CRIMINAL APPEAL NO.295-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: October 21, 2009. Parties Name Bhupinder Singh ..APPELLANT VERSUS State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. Devinder Kumar Kaushal, Advocate, for the appellant Mr. S.P.S. Sidhu, Advocate, for the appellant in Criminal Appeal No. 242-DB of 2001. Mr. PPS Duggal, Advocate, for the appellants in Criminal Appeal No. 317-DB of 2001. Mr. D.S. Brar, D.A.G., Punjab, for the respondent. JASBIR SINGH, J. ORDER. This order will dispose of four appeals, i.e., Criminal Appeal No. 295-DB of 2001, 242-DB of 2001, 317-DB of 2001 and 446-DB of 2001, as all these have been filed against one judgment. To dictate order, facts are being mentioned from Criminal Appeal No. 295-DB of 2001. It was allegation against the appellant – accused that on April CRIMINAL APPEAL NO.295-DB OF 2001 -2- 6, 1994, he along with Pappi, Ashwani Kumar, Ravinder Singh alias Bittu, Sunil Kumar, Bhupinder Singh and Raj Kumar had committed murders of Kultar Chand and Mohan Singh, within the premises of Swaran Cinema at Faridkot City. Process of criminal law was set in motion at the instance of one Jagtar Singh (PW7), at whose statement (Ex. PG), FIR (Ex. PG/2) was recorded in Police Station Kotwali Faridkot on April 6, 1994, at 2.30 AM. Special report reached the concerned Magistrate at 5.45 AM on the same day at Faridkot. Case of the prosecution, as noticed by the trial Court in para No. 2, of the impugned judgment reads thus: “Briefly stated, the case of the prosecution is that deceased Mohan Singh and Kultar Chand were employees of Swaran Cinema, Faridkot. Jagtar Singh PW was working as Tailor Master, but after finishing his work, he used to sleep in a room situated in the premises of the Swaran Cinema. On 5-4-1994, Krishan Lal alias Pappi alongwith his companion aged 25 years came to meet Kultar Chand deceased because he (Pappi) and Kultar Chand were close relatives. Krishan alias Pappi was known to Jagtar Singh as Krishan alias Pappi used to visit Kultar Chand frequently. Jagtar Singh went to his room for sleeping, leaving Mohan Singh, Kultar Chand, Krishan alias Pappi with his companions. Roshan Lal is a relative of deceased Kultar Chand and Amarjit Singh is a close relative of deceased Mohan Singh and they had also come to see deceased Kultar Chand and Mohan Singh. At about 12 midnight, Jagtar CRIMINAL APPEAL NO.295-DB OF 2001 -3- Singh PW heard the noise, 'Na Maro, Na Maro' and he went to the room of the deceased, where he saw Krishan alias Pappi and his companions, who were armed with weapons like knives and were giving blows to both the deceased. Roshan Lal and Amarjit Singh, who were sleeping outside the room also reached the place of incident and witnessed the occurrence. Krishan alias Pappi and his companions managed to escape with their respective weapons.” As per prosecution story, motive to commit crime was that the deceased have refused to pay money to Krishan alias Pappi. On registration of FIR, investigation was conducted by D.S.P. Gurmej Singh (PW12), who went to the spot, prepared a rough site plan with correct marginal notes. He also prepared inquest report of the dead bodies of Kultar Chand and Mohan Singh and sent the bodies for post-mortem examination to the Hospital. Post-mortem on the dead body of Mohan Singh was conducted by Dr. K.K.Aggarwal (PW1) on April 6, 1994, at 12.10 PM, and he found the following injuries: “1. A reddish brown abrasion 4 x 4 cms on left side of forehead 5 cms above left eye brow. Both black eyes were present. On dissection, huge clotted blood was present on front and top of skull. On removal of haemotoma the skull bone was fractured into pieces. There were multiple laceration of brain matter. 500 cc of fluid and clotted blood was present in cranial cavity. 2. Incised wound 3 x 1 cm on left side of chest 10 cms lateral from left nipple, muscle deep, obliquely placed. CRIMINAL APPEAL NO.295-DB OF 2001 -4- 3. Incised wound 3 x 1 cm on left side of chest, 1.5 cm below and lateral to injury No. 2, muscle deep, obliquely placed. 4. Incised wound 3 x 1 cm on left side of chest , 3 cms lateral to injury No. 3, muscle deep and, obliquely placed. 5. Incised wound 3 x 1 cm, 1 cm below injury No. 4, muscle deep and obliquely placed. 6. Incised wound 6 x 2 cms on left side of abdomen 16 cms below left nipple, obliquely placed. Lacerated piece of large gut was coming out of wound. 