned judgment and order though acquitted the two accused, namely, Karamjit Kaur and Gurmail Kaur of the charge under Section 120-B IPC, but held the present accused-appellants guilty under Section 302/201 IPC and convicted and sentenced them in the manner indicated above. Hence, the present appeals by them. Criminal Revision No. 2241 of 2002 has been preferred by complainant Balwinder Singh against the afore-stated judgment whereby the said two accused, namely, Karamjit Kaur and Gurmail Kaur have been acquitted of the charge. We have heard learned counsel for the parties. There is no direct evidence in this case. The case rests upon circumstantial evidence. It is a settled rule of circumstantial evidence that every incriminating circumstance must be clearly established beyond doubt by reliable and clinching evidence and the evidence so proved must form a chain of events which was the only irresistible conclusion about the guilt of the accused can safely be drawn and no other hypothesis against the guilt is possible. The first circumstance that the prosecution has relied upon is that the dceased Harmit Singh left in the company of Jatinder Singh and Malkiat Singh from his house on 19.12.1997 and did not return thereafter. In this context, the prosecution has examined PW-4 Balwinder Singh, father of the deceased Harmit Singh and PW-6 Gurdev Singh. His evidence suggests that on that date, Harmit Singh was having Rs.70,000/- with him and had to go to bank at Ferozepur to deposit the instalment of the tractor. Meanwhile, Jatinder Singh and Malkiat Singh arrived at their house and offered Harmit Singh to accompany them since they were also going to Ferozpur. His testimony has been assailed on the ground that when Harmit Singh did not return, he had not taken immediate action by reporting the Cr. A. No. 451-DB of 2001 6 matter to the police and kept waiting till 24.12.1997 when the missing report was lodged suspecting the present appellants. This cannot ipso facto be a ground to discard the testimony. The Court will have to bear in mind that different witnesses react differently under different situations. It depends upon individuals to individuals. There cannot be any set pattern or uniform rule of human reaction. Post event conduct of a witness varies from person to personand it cannot be a cast-iron reaction to be followed as a model by every one witnessing such event. The statement of PW-4 Balwinder Singh suggests that he had been searching for his son and went to another village, i.e. village Jung and had also searched for him at the houses of other relatives. Even he had enquired from Malkiat Singh and Jatinder Singh for which they had not given any satisfactory reply, which compelled him to lodge the report with the police. Therefore, there have been cogent reasons for not lodging the report immediately, especially under the circumstance that he had never smelt foul play as it is evident from his statement that on the earlier occasions, Jatinder Singh had been visiting Harmit Singh regularly. The statement of PW-4 Balwinder Singh is also not in isolation. His statement is corroborated by PW-6 Gurdev Singh who happened to be present at the house of PW-4 Balwinder Singh when Harmit Singh was preparing himself for going to Ferozepur for depositing the loan instalment and was having Rs.70,000/- with him and meanwhile, Malkiat Singh and Joatinder Singh arrived there and took Harmit Singh along with them. He went away along with them on a scooter as Harmit Singh never returned and only his dead-body was found. The defence has laid much stress that if they had left by 9.10 AM, the money would have been deposited on the same day at Ferozepur but as evident, it was not deposited and as such, the prosecution story is falsified that the deceased had accompanied accused-appellants to Ferozepur for depositing the money. The contention is meritless. The time “9 AM” has been given by PW-4 Balwinder Singh when accused- appellants had arrived at their house and it is not the time that they had left the house. Obviously, this witness did not know as to what happened on the way dueto which the deceased could not deposit the money in the bank on the same day. The argument that had the accused-appellants any intention to Cr. A. No. 451-DB of 2001 7 commit the murder of Harmit Singh, they would not have visited the house of the deceased, is also not tenable for variety of reasons; firstly, it was not that Jatinder Singh etc. had visited the house of the deceased for the first time but on previous occasions as well, they had been visiting his house regularly; secondly, from the extra-judicial confession of the accused, it transpires that Karamjit Kaur wife of deceased Harmit Singh was having illicit relations with Jatinder Singh and though it had been in his mind to get rid of Harmit Singh but on that day, they had just visited the house of the deceased when they came to know about his movement, i.e. going to Ferozepur along with the money and it clicked in their mind to take him along with them and on the way, they had planned to do away with Harmit Singh and for that purpose, they had also purchased a stick and then took the scooter towards village Mudki on the twin canal bank from where ultimately, the dead-body was recovered. PW-6 Gurdev Singh and so as PW-4 Balwinder Singh were subjected to lengthy cross-examination. They stood firm to their stand. PW-6 Gurdev Singh has also no axe to ground and his statement is of an independent witness. Thus, this circumstance so relied upon by the prosecution is fully established. There is another circumstance of extra-judicial confession having been made by appellant Jatinder Singh on 31.12.1997 before PW-5 Sarabjit Singh and by Malkiat Singh and Karamjit Kaur (since acquitted) on 8.1.1998 before PW-7Balwinder Singh. The statement of PW-5 Sarabjit Singh suggests that on 31.12.1997, Jatinder Singh had come to his house and told that on 19.12.1997, he along with Malkiat Singh