Crl. Appeal No.D-589-DB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.D-589-DB of 2002 Date of Decision : 07.07.2011 Accharjit Singh @ Chhinda s/o Sittra Ram r/o village Mangural, P.S. Banga District Nawanshahr. ... Appellant Versus State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: None for the appellant. Mr. Surinder Singh Dhaliwal, Addl. A.G.,Punjab, for the respondent-State. -- Vijender Singh Malik, J. This is an appeal preferred by Accharjit Singh @ Chhinda, appellant against the judgment of conviction and order of sentence dated 16.10.2001 passed by the Court of Additional Sessions Judge, Nawanshahr convicting the appellant for an offence punishable under section 302 read with section 34 of the Indian Penal Code and sentencing him to life imprisonment and to pay a fine of Rs.2000/-, in default of payment whereof to undergo rigorous imprisonment for six months. Crl. Appeal No.D-589-DB of 2002 -2- The case set up by the police of Police Station Banga District Nawanshahr against the appellant and one Balbir Singh (since a proclaimed offender) is as under:- Vijay Kumar, deceased, a resident of Jalandhar Cantt, had been employed as a Cashier with Oriental Bank of Commerce, Moron Branch. He used to visit his bank daily from his house and had been returning therefrom in the evening. On 26.04.2000, Vijay Kumar left his house for the bank and did not return home in the evening. On the next day, Sham Sunder,elder brother of the deceased, made telephonic inquiry from the bank about the whereabouts of Vijay Kumar. An employee of the said bank only told them that Vijay Kumar had not come to attend his duties in the bank on that day. On 27.04.2000 at about 7.00 AM Jaswant Singh, a member panchayat of village Manguwal, was present at his house. His wife was the Sarpanch of the said village at that time. Jaga Singh, his cousin brother, came to him in the meanwhile and told him that dead body of a male , aged about 45 years, clean shaven, wearing pant and shirt, from whose nose blood was oozing out, who had suffered injuries by iron rods, was lying in front of the house of Resham Singh, Lamberdar. He accompanied Joga Singh to that place and found the dead body unidentifiable. Thereafter, he alongwith Crl. Appeal No.D-589-DB of 2002 -3- with Joga Singh went to the police station after leaving the dead body in the custody of Avtar Singh, a neighbour of said Lamberdar. When they reached Bus Stand Kahma, Surinder Mohan, SI/SHO met them. Surinder Mohan, SI/SHO recorded his statement, Ex.PD. After recording the statement of Jaswant Singh, Surinder Mohan, SI made his endorsement thereon and on the basis of the same, FIR Ex.PD/3 was recorded at the Police Station Banga by Balbir Singh, Assistant Sub Inspector. Thereafter, Surinder Mohan, Sub Inspector accompanied Jaswant Singh and Joga Singh to the spot and prepared a rough site plan thereof. Thereafter, photographs of the dead body were got taken by the photographer. The blood stained earth, which was lifted from the spot, was converted into a parcel and sealed with the seal 'SM'. Thereafter he conducted the inquest proceedings. The dead body was then sent for post-mortem examination. Dr. J.P.S. Cheema, Medical Officer, Civil Hospital Banga conducted post-mortem examination on the dead body of the unknown male at 2.00 PM and noticed 24 injuries on his person. According to him, death in the case was the result of haemorrhage and shock due to injuries no. 9 to 12 and 24, which were sufficient to cause death in the ordinary course of nature. The doctor handed over the clothes of the deceased to Subhash Chander, constable, who produced Crl. Appeal No.D-589-DB of 2002 -4- the same before Surinder Mohan, Sub Inspector and the same were given the shape of a sealed parcel and were taken into possession. On 29.04.2000, Surinder Mohan, SI, met Ashok Sharma, brother-in-law of the deceased, Sham Sunder, brother of the deceased and Deepika alias Gudia wife of the deceased. Surinder Mohan, SI had shown the photographs and the clothes of the deceased to them and they identified the deceased to be Vijay Kumar. Surinder Mohan, SI, recorded the statements of all the three witnesses. On 01.05.2000 Yash Pal, Assistant Manager, OBC, Moron Mandi met Surinder Mohan, SI and made a statement to him that on 26.04.2000 when he was posted as Assistant Manager in Oriental Bank of Commerce, Moron Mandi Branch, he was going on a scooter having his peon Manjit Singh on the pillion of his scooter. He also told Surinder Mohan, SI that when they were near Khatkar Kalan , they found that their Cashier Vijay Kumar was grappling on the road side with two persons near a tea shop. He also disclosed the names of those two persons as Balbir Singh son of Sohan Singh and Achharjit Singh alias Chhinda before Surinder Mohan, Sub Inspector. He further disclosed that they went away after separating them. Crl. Appeal No.D-589-DB of 2002 -5- On 12.05.2000 Surinder Mohan, SI, arrested Accharjit Singh @ Chhinda, who suffered a disclosure statement to the effect that he