7. Incised wound 6 x 2 cms, 2 cms medial to injury No. 6 lacerated loops of large gut was coming out of wound, obliquely placed. 8. Incised wound 6 x 2 cms, 2 cms medial and below injury No. 7, there was corresponding cut on paritonium and large gut, obliquely placed. 9. Incised wound 6 x 2 cms on left side of abdomen, 6 cms below and lateral to injury No. 6, obliquely placed,the lacerated gut was coming out of wound. 10.Incised wound 6 x 2 cms, 3 cm medial and below injury No. 9 underlying paritonium was cut and obliquely placed. 11.Incised wound 6 x 2 cms, 2 cms lateral to injury No. 9, obliquely placed and muscle deep.” This witness has deposed that the injuries were ante mortem in nature and injury No. 1 could be the result of heavy blunt weapon. Other injuries were stated to have been caused with sharp pointed weapon. The CRIMINAL APPEAL NO.295-DB OF 2001 -5- witness has further stated that as per his opinion, cause of death was laceration of brain matter, as a result of injury No. 1. Injuries No. 1,6,7,8 and 9 were individually sufficient to cause death in ordinary course of nature. All the injuries were ante mortem in nature. Subsequent thereto, this witness has also conducted post-mortem examination on the dead body of Kultar Chand, at about 1.30 PM, on the same day and found the following injuries: “1. A reddish brown abrasion 6 x 3 cms on left side of forehead just above lateral part of left eye brow. Both black eyes were present. On dissection huge clotted blood was present on front and left side of skull. On removal of haemotoma , skull was fractured into pieces. There were multiple lacerations of brain matter. 500 cc of fluid and clotted blood was present in the cranial cavity. 2. Incised wound 3 x 1 cm present on left side of chest, 2 cms lateral from sternum, obliquely placed. 3. Incised wound 3 x 1 cm, 1 cm below injury No. 2. 4. Incised wound 3 x 1 cm, 1 cm below injury No. 3. 5. Incised wound 3 x 1 cm, 1 cm below injury No. 4, obliquely placed. 6. Incised wound 3 x 1 cm, 2.5 cm lateral to injury No. 2. 7. Incised wound 3 x 1 cm, 1 cm lateral and below injury No. 6. 8. Incised wound 3 x 1 cm below injury No. 7, obliquely placed. 9. Incised wound 3 x 1 cm below injury No. 8, obliquely placed.” CRIMINAL APPEAL NO.295-DB OF 2001 -6- There were fractures of 3rd and 6th rib and many cuts on the pericardium, plura, heart, left lung etc. All the injuries were ante mortem in nature. It was further opined that injury No. 1 could be the result of heavy weapon and others were caused with sharp pointed weapon. The injuries were found sufficient to cause death in ordinary course of nature. DSP Gurmej Singh (PW12), the Investigating Officer, picked up blood stained earth from the spot and recorded statement of Dharam Pal, who was present near the dead bodies. Beddings of Kultar Chand and Mohan Singh deceased were taken in possession against recovery memos. Blood was removed from the spot and was taken in possession vide memo Ex. PK. This witness has further stated that on April 17, 1994, Radhe Sham, Municipal Commissioner, Ferozepur Cantt., produced before him the accused Ashwani Kumar, Raj Kumar and Sunil Kumar. On interrogation, they suffered disclosure statements, which led to the recovery of the weapons of offence. Bhupinder Singh accused was arrested on June 18, 1994. He also suffered a disclosure statement, which led to the recovery of the weapon of offence. Accused Ravinder Singh and Pappi were arrested on April 18, 1994. On interrogation, they also suffered disclosure statements, which led to the recovery of the weapons of offence. On completion of investigation, final report was put in Court for trial. All the accused were charge-sheeted, to which they pleaded not guilty and claimed trial. It is necessary to mention here that in the meantime, co-accused of the appellant, namely, Raj Kumar was declared a juvenile and his trial CRIMINAL APPEAL NO.295-DB OF 2001 -7- was separated from the others. The prosecution produced 13 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of the appellant and other accused were recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to them. They denied the allegations, claimed innocence and pleaded false implication. They also produced four witnesses in defence. Appellant in this case, namely, Bhupinder Singh took