had gone to the house of deceased Harmit Singh and when noticed that he was to go to Ferozepur to deposit the instalment of bank loan, they took him along with them on the pretext that they are also to go to Ferozepur on scooter. When they reached Ferozepur, they could not deposit the money as they were late and then Harmit Singh was taken to village to show a specified place and had also gone to Muktsar city and Muktsar Gurdwara and the back-ground given by him was that he had illicit relations with Karamjit Kaur wife of deceased Harmit Singh who were not having any issue out of their wed-lock and that she had asked him to get rid of Harmit Singh and this issue was discussed by him with Malkiat Singh and they also decided to grab six killas of land of Harmit Singh and on that date, they decided to take away the Cr. A. No. 451-DB of 2001 8 money, Harmit Singh was carrying and would finish Harmit Singh on the way. He further confessed that when they went towards village Mudki on twin canal bank, it grew dark near village Fidda Kalan and they stopped the scooter on the pretext of taking water and then Malkiat Singh gave 2/3 stick blows on the head of Harmit Singh and when Harmit Singh had fallen down, they strangulated him with the turban. They had also taken Rs.70,000/- and removed his watch and gold ring and then threw the dead body of Harmit Singh in the canal. Almost in the similar fashion is the extra-judicial confession made by Malkiat Singh, appellant, before PW-7 Balwinder Singh. The statement of PW-5 Sarabjit Singh has been assailed on the ground that he was not holding any post and was also having no special relationship with the accused-appellant Jatinder Singh. Similarly argument has been addressed with regard to PW-7 Balwinder Singh. The contention is meritless. It is evident from the statement of PW-5 Sarabjit Singh that at that time, he was President of the Dera of Bidhi Chand Sect at Mudki for the last 5-6 years. It is not that he was a stranger to Jatinder Singh as it has come in his evidence that in village Baruwala, i.e. the village of accused- appellant Jatinder Singh, he only knows Jatinder Singh and no body else. Similarly, PW-7 Balwinder Singh was Lambardar of the village and as stated by him, he had official dealings with the police being a Lambardar of the village. Thus, it cannot be said that they were not holding any post; secondly, it is the choice of the accused before whom they think proper to make the extra-judicial confession. They are not related to the deceased in any way. A fair distant relationship with the complainant party has been suggested to PW-7 Balwinder Singh but that itself is not a ground to discard his testimony. They have no animus against the accused. They have no axe to grind. There is also no evidence on the record if they are stock witnesses of the police or while deposing against the accused, they would be benefitted in any way. They were subjected to length cross-examination but nothing could be extracted from their mouth which could benefit the defence. There is also no ambiguity in their statements. There are hardly any discrepancies. There is no technical error. There are, therefore, no reasons to disbelieve their statements. The medical evidence supports the case of the prosecution. Cr. A. No. 451-DB of 2001 9 PW-1 Dr. K.K.Aggarwal on 3.1.1998, conducted the post-mortem examination on the dead body of Harmit Singh. There are three injuries on the fore-head and head of the deceased, having been caused with a blunt weapon. The doctor has opined that the time elapsed between injuries and death was within few minutes and between death and post-mortem was within about 7 to 15 days, which is in conjunction with the date of occurrence given by the prosecution. Counsel for the appellants has argued that the said injuries on the head can only be caused by a heavy weapon and not by a stick which is stated to have been purchased on that day. This argument is again not tenable as the nature of the injuries depends upon the force used while giving the injury. The dead-body of Harmit Singh was duly recovered on 3.1.1998 from near Burji No. 240 of the Canal Rajasthan Feeder following search in the area of Hariewala, which was taken into possession vide Exhibit P-7. Accused-appellant Malkiat Singh upon his arrest on 9.1.1998 and Jatinder Singh upon his arrest on 31.1.1998, pointed out the place of occurrence and in that regard, memoes. Exhibits P-21 and P-15 were duly prepared indicating that after committing murder, they had thrown the dead- body of Harmit Singh from Burji No. 233 of the same Canal Rajasthan falling in the area of village Phide Kalan indicating that after the occurrence and at the time of recovery of the dead-body, it had flown from Burji No. 233 to Burji No. 240 where the same was recovered. The motive of taking away money, watch and gold ring also stands proved. There had been other recoveries as well from the accused- appellant. On the pointing out of Malkiat Singh, a bamboo dang, an HMT watch and Rs.30,000/- were duly recovered and so as from Jatinder Singh, a gold ring on which 'HS Sekhon' was inscribed. As regards Criminal Revision No. 2241 of 2002 against the acquittal of Gurmail Kaur and Karamjit Kaur, adequate reasons have been given in para 35 of the judgment by the trial Court. Learned counsel appearing on behalf of the complainant has also not shown anything on record so as to persuade the Court to take a view contrary to the one taken by the trial Court. In view of the discussion made above, the trial Court has rightly convicted the accused Malkiat Singh and Jatinder Singh. No Cr. A. No. 451-DB of 2001 10 interference is called for. Both the appeals, namely, Criminal Appeals No. 451-DB of 2001 and 641-DB of 2001 filed by accused Malkiat Singh and Jatinder Singh respectively and so as Criminal Revision No. 2241 of 2002 filed by the complainant, stand dismissed. ( HEMANT GUPTA ( ARVIND KUMAR ) JUDGE JUDGE February 01, 2011 JS