IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Murder Reference No. 2 of 2008 Dated of Decision:- July 30, 2009 The State of Punjab …Prosecutor Versus Darbara Singh …Accused/Respondent 2) Criminal Appeal No. 138-DB of 2008 Darbara Singh ....APPELLANT Versus The State of Punjab ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present:- Mrs Vandana Malhotra, Advocate for the appellant. Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ MEHTAB S.GILL, J. This is a murder reference sent by the learned Additional Sessions Judge (Adhoc), Jalandhar for confirmation of death sentence awarded to Darbara Singh son of Jagjit Singh. We will be deciding both Murder Reference No. 2 of 2008 and Criminal Appeal No.138-DB of 2008 by a common order, as they arise out of the same order/judgment dated 7.1.2008 of the learned Additional 2 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 Sessions Judge (Adhoc), Jalandhar, whereby he convicted Darbara Singh son of Jagjit Singh under Section 302 IPC and sentenced him to death. He was directed to pay a fine of Rs.20,000/-, in default to further undergo R.I. for two years. Darbara Singh son of Jagjit Singh was further convicted under Section 364 IPC and sentenced to undergo 10 years R.I. and to pay a fine of Rs.5,000/-, in default to further undergo R.I. for six months. Darbara Singh was also convicted under Section 201 IPC and sentenced to undergo R.I. for five years and to pay a fine of Rs.2,000/-, in default to further undergo R.I. for six months. The case of the prosecution is unfolded by the statement Ex.PFF of Mohammad Vakil given to Inspector Pritam Singh at Basti Mithu, Jalandhar. Mohammad Vakil stated, that he is a resident of Sugrain, Police Station Bissar, District Darbhanga (Bihar). Now he is staying in Basti Mithu, Police Station Sadar, Jalandhar. On 25.10.2004 at about 2.00 p.m., his son Khursheed aged about 5 years, height about 2 feet, hair cut, wearing light brown shirt and knicker of black colour, bare footed and his niece Ronku d/o Mohammad Pappu, who had come 7-8 days earlier from Village Nahalan, were missing. Ronku was six years old. She had hair cut. She was wearing printed shirt of red and had worn red colour bangles. She was wearing scissors chappal. They were playing near Kherra Palace, which is near their house. They did not come home. They had been searching for them till that day i.e. till 27.7.2004 but had not been found there. 3 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 This entry (statement of Mohammad Vakil) was made in the Rapat Roznamcha and was endorsed vide Rapat No.13, dated 28.10.2004. Inspector Pritam Singh along with a police party was present in Basti Mithu, in connection with verification of Rapat No.13, that Pritam Singh Jathedar, son of Labh Singh, resident of Basti Mithu told him, that he saw a man at about 2.15 p.m. whose description was aged about 50 years, height 5’-8”, clean shaven, hair having mixture of black and white and a mole on the right eye brow and wearing a coca-cola pant, carrying two children on his cycle, whose age appeared 5/6 years. One of the children was wearing light brown shirt and black colour knicker and another child was wearing a printed shirt of red colour and bangles of red colour. They were going towards Basti Bawa Khel to canal minor. He could identify the man. He has suspected, that he was taking the children with the intention to murder them. Inspector Pritam Singh sent this statement through HC Atma Singh for registration of a case under Section 364 IPC to Police Station Sadar Jalandhar. On the basis of this statement, FIR Ex.PFF/2 was registered at Police Station Sadar Jalandhar on 28.10.2004 at 7.00 p.m. and the special report reached the J.M.I.C., Jalandhar on 29.10.2004 at 4.00 a.m. The prosecution to prove its case brought into the witness box, Dr. Gurpal Singh PW1, C.Charanjit Singh PW2, C.Baljinder Singh PW3, HC Gopal Singh PW4, C.Gurnam Singh PW5, MHC Gurpal Singh PW6, Dalip Singh Draftsman PW7, Nar Bahadur PW8, Balkar Singh Naib Tehsildar PW9, SI Harbhajan Kaur Finger Print Expert PW10, Akbir Singh 4 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 PW11, Dr.Ashok Chanana PW12, HC Mohinder Singh PW13, Sh. Gurnam Singh Dhillon, JMIC, Jalandhar PW14, HC Raghu Nath Singh PW15, C-I Nirmal Singh PW16, C.Jagiri Lal PW17, Manohar Lal Naib Tehsildar PW18, Parbodh Kumar Patwari PW18, Inspector Pritam Singh PW19, HC Tarlochan Singh PW20, HC Gopal Krishan PW21, DSP Rajinder Singh PW22, Mohd. Pappu PW23, Mohd. Vakil PW24, Pritam Singh PW25, Prabhjot Singh PW26, ASI Mohinder Singh (Retd.) PW27 and SI Nirmal Singh PW28. Learned counsel for the appellant has argued, that there is an unexplained delay in lodging of FIR Ex.PFF/2. Jathedar Pritam Singh PW25 saw the appellant taking two children on a cycle