a specific stand that he was picked up from his house. He moved an application for identification parade, which was conducted. However, the prosecution witnesses failed to identify him. Appellant accused also led evidence in defence. The trial Court, on appraisal of evidence, as led by both the parties, found the appellant and his co-accused guilty of the offence with which they were charged. Accordingly, they were convicted for commission of offences under Sections 148 and 302 read with Section 149 IPC . For commission of offence under Section 302 read with Section 149 IPC, they were sentenced to undergo rigorous imprisonment for life and imposed a fine of Rs. 1,000/- each, with a default clause. Lesser punishment was also awarded for commission of offence under Section 148 IPC. Hence these appeals. It has vehemently been argued by counsel for the appellant that it was a case of blind murder. None of the alleged eye witnesses were available at the spot. They were introduced afterwards. It was further argued that motive to commit the crime is not proved on record. It was alsor stated that appellant Bhupinder Singh in this appeal was not identified CRIMINAL APPEAL NO.295-DB OF 2001 -8- by the prosecution witnesses during identification parade, as such his participation in the crime was not proved on record. It is necessary to note here that PW5 Amarjit Singh is the real brother of Mohan Singh deceased. PW6 Roshan Lal is brother-in-law of deceased Kultar Chand. Counsel for the appellant, by stating that conduct of above named witnesses, was most un-natural , argued that their testimony deserves to be ignored. He prayed that the appeal be allowed, impugned judgment and order be set aside and the appellant be acquitted of the charges framed against him. Shri S.P.S. Sidhu, Advocate, in Criminal Appeal No. 242-DB of 2001 and Shri PPS Duggal, Advocate for the appellants in Cr. Appeal No. 317-DB of 2001 also reiterated the arguments , raised by counsel for the appellant in this appeal. Prayers of counsel for the appellants have vehemently been opposed by Shri Daljit Singh Brar, Deputy Advocate General, Punjab. He has contended that recording of the FIR is very prompt, and presence of Jagtar Singh (PW7) cannot be doubted at all, as he is an independent witness and was very quick to report matter to the police agency. He further argued that after their arrest, all the accused suffered disclosure statements, which led to the recovery of weapons of offence. He prayed that the appeals having no substance be dismissed. After hearing counsel for the parties, this Court is of the view that except Bhupinder Singh, appellant in this appeal, and Pappi, appellant in Criminal Appeal No. 317-DB of 2001, the prosecution has miserably failed to prove guilt of other appellants/ accused in these appeals. CRIMINAL APPEAL NO.295-DB OF 2001 -9- It is apparent from the record and not disputed before this Court that FIR(Ex. PG/2) was recorded at the instance of Jagtar Singh (PW7) at 2.35 AM on April 6, 1994. This witness in his statement under Section 161 Cr.P.C. (Ex. PG) has stated that at about 8.30 PM on April 5, 1994, he met both the deceased in their residential quarter, within the premises of Swaran Cinema at Faridkot. At that time, Amarjit Singh (PW5) , brother of Mohan Singh, and Roshan Lal (PW6), a close relative of Kultar Chand, were also found present. In his presence, Pappi and one more person came inside the room of the deceased. This witness went to his own, room on the ground floor. At about 12 O'Clock, in the night, he woke up after hearing noise, he rushed to the room of Kultar Chand and Mohan Singh, there he saw accused Pappi and Bhupinder Singh causing injuries to both the deceased. Roshan Lal and Amarjit Singh were also present there and were raising an alarm. After causing injuries, both the accused left the spot, by saying that they had taught lesson to the deceased for not making the payment. This witness has further stated that he went to the owner of the Cinema, whose house is situated nearby. Owner and his son came to the place of occurrence and enquired from all of them about the incident. Elder son of the owner of the Cinema was going to the Police Station, when on their way, police party met them near the Clock Tower Chowk and then his statement Ex. PG was recorded. In his cross-examination, this witness has