Crl. Appeal No. 192-DB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 192-DB of 2000 Date of Decision : March 09, 2009 Baljit Singh @ Bita and others .... Appellants Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Suram Singh Rana, Advocate for the appellants. Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : Appellants Baljit Singh @ Bita, Sukhwinder Singh @ Gora and Harchand Singh @ Nikka stand convicted and sentenced by learned Additional Sessions Judge, Ludhiana vide judgment and order dated 11.01.2000. Baljit Singh @ Bita and Sukhwinder Singh @ Gora have been convicted under Section 302 of the Indian Penal Code (in short – the IPC), whereas Harchand Singh @ Nikka has been convicted under Section 302 read with Section 34 IPC. They have been sentenced to undergo life imprisonment and to pay fine of Rs.1,000/- each and in default thereof, to undergo further rigorous imprisonment for three months for the said offence. All the three accused have also been convicted under Sections 201 Crl. Appeal No. 192-DB of 2000 2 and 506 IPC and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.500/- each and in default thereof, to undergo further rigorous imprisonment for two months under Section 201 IPC and to undergo rigorous imprisonment for two years each under Section 506 IPC. To challenge their conviction and sentence as aforesaid, all the three convicts filed Crl. Appeal No. 192-DB of 2000 through counsel and also filed Crl. Appeal No. 228-DB of 2000 through jail against the same judgment and order of conviction and sentence. Accordingly, both these criminal appeals are being disposed of by this common judgment. Prosecution case, in brief, is as under :- Bhag Singh Jat Musalman resident of Village Ghungrana made statement Ex.P-E to Gurtejinder Singh, Station House Officer of Police Station Dehlon. Said statement was made on 26.09.1996 at 09:15 A.M. at the turning of Dehlon and on its basis, FIR Ex.P-E/2 was registered. Bhag Singh stated that Baljit Singh @ Bita used to sit at chabutra (common platform) in the village near the house of the complainant, to which complainant's younger brother Gurmel Singh @ Maru (since deceased) used to object, to prevent Baljit Singh from having evil eye on his (deceased's) sisters. However, Baljit Singh took ill of it. On 25.09.1996 at night, the complainant and the deceased went to purchase liquor from the liquor vend of their village on account of chhappar mela (fair). At about 09:30 P.M., while they were returning on foot after purchasing liquor, all the three appellants coming from opposite direction met them. They surrounded the complainant and the deceased. Baljit Singh remarked that they would teach lesson to Gurmel Singh for preventing him (Baljit Singh) from sitting on the common platform. Saying so, Baljit Singh slapped on the face of Gurmel Singh and scuffled with him. The complainant and the deceased started running. However, all the three appellants chased them and about 100 yards from the liquor vend, the appellants caught hold of Gurmel Singh and started beating him saying that they would eliminate him. The complainant Crl. Appeal No. 192-DB of 2000 3 getting scared hid himself in Narma cotton crop, but he was witnessing the occurrence in moonlight. Baljit Singh removed shirt of Gurmel Singh. Harchand Singh caught hold of the arms of Gurmel Singh, whereas Baljit Singh put the shirt around the neck of Gurmel Singh and tied it with a knot. Thereafter, Baljit Singh and Sukhwinder Singh pulled the shirt from right hand side and left hand side respectively. Gurmel Singh raised alarm, but after a while, he fell silent on the ground. The appellants said that the dead body of Gurmel Singh be set on fire. Baljit Singh put banana leaves on one side of the dead body and set it afire. It was also remarked that Bhag Singh complainant should also be eliminated, so that he might not become witness. The appellants searched for the complainant in the crop, but the complainant could not be located by them. In the morning, the complainant saw that his brother was lying dead and his clothes and some part of his body had got burnt. The complainant went to his house and narrated the occurrence to his father and brother Gulzar Singh, who came to the place of occurrence. The complainant along with Major Singh Sarpanch left for Police Station to report the matter. On the way, at the turning of Dehlon, police party headed by Gurtejinder Singh, SHO met them. The complainant made statement Ex.P-E, on which Gurtejinder Singh made endorsement Ex.P-E/1 and sent it to Police Station, where FIR Ex.P-E/2 was registered on its basis. Gurtejinder Singh went to the spot, where dead body of Gurmel Singh was lying. Many persons were present there. The spot was got photographed. Inquest report Ex.P-C of the deceased was prepared by Gurtejinder Singh. The dead body was sent for post-mortem examination along with request Ex.P-B. Rough site plan Ex.P-J of the place of occurrence was prepared. Some ash and two half-burnt matchsticks were seized from the spot vide memo Ex.P-F. At a distance of about 100 yards from the spot, one pair of chappals, one parna and one sealed bottle of liquor were found and were taken into possession vide memo Ex.P-G. The parna and the chappals were identified by Bhag Singh complainant and his Crl. Appeal No. 192-DB of 2000 4 brother Gulzar Singh to be of the deceased. Statements of witnesses were recorded. Medical board comprising of Dr. Parvind Pal Singh, Dr. Kuldip Chawla and Dr. Bhagwan Dass conducted post-mortem examination on the dead body of Gurmel Singh. Blood was present in both nostrils and coming out of mouth. Torn