on 25.10.2004 at 2.15 p.m. He heard a hue and cry, but still did not report the matter to the police or to the parents of the deceased. He kept quiet till 28.10.2004. The father of Khursheed deceased, Mohd. Vakil PW24 and the father of Ronku deceased, Mohd. Pappu PW23 did not inform the police for two days. They had come to know about the missing of their children on 25.10.2004 in the afternoon, but reported the matter to Inspector Pritam Singh, who was standing at Basti Mithu on 27.10.2004. Strangely it has been mentioned in DDR Ex.PFF by the Investigating Officer, that no case was made out. It is strange that the parents kept quiet for two days and the police also wrote in DDR Ex.PFF, that no case is made out. Till 27.10.2004 nothing was known either to the parents of the deceased or the police. FIR Ex.PFF/2 came into existence on 28.10.2004 at 7.00 p.m. and the special report was sent to the Ilaqa/Duty Magistrate on 29.10.2004 at 4.00 a.m., though it had to be sent 5 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 from the police station, which is situated at Jalandhar, to the J.M.I.C. who also stayed at Jalandhar. The finger prints, which have been taken of the appellant on the liquor bottle and glass from the sugarcane fields, have not been mentioned in Inquest Reports Ex.PD and Ex.PH. In Site plan Ex.PEE, which was made by Parbodh Kumar Patwari PW18, there is no mention of the liquor bottle or glass. These articles kept lying with the police for 10 days and they were sent to the FSL on 10.11.2004. This is a clear concoction, as alleged the liquor bottle and glass were recovered on 30.10.2004. The last seen evidence as propounded by Jathedar Pritam Singh PW25 has loopholes. This witness (PW25) has stated, that he saw appellant taking the two children i.e. Khursheed and Ronku on his cycle on 25.10.2004 at about 2.15 p.m. He heard the hue and cry in the Basti (Locality) of the children being taken away, but strangely he did not say anything till 28.10.2004. It was on 28.10.2004 that he gave his statement to the police, he strangely kept quiet for three days, though at the time when the children were being taken away, he apprehended that they would be killed. The chain of events and circumstances are not complete. No DNA test was conducted of the appellant or blood samples were taken to prove that he is the one who had committed the crime on the deceased Khursheed and Ronku. Nor was the appellant medically examined as to whether he was sexually fit or not. 6 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 Learned counsel for the State has argued, that there is no delay in lodging of the FIR. Occurrence had taken place on 25.10.2004 at 2.00 p.m. DDR Ex.PFF was lodged on 27.10.2004 by Mohd. Vakil PW24 and thereafter the police came into action. Jathedar Pritam Singh PW25 is an independent witness. He has no axe to grind against the appellant. He is the one who saw the appellant taking away the deceased children. In these times, no independent person is ready to come forward to depose against the accused lest he himself also become a victim. The recovery of liquor bottle, which had finger prints on it, was witnessed by senior officers i.e. Rajinder Singh DSP PW22, Manohar Lal Naib Tehsildar PW18, SI Harbhajan Kaur PW10 and ASI Mohinder Singh PW27. The owner of the sugarcane field from where the recovery was made, Akbir Singh PW11 has stated in his testimony, that the recoveries were made in front of him. The order of taking finger-prints of the appellant was passed by Sh. Gurnam Singh Dhillon, JMIC PW14; order being Ex.PY/1. The finger-prints impressions of the appellant were taken vide Ex.PZ and Ex.PZ/1. The delay of 10 days was only due to the exigencies of police duties and administrative reasons. It has come in evidence that the liquor bottle and glass were kept in safe custody and were not tampered with. The motive for the commission of the offence is very clear. The medical evidence shows that there are ruptures on the private parts of both the deceased and the appellant had sexually intercourse with them. We have heard the learned counsel for the parties and perused the record with their assistance. 