could get recovered semi burnt shirt from the court yard of his house and also his identity card and driving licence from a room of his house. In pursuance of the disclosure statement made by Accharjit Singh @ Chhinda led the police party headed by Surinder Mohan, SI,and has got recovered semi burnt pieces of shirt, ash as well as identity card and driving licence of Vijay Kumar The semi burnt pieces of shirt were sealed with seal 'SM'. The driving licence, identity card and the parcel of semi burnt shirt were taken into possession vide a recovery memo. On 15.05.2000 Accharjit Singh @ Chhinda, accused was again interrogated and he suffered a disclosure statement Ex.PS to the effect that he concealed one wooden stick in the plants of hemp, in the area of Khatkalan, which he could get recovered. The said statement was signed by the accused and attested by Labh Singh, Head Constable. In pursuance of the said disclosure statement, Accharjit Singh @ Chhinda, led the police party to the place of concealment of danda, and got the same recovered. Rough site plan of the place of recovery of the danda was prepared. After receipt of the report of the Scientific Officer (Serology), Forensic Science Laboratory, Punjab, Chandigarh, to the effect that Crl. Appeal No.D-589-DB of 2002 -6- danda was stained with human blood and on completion of other residual investigation, challan against the accused was prepared by Surinder Mohan, Sub Inspector himself. Learned Additional Sessions Judge, Nawanshahr found a prima-facie case against Accharjit Singh @ Chhinda, accused for an offence punishable under section 302 read with section 34 of the Indian Penal Code vide order dated 15.10.2001. To the charge so framed against him, the accused pleaded not guilty and claimed trial. The prosecution in support of its case, has examined 12 witnesses in all and closed its evidence. Accharjit Singh @ Chhinda, accused was examined thereafter in terms of section 313 of the Code of Criminal Procedure. All the incriminating material appearing in the prosecution evidence was put to him in the shape of questions. The statement of the accused is of denial to the prosecution evidence and he has claimed himself to be innocent and to have been falsely implicated in the case. He had led no evidence in his defence. After hearing learned Public Prosecutor for the State, learned counsel for Accharjit Singh @ Chhinda, accused and going through the evidence on record, learned trial Court convicted and sentenced the accused as stated hereinbefore. Crl. Appeal No.D-589-DB of 2002 -7- Feeling aggrieved against the judgment of his conviction and the order of sentence passed by the trial Court, the instant appeal was filed by the appellant. None is appearing on behalf of the appellant. We have heard Mr. Surinder Singh Dhaliwal, Additional Advocate General for the respondent-State, and have gone through the evidence on record of the case, as also the judgment of the trial court carefully and for the following reasons, we have found the conviction and sentence of the appellant to be ill-founded. As pointed out by learned Additional Advocate General for the respondent-State, there is a statement of Yashpal, PW-9 in this case to prove that Vijay Kumar, deceased was seen grappling with the appellant and one Balbir Singh at about 7.30 PM on 26.04.2000. According to him, the dead body of Vijay Kumar was noticed by Joga Singh and on his information Jaswant Singh noticed the dead body in the early hours on 27.04.2000 i.e. at 7.00 AM. He has further submitted that the statement of Yashpal, PW-9, qualifies for the evidence of the deceased having been last seen together with the appellant and his co-accused. He has further submitted that in pursuance of the disclosure statement of the appellant, Surinder Mohan, Sub Inspector had not only recovered semi burnt pieces of shirt alongwith Crl. Appeal No.D-589-DB of 2002 -8- ash, driving licence and identity card of Vijay Kumar from the possession of the accused, but also a wooden stick (danda) which was concealed in the plants of hemp by the appellant, on which human blood was detected by the Scientific Officer (Serology), Forensic Science Laboratory Punjab, Chandigarh. He has further submitted that these circumstances were sufficient to prove the guilt of the appellant for the murder of Vijay Kumar. We can not agree with the submissions made by the learned Additional Advocate General for the respondent- State because none of the aforesaid pieces of evidence is reliable. Considering the statement of Yashpal, PW-9, it would be appropriate to notice that he did not mention the fact regarding grappling of the appellant alongwith his co- accused with the deceased to the brother and the wife of the deceased when they made inquiries from him on telephone about Vijay Kumar on 27.04.2000. Admittedly, Yashpal, PW-9 did not know the appellant and his co-accused on 26.04.2000 and he has stated that he came to know about the identity of those persons as Balbir Singh and Accharjit Singh @ Chhinda. He