shirt around the neck with knot was there. Edges of pyzama of the deceased were having burn marks. The body also had some burns. The brain was congested at places, having tiny haemorrhages. Pleurae, larynx, trachea and both lungs were congested. In all, nine injuries including five abrasions, one bruise, burns at two places and a ligature mark were found. Injury no.9 i.e. ligature mark was found as under :- “9. Ligature mark on dissection, the underlying soft tissue rascia, blood vessels, nerves, muscles were found lacerated with haemotoma present and on further dissection hyord bone was found fractured.” Cause of death was opined to be asphyxia due to cloth around the neck leading to strangulation. Probable duration between injuries and death was immediate. Sealed parcel of clothes of the deceased given by the doctor was taken into possession by the police vide memo Ex.P-H. SI Savinder Singh arrested all the three accused. He also recorded statement of Harpal Singh, who over-heard the conversation of the appellants that Maru had been eliminated. On 27.09.1996, the appellants also made extra-judicial confession before this witness regarding murder of Gurmel Singh @ Maru committed by them and requested the witness to produce them before the police. Scaled site plan was also got prepared. On completion of investigation, all the three accused were sent for trial. Charge under Section 302 IPC against Baljit Singh @ Bita and Sukhwinder Singh @ Gora and charge under Section 302 read with Section Crl. Appeal No. 192-DB of 2000 5 34 IPC against Harchand Singh @ Nikka and charge under Sections 201 and 506 IPC against all the three accused was framed. They pleaded not guilty and claimed trial. To prove its case, the prosecution examined eight witnesses. Dr. Parvind Pal Singh (PW-1) stated about post-mortem examination of the deceased. Bhag Singh (PW-2) broadly stated according to the prosecution version narrated herein above. C. Inderjit Singh (PW-3) stated that he delivered special report of the case at the residence of Illaqa Magistrate at 12:00 noon on 26.09.1996. Satish Kumar, Architect (PW-4) stated that he inspected the spot and prepared scaled site plan Ex.P-D. Gurmeet Singh, Photographer (PW-5) stated that he had taken photographs at the spot. Harpal Singh (PW-6) stated that he had over-heard conversation of three persons that they had eliminated Maru. He also stated that on 27.09.1996 at night time, three persons, who told their names as Baljit Singh @ Bita, Sukhwinder Singh @ Gora and Harchand Singh @ Nikka, came to him and confessed before him to have murdered Gurmel Singh @ Maru on 25.09.1996. However, the witness stated that he could not identify the said persons as it was night time. He also stated that the accused are not the said persons. He was declared hostile and was cross-examined by the Public Prosecutor, but the witness denied that the accused had made the said confession. SI Savinder Singh (PW-7) stated about seizures made from the spot, as well as about seizure of sealed parcel of clothes of the deceased given by the doctor. He also stated that he arrested the accused and recorded statement of Harpal Singh – PW and got prepared scaled site plan. DSP Gurtejinder Singh (PW-8) stated about investigation of the case conducted by him. The accused in their statements under Section 313 of the Code of Criminal Procedure (in short – the Cr.P.C.) denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. Baljit Singh accused stated that the dead body was Crl. Appeal No. 192-DB of 2000 6 spotted on 26.09.1996 and many persons gathered there. Bhupinder Singh, employee of the liquor vend, identified the dead body and called the police to the spot. Family of the deceased was also informed. He (Baljit Singh) was arrested by the police at 02:00 P.M. on the same day and was falsely implicated in the case after deliberation and consultation. The other two accused pleaded that they have been falsely implicated on suspicion. No evidence was led by the accused in their defence. We have heard learned counsel for the parties and examined the case file with their assistance. On careful consideration of the entire material on record and taking an overall view, we find that the prosecution case against accused Harchand Singh @ Nikka is doubtful and he deserves benefit of doubt, whereas the prosecution has successfully proved its case against the remaining two appellants beyond reasonable doubt. Learned counsel for the appellants contended that there has been delay in lodging the FIR. Learned State counsel, on the other hand, contended that the said delay has been explained. Complainant Bhag Singh has stated that he remained hidden in the cotton crop throughout the night because the accused had been searching him so as to eliminate him as well to destroy eye-witness account of murder of Gurmel Singh. We have carefully considered the matter. There appears to be some delay in lodging the FIR. May be, the complainant was so scared that he did not come out of the field during the night. However, benefit of this delay may be given to Harchand Singh @ Nikka, but not to the remaining two appellants. On account of delay, some innocent person may also be roped in along with the real culprits. Bhag Singh complainant is none else but real brother of the deceased. So, the complainant would not like to real culprits to go scot-free and would not have implicated all the three accused falsely, although there is some tendency to rope in the innocent along with real culprits. For this reason, benefit of doubt may be extended to Harchand Singh @ Nikka. In this Crl. Appeal No. 192-DB of 2000 7 