specifically stated that after reaching at the spot, he asked the whole story from Roshan Lal and Amarjit Singh Pws. He had also enquired from them as to what was the motive behind the crime. However, they did not respond. This witness has admitted that he failed to identify Bhupinder Singh, appellant, during identification parade. The witness has further CRIMINAL APPEAL NO.295-DB OF 2001 -10- stated that Roshan Lal and Amarjit Singh PWs narrated the entire incident to the Cinema owner when he came to the spot. This Court feels that so far as presence of Jagtar Singh PW at the spot is concerned, it is most natural and probable. The witness was very prompt in reporting the matter to owner of the Cinema and thereafter to the police. PW7 Jagtar Singh is an independent witness. In his statement Ex. PG and thereafter, in Court, this witness has remained confined to the roll attributed to the appellant Bhupinder Singh and Pappi. It is correct that during identification parade, the witness has failed to identify Bhupinder Singh, appellant. However, in view of facts on record, we are of the view that above said fact makes no difference so far as participation of Bhupinder Singh in the crime is concerned. It is apparent from the record that the identification parade was conducted in Jail on June 6, 1994, i.e., after about two months of the date of occurrence. In his statement Ex. PG, Jagtar Singh has given particulars of an unknown person, who was accompanying Pappi accused, it was their first meeting. Under the circumstances, it is possible that after about two months, the witness may fail to identify the appellant – accused. It has also come on record that during identification parade, on request made by appellant Bhupinder Singh that he had some mark under his nose, to cover the same a plastic bandage was put under the nose of the accused and also under the nose of nine other prisoners, who were asked to participate in the identification parade. This Court is of the view that on account of above said fact, the witness Jagtar Singh (PW7) may not have been in a position to identify the appellant, Bhupinder Singh. It is also apparent from the records that on his arrest, the appellant Bhupinder Singh suffered a disclosure statement in the presence CRIMINAL APPEAL NO.295-DB OF 2001 -11- of an independent witness, namely, Amarjit Singh (PW11). His statement led to the recovery of weapon of offence. It is necessary to mention here that except recovery from appellant Bhupinder Singh, recovery of weapon of offence from other accused was not effected in the presence of an independent witness. The knife was stained with blood, which was found to be of human, on examination. Bhupinder Singh, appellant, was identified by PW7 Jagtar Singh in the Court. Under the circumstances, it can safely be said that Bhupinder Singh's participation in the crime was proved on record. On the similar reasons, it can also be held that Pappi accused, whose name figured through out, during investigation from the time of recording statement Ex. PG till its completion, had also participated in the commission of crime. Weapon recovered from him was also sent for examination and it was found stained with human blood. Now we are to see whether participation of appellants Ravinder Singh alias Bittu, Ashwani Kumar and Sunil Kumar is proved on record. Name of these accused have appeared in the statements made by Amarjit Singh(PW5), (brother of Mohan Singh deceased), and Roshan Lal (PW6), (brother-in-law of deceased Kultar Chand). Perusal of statements made by above said witnesses makes it very clear that their presence at the spot was most doubtful. Besides naming Pappi and Bhupinder, these witnesses have also named Raju, Ashwani, Sunil and Bittu as the assailants. To overcome the contradiction in their statements,with the statement made by Jagtar Singh (PW7), it was stated that at the time, when Jagtar Singh reached there, four accused, other than Pappi and Bhupinder Singh, had already left the place on alarm being raised by them. On analysis of statements made by these witnesses it appears CRIMINAL APPEAL NO.295-DB OF 2001 -12- that their conduct was most unnatural. Amarjit Singh (PW5) has stated that after leaving Jagtar Singh (PW7) at the spot, he immediately left for village Renuka Kalan, in the midst of night, to inform his relatives. He further stated that