was cross-examined on this aspect and has stated therein that the names of Balbir Singh and Accharjit Singh @ Chhinda were disclosed to him 3 or 4 days after the said occurrence by some shopkeepers and people in the Crl. Appeal No.D-589-DB of 2002 -9- adjoining locality. However, he could not re-call the names of such persons or the shopkeepers. He has further stated that he told the police in this regard on 29.04.2000 but admittedly there had been no statement of this witness with the prosecution recorded on 29.04.2000. His statement with the police is dated 01.05.2000 and during this intervening period of about five days, he did not disclose this incident to the police or the family members of the deceased. Yashpal, PW-9 had, moreover, seen the persons grappling with Vijay Kumar for a short-while at about 7.30 PM on 26.04.2000. The Investigating Officer did not arrange a test identification parade of the accused-appellant before this witness to test his powers of observation and his memory. Identification of the appellant by Yash Pal, PW at the trial is therefore not a reliable piece of evidence to establish his identity as the person grappling with the deceased in the evening of 26.04.2000. It is more so in the absence of the statements of the shopkeepers and the persons of the adjoining locality, who disclosed the identity of the assailants to Yash Pal. Yash Pal, PW-9 happened to pass by that side by chance. When Yash Pal, PW-9 in his statement had stated that the appellant and Balbir Singh were grappling with the deceased, the Investigating Officer should have gone to Crl. Appeal No.D-589-DB of 2002 -10- the place of occurrence and should have inquired about the matter from the shopkeepers. But the Investigating Officer did not do so. Therefore, the statement of PW-9 Yash Pal is not found to be creditworthy. Coming to the weapon of offence i.e. danda, it may be noticed that Surinder Mohan, Sub Inspector, PW-12 did not say that he had converted the same into a parcel and sealed it at the time of recovery. No doubt, Ex.PT, the report of Scientific Officer (Serology), Forensic Science Laboratory, Punjab, Chandigarh shows that the danda was stained with human blood yet a close perusal of the statement of Dr. J.P.S. Cheema, Medical Officer, PW-1, who conducted post-mortem examination on the dead body of Vijay Kumar, would show that none of the 24 injuries found on the deceased was a bleeding injury. Except for a few abrasions, the others are reddish contusions. The doctor has not mentioned in his report that any blood was coming out of those injuries. Blood is reported to have been found but in the internal organs, which were examined after dissection of the body. Blood therefore could not have been found on the stick (danda), allegedly used by the appellant on the deceased. Besides the danda , Surinder Mohan, Sub Inspector, PW-12 had also recovered a semi burnt shirt of the deceased from the house of the appellant alongwith a driving Crl. Appeal No.D-589-DB of 2002 -11- licence and and identity card of the deceased. The occurrence had taken place probably during the night intervening 26th and 27th April 2000. It may be presumed that the assailant took off the shirt of the deceased and had attempted to burn the same. It is quite strange to note that not only the semi burnt shirt of the deceased but also the ash remained in the compound of the appellant till 12.05.2000. It also appears to be unbelievable that the appellant would preserve the driving licence and identity card of the deceased while he would attempt to burn his shirt. The driving licence and the identity card of the deceased were not pieces of value to the appellant, which could be of any use to the appellant lateron. They were moreover incriminating material against him which could lead the appellant to trouble at any time. The aforesaid reasons are sufficient to show that the conviction of the appellant cannot be sustained on this evidence. The other evidence on record is of formal nature providing no link between the appellant and the crime. In a recently circulated judgment of Hon'ble Supreme Court of India in Criminal Appeal No. 546 of 2011(arising out of SLP(Crl) No. 679 of 2001) titled as Md Sukur Ali v. State of Assam, decided on 24.02.2011, it has been held that a criminal case cannot be decided against the accused in the absence of his counsel. However, no such bar is there if the Crl. Appeal No.D-589-DB of 2002 -12- case is decided in favour of the accused in the absence of his counsel. In the light of the judgment, referred to above and in view of the discussion made above, we find that the prosecution has failed to lead sufficient evidence to prove its case against the accused. Consequently the appeal is accepted and setting aside the judgment of conviction and order of sentence passed against the appellant, he is acquitted of the charge framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required in any other case. ( HEMANT GUPTA) ( VIJENDER SINGH MALIK ) JUDGE JUDGE 07.07.2011 dinesh