context, it is significant to notice that no active role has been assigned to Harchand Singh @ Nikka. The only allegation against him is that he caught hold of the arms of the deceased. However, Harchand Singh @ Nikka was neither involved in strangulation of the deceased nor involved in setting the dead body on fire. On the contrary, Baljit Singh @ Bita and Sukhwinder Singh @ Gora strangulated the deceased by pulling the shirt around the neck of the deceased from both sides and it was Baljit Singh, who set the dead body on fire. Consequently, the prosecution case against these two appellants is proved beyond reasonable doubt, whereas Harchand Singh @ Nikka, against whom no motive has either been alleged, deserves benefit of doubt. Learned counsel for the appellants contended that conduct of Bhag Singh complainant is very unnatural because inspite of being brother of the deceased, the complainant did not come forward to the rescue of the deceased. It was also contended that even after the occurrence, the complainant did not even go to the nearby liquor vend, which was only 40- 50 karams or 100 yards away from the place of occurrence. It was also pointed out that the accused were empty handed and still Bhag Singh did not make any effort to save his brother and it would show that Bhag Singh was not present at the spot at the time of occurrence. The contentions cannot be accepted. Bhag Singh explained in the FIR itself that the accused persons, after murdering Gurmel Singh, searched for the complainant in the field to eliminate him as well so that evidence of the occurrence was destroyed. Consequently, Bhag Singh became scared and kept hiding in the cotton crop to escape the wrath of the accused. In such circumstances, conduct varies from person to person. Some person may be bold enough to fight the culprits, but some other person may be timid or coward and would save himself instead of facing the culprits. The statement of Bhag Singh (PW-2) cannot be discarded merely because of his aforesaid conduct. On the other hand, his statement is corroborated to a great extent by Harpal Crl. Appeal No. 192-DB of 2000 8 Singh (PW-6). On the night of occurrence itself, he had over-heard three persons saying that Maru (the deceased), who was objecting to sitting on the platform, had been eliminated and Bhag Singh would also have been eliminated, if he had met them. Harpal Singh has also stated that three persons who disclosed their names and addresses as those of the appellants, came to him and made extra-judicial confession that they had murdered Gurmel Singh @ Maru on the night of 25.09.1996. Statement of Harpal Singh to this extent corroborates the testimony of Bhag Singh in material particulars. It is correct that Harpal Singh refused to identify the appellants being the persons, who had made the extra-judicial confession. However, the remaining part of his statement supporting the prosecution case is sufficient to corroborate the testimony of Bhag Singh to a large extent. In addition to the aforesaid, medical evidence also corroborates the prosecution case. Shirt of the deceased was found tied around his neck and there was corresponding ligature mark and death was caused by asphyxia due to strangulation with the shirt/cloth, which was found around the neck of the deceased. The complainant in the FIR also gave version that the deceased was strangulated by Baljit Singh and Sukhwinder Singh by tying the shirt of the deceased around his neck and pulling the same from both sides. Learned counsel for the appellants contended that the medical evidence does not corroborate the prosecution case because in addition to the ligature mark and burns, five abrasions and a bruise were also found on the dead body. However, this evidence is not contradictory to the prosecution version because it was mentioned in the FIR itself that Baljit Singh had slapped the deceased on his face and later on, all the accused started beating him. So, some minor injuries might have been caused by the said beating. Moreover, when after strangulation the deceased fell on the ground, then also he might have suffered some minor injuries due to fall. Medical evidence, thus, cannot be said to be contradictory to the ocular version stated by Bhag Singh complainant. Crl. Appeal No. 192-DB of 2000 9 Learned counsel for the appellants also pointed out that Sukhwinder Singh @ Gora and Harchand Singh @ Nikka had no motive to commit the crime. It is correct that motive has been alleged against Baljit Singh @ Bita (appellant no.1) alone. However, Harchand Singh @ Nikka is being extended benefit of doubt by us. Sukhwinder Singh @ Gora cannot be acquitted merely on account of absence of motive on his part because there is direct eye-witness account about guilt of this appellant and therefore, motive pales into insignificance. For the reasons recorded herein above, we find that prosecution case against appellant no.3 Harchand Singh @ Nikka is doubtful and accordingly, the appeals qua the said appellant are allowed and his conviction and sentence are set aside and he is acquitted of the charge against him giving him benefit of doubt. If in custody, he shall be released forthwith, if not required in any other case. However, the appeals qua remaining two appellants i.e. appellants no.1 and 2 namely Baljit Singh @ Bita and Sukhwinder Singh @ Gora are dismissed, being without merit. However, their all substantive sentences shall run concurrently. If on bail, they shall surrender to their bail bonds or shall be arrested to undergo the remaining part of their sentence. ( L. N. MITTAL ) JUDGE March 09, 2009 ( MEHTAB SINGH GILL ) monika JUDGE