Roshan Lal had left to inform his relatives. Their statements were recorded on April 6, 1994, during day time. When dead bodies were removed to the Hospital for post-mortem, they were not available at the spot. Amarjit Singh has further stated that he had travelled a distance of 70 KMs upto village Renuka. He had also gone to one another village in that process. This witness is the real brother of Mohan Singh deceased, it was expected from him that he would remain at the spot and would make an attempt to inform the police officials in the Police Post, which is situated at a distance of less than 1 KM. To the contrary, he even did not make an attempt to inform owner of the Cinema regarding the incident. This witness has specifically stated that he had not talked with Jagtar Singh (PW7) or anybody else regarding the occurrence. Similarly, PW6 Roshan Lal's conduct, who is real brother-in- law of deceased Kultar Chand, is also not believable. He was working in a Civil Court and is supposed to know the effect of not informing the police regarding the incident. He has his house in the town itself. There was no occasion for him to go to the Cinema hall and stay for the night there. After the alleged commission of offence, his conduct was most unnatural. In his statement, he has stated that thereafter he returned to his home and did not inform the police or anybody else regarding the incident. While going to his house, he had passed in front of the Police Kotwali. He came to the spot only when he was called in the morning at 7.00/ 8.00 by the police. This witness had admitted that he had no particular work or specific purpose to CRIMINAL APPEAL NO.295-DB OF 2001 -13- visit Cinema site on the date of occurrence. To the contrary, Jagtar Singh (PW7) has stated that both Amarjit Singh and Roshan Lal remained at the spot till such time the owner of the Cinema and his son (one of them was an Advocate) came to the spot and they narrated the entire incident to them. Thereafter, Amarjit Singh and Roshan Lal went away to inform their relatives. In view of facts, mentioned above, this Court is of the view that the presence of PW5 Amarjit Singh and PW6 Roshan Lal at the spot is doubtful. If their testimony is excluded from consideration, then virtually there remains no incriminating material available, against Ravinder Singh, appellant, in Criminal Appeal No.242-DB of 2001, Ashwani Kumar, appellant, in Criminal Appeal No. 317-DB of 2001 (co-appellant of Pappi) and Sunil Kumar , appellant in Criminal Appeal No. 446-DB of 2001. So far as recovery effected from above named persons is concerned, it was made from a place which was open and accessible to all and that too in the presence of official witnesses only. Counsel for the appellants has stressed that there is contradiction in the medical evidence and the ocular version projected by the prosecution. By making reference to injury No. 1 to both the deceased, he has argued that it was the result of a heavy blunt weapon, however, no explanation has been given as to how and who caused those injuries. This Court is of the opinion that the objection raised is liable to be rejected. The Doctor has specifically stated that those injuries could be caused by fall from some height. It appears that in the process, when injuries were being caused to the deceased by Pappi and Bhupinder Singh, they had a fall, which resulted into injuries, as mentioned above. CRIMINAL APPEAL NO.295-DB OF 2001 -14- In view of facts, mentioned above, Criminal Appeal No. 295- DB of 2001 titled as Bhupinder Singh v. State of Punjab is dismissed, his conviction and sentence are affirmed. Criminal Appeal No. 317-DB of 2001 is dismissed qua Pappi son of Hoshiar Singh, his conviction and sentence are also affirmed. However, appeal is allowed qua Ashwani Kumar son of Ram Chander, his conviction and sentence are set aside and he is acquitted of the charges framed against him. Other two appeals , i.e., Criminal Appeal No. 242-DB of 2001, titled as Ravinder Singh alias Bittu v. State of Punjab, and Criminal Appeal No. 446-DB of 2001 titled as Sunil Kumar v. State of Punjab, are allowed . Convictions and sentences awarded to Ravinder Singh alias Bittu and Sunil Kumar, appellants, are set aside and they are acquitted of the charges framed against them. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE October 21, 2009. DKC