7 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 The testimony of Jathedar Pritam Singh PW25 is crucial to establish the guilt of the accused. In his statement before the Court, Pritam Singh PW25 has stated, that he is a member of the working committee of Akali Dal. On 25.10.2004 at 2.15 p.m., he was coming from the side of Basti Bawa Khel towards Basti Mithu. When he tried to come on the road, he saw a person going on a bicycle with two children, one was sitting on the front rod and the other was on the carrier. The cycle was proceeding towards the canal. When he reached Basti Mithu, he heard a hue and cry that a person had kidnapped the children. Pritam Singh PW25 rushed back to the place where he had seen the accused, but the appellant was not traceable. Mohd.Vakil PW24 and Mohd. Pappu PW23, the fathers of the children were telling about the description of the children. The boy was the son of Mohd. Vakil PW24 and the girl was the daughter of Mohd. Pappu PW23. On 28.10.2004 he (PW25) gave his statement to the police. He also gave description of the appellant. On 29.10.2004 he was going from the Leather Complex to meet one of his friends and he stopped at the police naka. He asked the police officials as to why they were holding a naka. In the meanwhile, he saw the appellant coming on a bicycle from the opposite direction and told the police that he was the same person, who had kidnapped the children. This testimony of Pritam Singh PW25 has glaring holes in it. Pritam Singh PW25 strangely kept quiet for three days in spite of he knowing that two children had been kidnapped from the locality. He even identified those children by giving the description. Pritam Singh PW25 did 8 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 not tell both Mohd.Pappu PW23 and Mohd Vakil PW24 or the police about what he had seen on 25.10.2004 at 2.15 p.m. It is on 28.10.2004 that he gave his statement to the police. He noticed that the children were being taken for some ulterior purpose. This witness is not telling the truth. If he had been present at the time, when the children were kidnapped, he would have immediately told what he had seen to Mohd. Pappu PW23 and Mohd. Vakil PW24. If not the parents of the deceased, he would have gone to the police to inform them, as he was a political man, who are not hesitant or shy to go to the police. Pritam Singh PW25 has further stated, that he knew a number of incidents of child lifting were taking place. The testimony of this witness is not credible. His conduct is not natural. He is a planted witness and does not give any credence to the prosecution case. In Tara Chand Vs. State of Haryana, 2001(2) R.C.R. (Criminal) 496, it has been held by this Court that where there is no eye witness to the occurrence and the witness who had seen the deceased with the appellant and he kept mum for two days, his evidence could not be relied upon. His conduct was unnatural indicating that he is a witness introduced later on. There is an unexplained delay of 40 hours. Occurrence had taken place on 25.10.2004 at about 2.00 p.m. FIR Ex.PFF/2 came into existence on 28.10.2004 at 7.00 p.m. and the special report reached the J.M.I.C., Jalandhar on 29.10.2004 at 4.00 a.m. The police station Sadar Jalandhar and the residences of the Judicial Officers are in Jalandhar. Pritam Singh PW25 saw the appellant taking away the children on 25.10.2004 at 2.15 p.m. He did not report the matter to the police or to the parents i.e the father of deceased Khursheed, Mohd. Vakil PW24 and the 9 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 father of deceased Ronku, Mohd. Pappu PW23. He kept quiet till 28.10.2004. In DDR Ex.PFF, which was recorded on 27.10.2004 on the statement of Mohd. Vakil PW24, it has been stated by the Investigating Officer that no offence is made out for investigation. How and why he came to this conclusion has not been explained by the prosecution. Strangely on 29.10.2004 Pritam Singh PW25 was standing on the naka with the police that he recognized the appellant and he was thereafter taken into custody by the Investigating Officer, Inspector Pritam Singh PW19. The next piece of evidence is the finger prints on the liquor bottle and the glass, which were taken from the fields of Akbir Singh PW11. Strangely, there is no mention of this crucial piece of evidence of the liquor bottle and glass being recovered in both Inquest Reports of Khursheed deceased Ex.PD and Ronku deceased, Ex.PH. In the scaled Site Plan Ex.PEE Parbodh Kumar Patwari PW18, there is no mention of the liquor bottle and glass. Both these articles i.e. the liquor bottle and glass tumbler were kept in the police station for 10 days, as they were allegedly recovered on 30.10.2004 and sent to the Forensic Science Laboratory on 10.11.2004. Keeping the liquor bottle and glass in custody for 10 days and not sending them to the Forensic Science Laboratory, a suspicion does arise in our mind that the finger-prints were tampered with. Manohar Lal Naib Tehsildar PW18 has stated in his testimony, that Sarpanch and Panch of the village were present. The witnesses to the recovery of the liquor bottle and glass and dead-bodies were Rajinder Singh DSP PW22, Manohar Lal Naib Tehsildar PW18, SI Harbhajan Kaur PW10 and ASI Mohinder Kaur (Retd.) PW27, all official witnesses. No effort was 10 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 made by the Investigating Officer to get the signatures of the independent witnesses i.e. the Sarpanch and Panch on the recovery memos. If the recovery memos. i.e.Ex.PCC and Ex.PDD were also attested by these witnesses i.e. Sarpanch and Panch, it would have given a lot of authenticity to the recovery. Coupled with this, Rajinder Singh DSP PW22 has contradicted the statement of Manohar Lal Naib Teshildar PW18 by stating that the Sarpanch and Panch were not joined, but only the owner of the land was present. Hon’ble Supreme Court in Mohd. Aman Vs.State of Rajasthan, 1997 AIR (SC) 2960 has held that the finger-prints being lifted and articles being kept in the police station for five days, accused is entitled to acquittal; which is as under: - “8. After careful perusal of the evidence adduced in proof of the above circumstance we notice a glaring missing link, in that, the prosecution has failed to establish that the seized articles were not- or could not be- tampered with before it reached the Bureau for examination. Though evidence was led to prove that after seizure the articles were packaged and then sealed, no evidence was led to indicate what was the mark given in the seals and whether the Bureau received the packages with the marked seals intact. Indeed, even the contemporaneous letters exchanged between them (Ext.P.59 and P.60) do not throw any light on this aspect of the matter. Rather, other circumstances appearing on record make the prosecutikon case doubtful in this regard; first, the articles were kept in the police station for five days without any justifiable reason, secondly the Investigating Officer (PW20) admitted that the seal, mark of which was put on the articles, was with him since the time of seizure and lastly his letter (Ext.P.59) 11 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 forwarding the seized articles to the Bureau contains admittedly, an overwriting as regards the date of its writing/dispatch and no satisfactory explanation is forthcoming for the same. Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also casts a serious mistrust as to genuineness of the evidence. Even though the specimen finger prints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken, before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger prints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate”. In the case in hand, the articles were kept in custody for 10 days without any explanation from the prosecution. Every criminal case has got to be decided on the totality of the circumstances and the evidence before the Court. Two little children have been sodomised and raped, but it was incumbent upon the prosecution to get a foolproof case with all the circumstances linking the appellant with the crime before the Court. Unfortunately, the prosecution has miserably failed to complete the chain of circumstances, but in fact has implanted false witnesses, whose testimony is not worthy of any credence. Time has come for the police to use scientific methods of investigation in such like cases and to drop the archaic methods of investigation. 12 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 It has also been held by this Court in Ved Parkash @ Bhagwan Dia Vs. State of Haryana, 2006(3) R.C.R. (Criminal) 992 as under: - “16. Admittedly, there is no direct evidence against the appellants. The prosecution has rested its case on circumstantial evidence. It has been consistently laid down by the Apex Court that when a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of other person (see Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063; Eradu v. State of Hyderabad, AIR 1956 SC 316). In the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre- requisites before conviction should be recorded. They are: - 1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established; 2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. The circumstances should be of a conclusive nature and tendency; 4. They should exclude every possible hypothesis except the one to be proved; and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all 13 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008 human probability the act must have been done by the accused”. Similarly in the case in hand, the circumstances and the link evidence is not complete. With the above discussion and observations, Murder Reference No.2 of 2008 is declined. Criminal Appeal No.138-DB of 2008 is allowed. Benefit of doubt is given to the appellant. His conviction and sentence is set aside. He is acquitted of the charges framed against him. If in custody and not wanted in any other case, he be set free forthwith. (MEHTAB S.GILL) JUDGE (JITENDRA CHAUHAN) July 30, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO 14 Murder Reference No. 2 of 2008 and Criminal Appeal No. 138-DB of 2008